Judge calls First Amendment questions raised by international student journalists ‘very important’

SAN JOSE, Calif. (CN) – A federal judge asked Wednesday whether to grant the Stanford Daily newspaper and two of its unnamed international writers broad declaratory relief against possible visa revocations and other penalties because of student reporting or expressions of support for Palestine.

During a one-day bench trial, U.S. District Judge Noël Wise frequently noted her concern about the structure and procedure of the case, which led to a rare proceeding in which both sides asked Wise to decide the judgment based on the transcript — just the testimony and underlying evidence — of another case, American Association of University Professors v. Rubio, without calling any other witness or plaintiff to testify.

“This feels messy and complicated, in a way,” Wise, a Joe Biden appointee, said before a court break. “And it’s a very important issue.”

IN American Association of University Professors In that case, U.S. District Judge William Young, a Ronald Reagan appointee, ruled in January that the government acted unconstitutionally through its policy of arresting, detaining and deporting non-citizen students and faculty who engaged in protected pro-Palestinian speech.

However, the lawyers of both sides in the case in question Wednesday told the judge that Young’s decision is not one she should look to to decide the legal issues at play, and the transcript of the other case should only be used to provide detail and context.

In theirs complaintthe plaintiffs say the Immigration and Nationality Act allows the Secretary of State to deport noncitizens, without judicial review, if their speech is determined to have compromised foreign policy interests. The publication and student journalists say the provision of the act that allows this is illegal on its face and applied to them based on their speech about Palestine.

Plaintiffs’ attorney Conor Fitzpatrick, an attorney with the Foundation for Individual Rights and Expression, said the statute allows violations of the First Amendment rights of noncitizens based solely on the secretary of state’s discretion and opinion. Stanford Daily and its international students are asking the court, in part, to declare that all constitutionally protected speech, including but not limited to op-eds or commentary on Palestine, is in fact protected.

Fitzpatrick noted that Wise could rule specifically for his clients or more broadly — essentially invalidating it — since it began to apply only under the Trump administration through immigration actions in response to lawful speech.

“Our position is any time someone’s opinion is a ‘but for’ reason to revoke a visa or do a removal, that’s unconstitutional, full stop,” Fitzpatrick said.

Assistant U.S. Attorney Kelsey Helland said the statute should remain in place and was specifically tailored by Congress to address issues “we cannot clear up in advance,” saying there are cases in which it is plausible that national security and foreign policy interests outweigh First Amendment rights.

“Congress could not have drafted this in a more narrow way,” Helland said. “He covered possible bases while creating a framework. He didn’t want to limit it on the front end,” he noted, saying the secretary of state’s determination creates a “back-end” check on how the statute could be implemented while “preserving and vindicating national security interests.”

On January 16, Wise released a command denying a motion to dismiss the case, saying the statute dampened speech and The Stanford Daily was entitled to relief, including blocking Secretary of State Marco Rubio and Homeland Security Secretary Markwayne Mullin from revoking visas or starting deportation because of protected speech. However, the Supreme Court decision of 2025 Trump v. CASA limited the ability of federal courts to issue nationwide injunctions that completely prohibit the implementation of federal policies.

Fitzpatrick pointed to two other cases to illustrate how the statute in question targets noncitizens who protest by using protected speech. Government arrests graduate student at Columbia University Mahmoud Halilafter protesting for Palestinian rights. His case is currently in legal limbo, after a complaints the court reversed a lower court ruling that his arrest was unconstitutional. In another case involving the statute, Tufts University student Rümeysa Öztürk, from Turkey, was prohibited and had his visa revoked after writing an op-ed critical of the school’s response to the Israel-Hamas war.

Helland said the Secretary of State determines noncitizen waivers on a case-by-case basis because protected speech involves “the nature of the speech and the speaker depending on a sliding scale of rights based on the speaker’s relationship with the US.”

He also said the plaintiffs’ Fifth Amendment and vagueness claims cannot stand because it is important for the federal government to “paint with a broader brush” regarding immigration policy.

Wise was skeptical of the government’s position that it didn’t need to inform non-citizens what kind of speech would get them in hot water.

“So you don’t know until someone is prosecuted?” she asked.

After hours of back-and-forth between Wise and both attorneys, she asked for a proposed order from each side, saying “there are a few things that have left me unsure.” She did not indicate where she currently stands on the plaintiffs’ claims. However, she acknowledged the work of Fitzpatrick and Helland as “excellent lawyers”.

“Both are knowledgeable about the issues and the law,” she said. “That’s nice to hear.”