Anti-Semitism and the First Amendment | Commentary

Within a few days after his inauguration, President Trump issued Executive Order 14188, declaring that “it shall be the policy of the United States to combat anti-Semitism vigorously, using all available and appropriate legal tools, to prosecute, remove, or otherwise hold to account the perpetrators of unlawful anti-Semitic harassment and violence.”  The enforcement of this policy was undertaken primarily by the Department of State and the  Department of Homeland Security. A sizable portion of their activity involved arresting, detaining, and deporting non-citizens, based solely upon their pro-Palestine or anti-Israel statements.  This policy was commonly referred to as “Ideological-Deportation.”

As a result of this policy, many non-citizen students and college faculty no longer participated in public protests; stepped back from leadership roles or participation in advocacy groups related to Palestine; abstained from public writing or scholarship and purged past writing and online posts; skipped classes or classroom discussion; and some faculty fled their home cities in the United States.

In March, two organizations commenced an action in federal court challenging the constitutionality of the practice.  AAUP and MESA v. Secretary of State Marco Rubio and Secretary of Homeland Security Kristi Noem, No. 25-10685 (D. Mass. 2025 WGY). The American Association of University Professors (AAUP) and the Middle East Studies Association (MESA) included thousands of faculty and students at universities across the country, many of whom are non-citizens permanently residing in the United States.

The complaint stated several causes of action, including claims under the First Amendment challenging the constitutionally of the policy and the government’s threats to punish non-citizens for constitutionally protected speech. The two organizations argued that enforcement of the policy disproportionately targeted individuals based on their viewpoints, effectively chilling free expression.

In July, following months of discovery and motions, the court held a two-week bench trial involving fifteen witnesses and reviewing 250 documents.  On September 30, the court issued a 161-page decision, ruling that: the Bill of Rights applies to non-citizens who are permanently residing in the country; the organizations have “associational standing”; the immigration legislation identified by the government does not relate to class-action claims for declaratory judgment and permanent injunctions; and that the government’s actions are a clear violation of the First Amendment’s guarantee of the right to speak, even against the government’s policy regarding anti-semitism.

There being a serious question as to how the Order would be framed, the court directed that there be a meeting with all parties to explore the options. The court directed counsel to appear in person and required remote access to be made accessible to the public and media. That meeting is now scheduled to take place on January 15, 2026.