AAUP v. Rubio and the Big Chill

Guest Blogger

Evelyn Douek

Since it was handed down last week, AAUP v. Rubio has been justifiably celebrated for its strong reaffirmation that the First Amendment protects the speech of noncitizens just as it does the speech of citizens. And there has been significant coverage of the rhetoric of Judge Wiliam Young’s “blistering,” “stirring,” “searing” rebuke of the Trump Administration’s campaign to deport noncitizens for their political speech, and the ways in which his 161-page opinion grappled with how to do justice in the Trump Era. Less attention has been paid, however, to a key jurisprudential move the opinion makes and its importance in this particular moment. AAUP v. Rubio marks the first case of the Trump Era to explicitly identify and reject the primary and most pernicious form of speech suppression employed by this Administration: Chill.

What makes the opinion novel is that the First Amendment rights it vindicates are not those of the non-citizens that the Administration has attempted to deport for their speech, but instead those similarly situated persons who are now chilled from expressing themselves freely. Mahmoud Khalil, Rumeysa Ozturk, and the many other noncitizens that have been rounded up for their pro-Palestinian speech were not before the court in AAUP v. Rubio—the various legal challenges to their deportations remain ongoing. Instead, the case was brought by organizations representing students and faculty who argued that the Administration’s practice of publicly targeting and making an example out of these other non-citizens chilled them in the exercise of their own First Amendment rights. As Judge Young correctly identified, the damage of this kind of chilling campaign to public discourse is in fact much more severe than any individual act of censorship.

This is because chill is an especially harmful but efficient form of speech control, as the Administration well knows. Direct censorship is laborious, ad hoc, and happens only after the fact. Chill, by contrast, is a form of prior restraint administered by the speaker themselves out of fear. And Judge Young found that it was exactly this kind of chill that the Administration set out to create.  The government never set out to “deport all pro-Palestinian non-citizens,” Judge Young observed. Instead, it set out to do something “more invidious—to target a few for speaking out … with the goal of tamping down pro-Palestinian student protests and terrorizing similarly situated non-citizen (and other) pro-Palestinians into silence.”

The harms of such chill in fact extend far beyond other non-citizens. As Judge Young took pains to emphasize, one of the reasons that the chilling campaign documented by AAUP v. Rubio has been so successful is because it has been “accompanied by the Trump administration's full-throated assault on the First Amendment across the board.” Once people are made to understand that the Administration will seek retribution against those that express disfavored views, no one can be sure they can speak with abandon. In this case, it was the department of Homeland Security that was weaponized to create chill. But in the future, it could be the “Federal Home Loan Mortgage Corporation, and the audit divisions of the I.R.S. and the Social Security Administration” that might be “unconstitutionally weaponized against the President's ever growing list of ‘enemies’ or opponents he ‘hates’ notwithstanding that political persecution is anathema to our Constitution and everything for which America stands.” Thus, AAUP v. Rubio is a decision about immigrants’ speech rights, to be sure. But it is also about so much more. It is about the protections that the First Amendment offers against this kind of intimidation.

The First Amendment talks big game about chilling effects. The cases tell us that First Amendment freedoms must be protected “not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference” because they are “delicate and vulnerable,” “sensitive,” of “transcendent value” and “supremely precious in our society.” They proclaim that “inhibition as well as prohibition against the exercise of precious First Amendment rights is a power denied to government.” That concerns about chilling effects are why, in an oft-quoted refrain reiterated by Chief Justice Roberts just a few years ago, First Amendment freedoms “need breathing space to survive.”

But despite all this lovely rhetoric, chilling effects can be hard to vindicate in court. Most obviously, people who are scared to speak are often scared to sue, and we owe the decision in AAUP v. Rubio to the brave plaintiffs and witnesses who overcame this fear to testify about the effects of the Administration’s actions on them. But more fundamentally, chilling effects can be hard to make cognizable through the dyadic model of adversarial litigation, with its reticence to adjudicate harms to third-parties not before the court. For this reason, many courts have recognized the chilling effects of the Trump Administration’s actions when vindicating the First Amendment rights of plaintiffs directly affected—law firms subject to retaliatory executive orders, for example, or faculty at universities the Administration is jawboning—but AAUP v. Rubio is the first decision to uphold a claim against the Trump Administration based on chilling effects alone. Outside this paradigm, courts have struggled to see the many ways in which this Administration wields governmental power to make people scared to speak freely.

But if the First Amendment promise of an “uninhibited, robust, and wide-open” public sphere is to be made a reality, it is clear we will need more decisions like AAUP v. Rubio, that recognize and protect against this Big Chill. It needs more courts to recognize that when the Administration retaliates against people for their speech, the harm goes far beyond Mahmoud Khalil, or Jimmy Kimmel, or any individual victim. Indeed, the harm is to all of us, whether or not we are directly affected or actually chilled, by impoverishing public discourse through the silencing of those that are.

AAUP v. Rubio is therefore a landmark decision that recognizes that chill is one of the most fundamental First Amendment injuries. But as Judge Young’s opinion also makes clear, as anathema as chill is to the First Amendment, it is also a constitutional injury that is difficult for courts to fix. He has ordered that there be a further hearing on the “delicate task” of crafting a remedy, to consider what a court might be able to do to thaw. But as Judge Young notes that the court is limited in the extent to which it can constrain the speech of public officials, and especially the president, which—by threatening dissenters with retribution—chills public discourse. In his opinion, it is clear the judge is wrestling with how courts can create a culture of respect for dissent and free speech when one does not already exist.

AAUP v. Rubio therefore both shows the full sweep and strength of the First Amendment in the protections it offers citizens and non-citizens alike against both direct censorship and indirect inhibition—but also its profound vulnerabilities that are being so effectively exploited. It is a reminder that courts can and must play an important role in protecting constitutional rights; but they cannot do it alone.

Evelyn Douek is Associate Professor of Law at Stanford Law School. You can reach her by e-mail at edouek@law.stanford.edu.