The ABCs of Free Speech with Emerson Sykes

PHILADELPHIA — Today, Mahmoud Khalil’s legal team asked the full Third Circuit Court of Appeals to re-consider the three-judge panel’s 2-1 decision overturning a lower court’s orders releasing Mr. Khalil on bail and barring the government from detaining or deporting him based on Secretary of State Marco Rubio’s vague and unsupported assertion that Mr. Khalil’s lawful protected speech would “compromise a compelling U.S. foreign policy interest.” The panel decision would effectively block anyone in immigration proceedings from challenging their detention on First Amendment grounds in federal court until those proceedings are complete, no matter how long they may take or how unconstitutional the basis for their detention. “There is no world in which Mahmoud should be torn away from his family for a second time and sent back behind bars for his protected speech,” said Brett Max Kaufman, senior counsel in the ACLU’s Center for Democracy. “In this country, the government cannot punish people just because they don’t like what they have to say, and it is imperative that federal courts are immediately available to halt unconstitutional detentions. That’s what the district court did here, and we think those orders should and will be upheld in the end.” Back in June, the court found that Mr. Khalil was likely to succeed on the merits of his constitutional challenge to his detention and attempted deportation on the Foreign Policy Ground, and it ordered his release on bail based on the extraordinary circumstances of his detention, including the government’s failure to produce any evidence of flight risk or dangerousness. A federal judge granted Mr. Khalil’s request for a preliminary injunction after concluding that he would continue to suffer irreparable harm if the government continued efforts to detain and deport him on the basis of Secretary of State Marco Rubio’s determination. In January, two judges on the Third Circuit panel ruled that the lower court’s order should be overturned, without evaluating the merits of his constitutional claims, but because they held the federal court did not have jurisdiction to even consider ordering Mr. Khalil's release for the months or years his immigration proceedings remained ongoing. However the third judge, the Honorable Arianna Freeman dissented, concluded that under Third Circuit and Supreme Court precedent, a federal court can hear Mr. Khalil’s “now-or-never claims” because without immediate federal review, Mr. Khalil will suffer irreparable harm from detention that cannot be remedied after the executive branch’s own administrative immigration process runs its course. As Judge Freeman further explains, the majority opinion “renders meaningful review hollow," and “only this habeas petition can provide Khalil meaningful review of the First Amendment harms from his detention.” The Trump administration and Department of Homeland Security (DHS) illegally arrested and detained Mr. Khalil in direct retaliation for his advocacy for Palestinian rights at Columbia University. Shortly after, DHS transferred him 1,300 miles away to a Louisiana detention facility — ripping him from his then eight-months pregnant wife and legal counsel. During the 104 days he remained in ICE custody, Mr. Khalil missed the birth of his first child. “Federal courts must have the power to step in when the government exploits our country’s immigration system to punish people for their protected speech,” said Bobby Hodgson, Assistant Legal Director at the New York Civil Liberties Union. “This case goes to the heart of what the First Amendment protects: if the Trump administration can target, arrest, and deport Mahmoud for his speech, they can do it to anyone expressing an opinion they disagree with.” Earlier this month, Mr. Khalil’s legal team filed an appeal with the Board of Immigration Appeals (BIA), which is controlled by the Department of Justice, asking that it reverse a lower immigration court’s unprecedented decision to sustain a baseless, after-the-fact charge related to his green card application and asking that it terminate the proceedings entirely. As detailed in their appeal, this charge was retaliatory and only added after Mr. Khalil challenged the government’s violations of his constitutional rights. Mr. Khalil is represented by Dratel & Lewis, the Center for Constitutional Rights, CLEAR, Van Der Hout LLP, Washington Square Legal Services, the American Civil Liberties Union (ACLU), the New York Civil Liberties Union (NYCLU), the ACLU of New Jersey, and the ACLU of Louisiana. For all case materials, please see here, here, and here.

Legislation includes a “duty of loyalty” of participants in an ID system to individuals

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WASHINGTON, D.C. -- Today, the Supreme Court decided in Cox v. Sony, a landmark copyright case, that internet service providers (ISPs) should have limited copyright liability for user behavior that infringes copyrighted materials. The decision is a win for freedom of expression online. An amicus brief on behalf of the American Civil Liberties Union, the ACLU of Virginia, and the Center for Democracy and Technology, authored by leading copyright scholars with the firm Lex Lumina, urged the court to limit the circumstances where service providers could be subject to secondary copyright liability last fall. The Court reviewed a decision by the Fourth Circuit that inflicted massive penalties on an ISP that failed to routinely shut off Internet access for IP addresses based on a copyright holder’s mere accusation that the address had been used to infringe on copyrighted materials. In practice, that holding would have forced ISPs to shut off Internet access for entire families, businesses, hotels, airports, and libraries, all because of an allegation of infringement against one user. This kind of collective punishment has troubling implications for online speech. “If defined too broadly, secondary copyright liability for internet-service providers can pose a serious threat to free speech online,” said Evelyn Danforth-Scott, staff attorney with the American Civil Liberties Union. “The ruling below gave internet service providers every incentive to shut off internet access first and ask questions later. In our increasingly connected and digital world, where we use the internet to speak, listen, research, and create, limiting this kind of liability helps safeguard all of our First Amendment rights.” “First Amendment interests are at risk when an Internet service provider like Cox risks crippling liability just because a relative few of their customers are violating copyright law,” said Jennifer Granick, surveillance and cybersecurity counsel with the ACLU’s Speech, Privacy, and Technology Project. “Internet service providers can’t see or remove copyright infringing material moving through their system, and the ruling below would have forced them to block anyone using a flagged IP address from using the Internet. We’re pleased that this Court limited the scope of contributory copyright liability to protect people’s First Amendment interests in accessing the wealth of Internet-stored information and in making their voices heard online." The case arose when several record companies and music publishers, including Sony Music Entertainment, sued Cox Communications, an Internet service provider, for not kicking users off their services who had allegedly used file sharing technologies like BitTorrent. In Sony’s telling, Cox’s failure to block IP addresses flagged by copyright holders contributed sufficiently to the end users’ infringing activities as to subject Cox itself to statutory copyright liability. A jury awarded Sony and its co-plaintiffs a billion dollars in damages, and in 2024, the Fourth Circuit Court of Appeals affirmed in part: It held that Cox Communications was liable for secondary copyright infringement because it hadn’t taken enough steps to disconnect users who were allegedly downloading pirated works. The ACLU brief urged the Court to take a narrower view of secondary copyright liability by adopting the same contributory liability rules that apply in other contexts to make sure speech distributors don’t unduly constrain the marketplace of ideas. In Smith v. California, for example, the Court held that imposing criminal liability on a bookstore for selling obscene books would incentivize them to stringently self-censor, stripping the shelves bare to avoid any potential fines or punishment. Similarly here, broadly-defined secondary copyright liability would give ISPs a strong incentive to bar users from the Internet based merely on an unproved accusation of illegal activity at their IP address. As in Smith, the brief argued, passive inaction in the face of unverified complaints should not be a basis for liability, and in today’s ruling the Supreme Court agreed. The brief, filed in September by the American Civil Liberties Union, the ACLU of Virginia, and the Center for Democracy and Technology, represented by co-counsel Lex Lumina LLP, Professors Chris Sprigman, Rebecca Tushnet, and Mark Lemley can be viewed here. This case is a part of the ACLU’s Joan and Irwin Jacobs Supreme Court Docket.