The Biggest Sign That Trump May Already Be an Elected Autocrat
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Donald Trump's presidency has been colored in a dozen shades of censorship, up to and including prolonged detention for those who have engaged in pure and protected free-speech activities. Yet the Framers knew that the freedom of speech was absolutely central to liberty. On this week's Amicus Plus bonus episode, Dahlia Lithwick speaks to Cristian Farias, who covers the courts and the law for Vanity Fair. This week, he also launches a new podcast, in partnership with the Knight Institute, called The Bully's Pulpit: Trump v. The First Amendment . Their conversation has been edited and condensed for clarity.
Dahlia Lithwick: You've been covering the legal proceedings around Tufts Ph.D. student Rumeysa Ozturk, who was returned to Massachusetts after being held in ICE custody in Louisiana for 45 days.
Cristian Farias: In March she was taken off the streets. Nobody knew where she was. Her lawyers couldn't even find her. They raced to court to file a habeas corpus petition to try to get her released. A judge ordered Ozturk to not be taken out of the district of Massachusetts. Because the Trump administration doesn't know how to follow court orders, they didn't listen to the court ruling. They took her to an airport in Vermont the morning after—and then she was shipped to Louisiana, 1,600 miles away—and essentially divested the court of jurisdiction. For 45 days, she was in Louisiana, fighting for her release.
What was the basis for seizing her, revoking her visa, and keeping her detained?
The basis was literally an op-ed that she wrote for the student newspaper at Tufts. This was an article that she co-wrote with other people basically advocating for the end of the war on Gaza for Palestinian lives. The Trump administration determined that she is a threat to national security. In a statement shortly after her detention, the Department of Homeland Security said that she was engaged in pro-Hamas speech, which is definitely not what the student op-ed was about, but that's what they ran with and that's the basis for her detention. So she was basically a political prisoner of the Trump administration for 45 days, on the basis of her opinion. That's happening in the US right now.
People are being locked up for the views that they hold, for the things they believe in.
You were listening in on the hearing last week, at which she was ultimately ordered to be released . She had to Zoom in to the hearing in Vermont from Louisiana. It ultimately led to her release, but you've covered a lot of judicial proceedings, and you clearly experienced this as something akin to a body blow. Judge William Sessions III noted that her continued detention potentially chills the speech of the millions and millions of individuals in this country who are not citizens—any one of them may now avoid exercising their First Amendment rights for fear of being whisked away to a detention center. This feels as if it really is at the nexus of this project you're trying to do. This isn't just about deportations and seizures of visas. This is about chilling protected speech and the proposition that you don't have to be a US citizen to have your speech protected.
That's black-letter law. Since 1945, the Supreme Court has recognized that noncitizens, when they're here, also have First Amendment rights. The government can't just snatch them and deport them because they say they don't like something the government did.
I want to talk about this through the lens of a habeas petition. The same weekend that Rumeysa Ozturk was released from ICE custody, we had Stephen Miller telling us that maybe the executive branch is just going to suspend habeas rights because of this alien invasion. I wonder if Ozturk's case shines a light on why these petitions are so urgently necessary, even though probably most Americans don't know what they are and why they matter.
Habeas petitions are what's keeping many of these folks from basically being disappeared from their communities without ever being found. We see habeas petitions in the cases related to the renditions to El Salvador. We see habeas petitions in these cases where students are contesting their detention. To file a habeas petition is basically what ensures that you won't be sent to a black site or put in a prison without ever getting out.
I was really struck by the way it mapped onto that New York Times editorial last week by Steven Levitsky, Lucan Way, and Daniel Ziblatt , in which they suggested that the way we know authoritarianism has meaningfully taken hold in a country is when people become too afraid to criticize the government for fear of retribution. It's not just the chilling effect; it's that you are afraid that you are going to be punished for your words. And that feels as if it is the through line in the work you're trying to do now on Trump and speech rights: Students with student visas and the press are facing literal retaliation, and law firms are facing literal retaliation, and fired government workers can't speak. It suggests that if that's the test of whether we've reached what they call competitive authoritarianism, it is happening.
A lot of advocates are thinking long and hard about how to use the First Amendment as not just a shield but also a sword that they can wield to be able to combat the administration on these things.
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