There’s been a lot of excitement about last month’s ruling by a federal judge in Boston that the Trump administration, in its efforts to deport college students holding objectionable political views, violated the First Amendment. Commentators have described the opinion by District Judge William G. Young as “blistering” and a “landmark” — and so on in that vein. And I’m pleased to see that the court tried to find a way to extend the protections of free speech to those present in the country on temporary visas.

But even though I’m in sympathy with the outcome, I find the celebrated opinion itself oddly unpersuasive, perhaps because the judge sets out to answer the wrong question. Appalled as I am by the administration’s assault on dissent, I wonder whether constitutional rights give us the proper lens through which to study what’s gone so constitutionally wrong.

Here’s a nice, clear democratic principle: The government should not keep track of what the people subject to its jurisdiction are saying — no surveillance, no recordkeeping, and certainly, no punishment. Yes, there are rare exceptions, but they must remain rare. Otherwise, debate suffers, which means that democracy suffers. Here’s a corollary: The government should neither be granted nor presumed to possess broad powers that would enable it to violate the principle.

As any libertarian will be quick to note, that’s not really a point about the rights of individuals; it’s a point about the structure and limits of government.

To see why, let’s turn to Association of American University Professors v. Rubio, the decision handed down by Judge Young. The plaintiffs — three chapters of the AAUP, together with the Middle East Studies Association — argue jointly that their members’ speech has been chilled by the crackdown on noncitizens who, in the words of President Donald Trump’s day-one executive order, “espouse hateful ideology” — in particular, speech that is pro-Palestinian or anti-Israel.

The deportations around which the case revolves arise from the exercise of the secretary of state’s statutory authority to deport visa holders for otherwise lawful “beliefs, statements, or associations,” but only if failing to do so would, in the secretary’s judgment, “compromise a compelling United States foreign policy interest.” The secretary holds the even broader authority to revoke a visa “at any time, in his discretion.”

These are breathtaking grants of authority about which, as scholars often complain, there’s remarkably little law. The issue before the court was whether the First Amendment limits those and similar discretionary federal powers over visa holders.

Young concludes that the secretary of state’s broad discretion does not extend to deporting visa holders on the basis of speech alone, no matter how odious; and he concludes further that it was speech, and only speech, which prompted the visa revocations at issue.

I’m a near-absolutist on free speech, so I like the outcome. But the opinion itself is problematic — sufficiently problematic, I suspect, to invite reversal on appeal. The difficulties emerge, I suspect, not from any inability to cope with the issues, but from the challenge of trying to fit into a First Amendment framework what’s really a problem of government power in a democracy.

The real challenge we face is the vast power we have concentrated in the federal government in general and in the presidency in particular. As much as we might talk about courts as checks on executive authority, the sad truth is that Congress has granted the president too much authority to check. Whatever lever of power a judge might refuse to let the administration use, there’s always another to tug. (See the Harvard litigation.)

Maybe it’s too late to imagine a smaller federal establishment with fewer powers. But as current events illustrate, if that’s the case, then the only real check is the ethical compass of the occupant of the Oval Office and those who advise him. Right now, they don’t seem to be pointing true north.

Stephen L. Carter is a Bloomberg Opinion columnist, a professor of law at Yale University and author of “Invisible: The Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.”

https://www.dailypress.com/2025/10/12/column-that-landmark-free-speech-ruling-misses-the-point/