The Impending Threat to Due Process & Freedom of Speech
Due process and freedom of speech are under attack in the United States. It is up to us, The People, to defend both rights against would-be and current abusers.
If you’ve been following the news, you know that the Trump-Vance Administration is refusing to facilitate the return of Kilmar Abrego Garcia from an El Salvadoran prison despite a 9-0 Supreme Court ruling. Although the Administration admits that it mistakenly identified Garcia as a member of MS-13, it has spun the narrative that it is powerless to return Garcia, a legal asylum seeker, to the United States because it has no authority over what happens in El Salvador.
To get a better understanding of the case, let’s look at some facts about Garcia. In 2019, Garcia, a citizen of El Salvador, was granted asylum in the U.S. by an immigration judge. In the order, the judge presented the following facts about Garcia and his situation in El Salvador:1
He was born in El Salvador
His family ran a stuffed tortilla store out of their home
A local gang—Barrio 18—extorted the family for money
If the family failed to pay, Garcia would be forced to join Barrio 18
Garcia was forced to join the gang at 12 years old after his father, Cesar, left for the United States
Garcia was sent to the United States to escape the gang in 2019
If he was not granted asylum in the United States, the gang would seek retaliation
Between October 2019 and March 2025, Garcia committed no crimes in the United States. There’s also no strong evidence that Garcia had a criminal record in El Salvador prior to his granting of asylum in 2019. What we do know is that while in the United States, Garcia worked various odd jobs, got married, and raised a family. Despite not being a citizen, Garcia seemed to live an ordinary American life.
So, on March 17, 2025, when he was abruptly sent to El Salvador’s Centro del Confinamiento del Terrorismo (CECOT), one of the worlds most dangerous prisons, it was a shock to his family and those who knew him.
Since Israel’s response to Hamas’ October 7, 2023, attack, there has been widespread protests across university campuses in support of the Palestinian people. While these protests have sparked controversy due to many incidents of antisemitism, it is my view that these students were simply exercising their First Amendment rights to speech and assembly. Remember, the First Amendment protects all speech, even hate speech.
There are 1.1 million international students studying in American universities. Since taking power, the Trump-Vance Administration has undertaken a concerted effort to cancel student visas for thousands of international students based, largely, upon their participation in pro-Palestinian protests. One such student who had her visa revoked was Tufts University doctoral candidate Rumeysa Ozturk.
Ozturk was detained by immigration authorities in March outside of her apartment without warning. If you saw the video, you can imagine the fear she felt when masked men approached her and took her away without warning. Her crime: co-authoring an editorial in Tufts’ student newspaper sympathizing the student protestors. Ozturk now sits in an ICE facility in Pine Prairie, Louisiana, where she has limited access to food and is being refused medical treatment for her asthma.
To many Americans, both Garcia’s and Ozturk’s stories seem like cut-and-dry instances where the Administration is keeping a campaign promise to make America safe again. Its actions are nothing more than attempt to crack down on violent crime wrought by illegal immigrants and outside agitators. Even if innocent people are caught up its drag net, shouldn’t we want to keep American citizens safe?
Sure. That seems reasonable. We all want to live in a safe country. But we also want to live in a free country.
This may seem hyperbolic, but constitutional warning signs are blaring loudly. If well-meaning and free thinking immigrants are denied basic constitutional protections, who is to say that American citizens may not suffer the same fate?
Consider this. In his meeting with El Salvadoran President Bukele on April 14, Trump proposed sending American citizens to CECOT. Despite this clear violation of law, some in the Trump-Vance Administration have considered ways to skirt around the Constitution by designating certain holding facilities, perhaps including CECOT, in El Salvador as American territory. Are they coming for us?
The defining feature of the Constitution is its protection of minority rights against the tyranny of the majority. To circumvent the crushing authority of majority rule, the Founding Fathers created three branches of government—the Legislative, Executive, and Judicial—each with checks and balances on the others. The Constitution also protects the inalienable rights of all people living in the United States from being trampled upon by those in power.
Read the Bill of Rights. Despite (purposeful) misunderstandings to the contrary, nowhere in the Bill of Rights does it state that only citizens are protected from government intrusion in the practice of their religion, the freedom of speech, protection from unreasonable search and seizure of property, and the right to a jury trial in criminal matters. The Bill of Rights applies to all people living in the United States, regardless of their citizenship.
We have a grand history of speech and expression in this country, particularly against tyrannical government overreach. In the Colonial Era, the Sons of Liberty formed in opposition to the Stamp Act. They held public protests, gave speeches, and threw tea into the Boston Harbor. Their actions were a necessary display of civil disobedience.
In 1798, John Adams signed the Alien and Sedition Acts. The Alien Enemies Act (now used by Trump to remove foreign nationals) allows the president to detain non-citizens during wartime, invasion, or predatory incursion. The Sedition Act criminalized false and malicious statements about the federal government. The Sedition Act sparked outrage across the young country and the promise to overturn it was a key factor in Thomas Jefferson’s victory in 1800.
The freedoms protected by the First Amendment allowed Frederick Douglass to give rousing speeches throughout the Northeast. The freedom of expression and assembly granted women the right to gather at Seneca Falls to fight for the equal treatment of women. Both of these freedoms allowed Nazi sympathizers to rally at Madison Square Gardens in the 1930s and gave cover to the Ku Klux Klan who wished to keep their membership secret.
Regardless of the speech’s content, unless it causes a direct and imminent harm, such speech is protected by the First Amendment. That is a right to be celebrated, not scorned. The same is true of due process.
The Due Process Clause of Fourteenth Amendment to the United States Constitution reads:
…nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the laws.
The Due Process Clause requires the government to provide adequate protections to all people living in the United States before subjecting them to criminal punishment or civil removal. The government must afford all people equal treatment under the law, whether it is the right to notice and a hearing or the processes which must be followed for those charged with a crime.
We may not like the outcome that due process provides. But, if the people were not afforded the rights that the Due Process Clause protects, the government could easily trample upon our freedoms by unjustly convicting us of crimes or subjugating us to its immense power.
The Bill of Rights and the Due Process Clause serve as constitutionally protected checks on government intrusion in the lives of all people living in the United States. We are—and should be—fearful of government overreach. That is, after all, the purported purpose of the Second Amendment’s right to bear arms. We declared our independence from England specifically because the King and his rubber-stamp Parliament infringed upon the fundamental and basic human rights of the Colonists. In fact, if we look at the Declaration of Independence, the Founders’ grievances against the King and Parliament include those reflected in the plight of Garcia and Ozturk:2
Impeding immigration laws and refusing to encourage immigrants to the United States
Obstructing justice and refusing to implement an independent judiciary
Using the power of his office to intimidate and harass the people
Removing people at random and subjecting them to foreign laws
Refusing to provide due process in the administration of “justice”
We are approaching the 250th anniversary of the signing of the Declaration of Independence. Although we live in relative peace and prosperity now, we must not forget that fear of state power lies at the heart of our origin story as a country. If we allow the government—no matter who is in charge—to trample upon the rights of those lawfully and peacefully living here, we do so at our own peril. You give a mouse a cookie…well, you know the rest.
We take our human liberties for granted. In a weird way, perhaps that is the problem with the Constitution: our rights to free speech, expression, and due process are so protected that we forget the ever present threat of tyranny. Perhaps we are so far historically removed from tyrannical government that we have become complacent in our duties to guard against its incursion in the lives of those living here?
If we want to remain a free society, however, we cannot and we must not accept the government’s mistreatment of Garcia and Ozturk. Are they citizens? No. But are they constitutionally afforded the same protections as citizens? Yes.
There is a famous poem by German Pastor Martin Niemöller that reads:
First they came for the Communists
And I did not speak out
Because I was not a Communist
Then they came for the Socialists
And I did not speak out
Because I was not a Socialist
Then they came for the trade unionists
And I did not speak out
Because I was not a trade unionist
Then they came for the Jews
And I did not speak out
Because I was not a Jew
Then they came for me
And there was no one left
To speak out for me
My mind returns to this poem each time I hear about another immigrant or marginalized group who are denied their fundamental human and constitutionally protected rights. Our jobs, as Americans, is to protect and uphold the basic human freedoms of all people living in this great country. If we fail to do so, even for those with whom we disagree or for whom we dislike, then we may suffer their same fate; we may provide the government permission to encroach upon and curb our own basic human freedoms.
I do not mind if you are a Trump supporter. But as a fellow American, one concerned about the government’s burden and imposition into your life and family, you should be fearful that, yes, even the person you voted for, may use the power of his office to disenfranchise you, to threaten your rights and liberties. If we cannot stand up for others sharing those same protections afforded them by the Constitution, then who will stand up for us?
So, what are we, average Americans, to do about the impending threat to our freedom of speech and due process rights? How can we remain vigilant against a government hellbent on catering to the whims and fancies of one man and his sycophantic minions? I can think of three answers to those questions.
First, we must reread our Founding Documents. It is one thing to read a Substack article about what these documents say, it is another to absorb the source material. When you read the Declaration of Independence, the Federalist Papers, and the Constitution, you will see for yourself that our Founders worried about state encroachment into the lives of ordinary people. They put in place safeguards to protect against this encroachment. In fact, the Bill of Rights came about as a promise to state delegations concerned about the Constitutions original lack of protection for individual liberty.
Second, it’s time to organize. Protests have popped up in cities across the country. There were massive protests in New York recently. In my hometown of St. Louis, concerned citizens have gathered on street corners and downtown to show their disapproval of this Administration’s policies. But protests have limited effectiveness without concrete organization. Many of the fights over these fundamental freedoms will occur in the courts. Lawyers with the requisite knowledge to wage these battles must share their know-how with other lawyers so that they can protect the freedoms of threatened individuals in their communities. I am a lawyer, but I have no clue how to litigate an effective suit to protect freedom of speech or sue for habeas corpus. Organization and knowledge-sharing are key to fighting for the rights of all people living here.
Lastly, we need to apply pressure. Whether it is calling your Congressperson’s office everyday or boycotting businesses like Amazon and Facebook who curry favor to the Trump-Vance Administration, we must apply the appropriate pressure to those in power—and those who support the people in power—to force them to internally resist the Administration’s policies.
We are living in perilous times. The threats to liberty for those lawful immigrants living in the United States also pose threats to us. If we, The People, allow this government intrusion and regulation of speech and expression to continue, we may be fated to destroy for ourselves the very fabric of our constitutional order. We are free because of our humanity. Let’s not let the government take that away from us.
Read the full order here: https://storage.courtlistener.com/recap/gov.uscourts.mdd.578815/gov.uscourts.mdd.578815.1.1_3.pdf
Don’t believe me? Read the Declaration of Independence here: https://www.archives.gov/founding-docs/declaration-transcript