Fifth Circuit Rules Against Civil Rights Activist DeRay Mckesson in Long-running Protest Rights Case

DENVER – The Tenth Circuit Court of Appeals heard arguments today in BERT v. Drummond, a major educational censorship case stemming from a 2021 law that has chilled classrooms across Oklahoma. Students and teachers argued that HB 1775, which prohibits instructors from “mak[ing] part of a course” eight prohibited concepts related to race and sex, is unconstitutionally vague and has caused a chilling effect for teachers. Similar laws and policies have popped up throughout the country at the state and local level, many of which have been found by district courts to be unconstitutional. BERT v. Drummond was the first federal case challenging such a law. “The law’s impossibly vague language, including a sentence with a triple negative, puts teachers in an impossible bind,” said Emerson Sykes, senior staff attorney with the American Civil Liberties Union’s Speech, Privacy, and Technology Project. “They can teach children about hard things in the world around them and risk losing their teaching licenses, or they can or self-censor and deprive students of important educational opportunities. This Court has the power to block the law and stop the chill.” In 2024, the federal court blocked the enforcement of two of the eight prohibited concepts that restrict K-12 instruction because they are vague, fail to let educators know what course material is prohibited, and could prevent discussions of a wide variety of ideas, including those that are the subject to current political debates. These provisions remain enjoined. The Oklahoma Supreme Court also clarified that the law does not apply to academic speech in higher education. “Today marks another step in the fight for Oklahoma K-12 teachers and students, who continue to face vague and confusing limits on their ability to speak and learn in the classroom,” said Megan Lambert, legal director for the ACLU of Oklahoma. “It is beyond time our students get back to having open and equitable dialogue about our country’s history — one that includes the experiences and viewpoints of people of color and other marginalized communities, without partisan and discriminatory restrictions. Our history as a state and country cannot be erased, and the ability to discuss and debate ideas, even those that some may find uncomfortable, is a crucial part of our democracy.” “We are asking the Tenth Circuit to finish the job,” said Maya Brodziak, senior counsel with Lawyers’ Committee for Civil Rights Under Law. “Students and teachers have suffered under the vagueness of this law for years, and countless Oklahoma children have been deprived of valuable opportunities to learn about themselves and the nation’s history. The First Amendment protects the freedom to learn.” Attorneys for the students and teachers further argue that HB 1775 violates students’ First Amendment rights to receive information and that the court should reject the government’s radical argument that class instruction is “government speech.” The suit was originally filed in 2021 by the ACLU, the ACLU of Oklahoma, Lawyers Committee, and McDermott, Will & Schulte LLP filed suit against HB 1775 on behalf of a broad group of public school teachers and students. For more information about the case, see here.

RICHMOND, Va. – Georgetown scholar Dr. Badar Khan Suri was at the Fourth Circuit Court of Appeals today asking the court to affirm previous lower court rulings that ordered the government to release him on bail. Exactly one year ago today, ICE grabbed Dr. Suri as he came home from an iftar celebration, put him on a plane, and then detained him for nearly six weeks at a private detention center in Texas known for its human rights abuses. To this day, the only justification for Dr. Suri’s arrest remains his advocacy in support of Palestinian rights and his family ties to Gaza. “When I came to America to study how governments descend into authoritarianism, I could never have expected to be living the very research I came here to do, and yet today marks exactly one year since I was brutally taken from my family and unjustly imprisoned by the U.S. government for voicing my opposition to Israel’s atrocities in Gaza,” said Dr. Badar Khan Suri. “I’m grateful to be standing here as a free man, but terrified that it could be taken away from me at any moment. I am asking the Fourth Circuit to affirm what every American schoolchild is taught, that in this country, you cannot be thrown in prison for speaking truth to power.” In its appeal, the administration took a narrow view of the courts’ habeas jurisdiction, arguing that because it quickly swept Dr. Suri out of Virginia without notice to his family or lawyers, the Virginia court does not have jurisdiction to hear his petition, and that it should be handled by a court in Texas. It also argued that no federal district court has authority to review the constitutionality of Dr. Suri’s detention until the executive branch finishes its own administrative immigration process, which can take months or years. “The First Amendment protects all of us, regardless of our political opinions or associations – and we all deserve speedy protection from the courts when that right is infringed upon. When the government ignores those rights to go after a peace studies scholar, we’re all in danger,” said Noor Zafar, senior staff attorney with the ACLU’s Immigrants’ Rights Project. “The government's attempt to weaponize immigration law to silence dissent and take away someone’s liberty is unconstitutional and should worry every person in this country. We won’t stop fighting to keep Dr. Suri free, and home with his wife and children where he belongs.” In court, Dr. Suri’s legal team explained that the federal court in Virginia has jurisdiction over Dr. Suri’s habeas petition, and he must remain free while his case is considered. “Courts have always been an important check on unlawful government attempts to silence and retaliate against people for their speech, and Dr. Suri’s case should be no different. The Trump administration is trying to silence speech it doesn’t agree with by targeting people like Dr. Suri and Mahmoud Khalil, but ideas are not illegal,” said Geri Greenspan, senior staff attorney with ACLU of Virginia. “Americans don't want to live in a country where the federal government can lock people up just because it doesn't like their views.” Dr. Suri is challenging his arrest and detention under the First Amendment, the Due Process Clause of the Fifth Amendment, and the Administrative Procedure Act. He is represented by the American Civil Liberties Union, the ACLU of Virginia, the Center for Constitutional Rights, and Van Der Hout LLP.

The ACLU is in court this week with Dr. Badar Khan Suri fighting the Trump administration’s unconstitutional attempt to re-detain him for exercising his First Amendment rights.

NEW YORK — After an immigration judge tossed the case against Mohsen Mahdawi last month, citing the government’s failure to authenticate evidence, the government has asked the Board of Immigration Appeals to resume deportation proceedings. Mr. Mahdawi was detained in ICE custody in April 2025 for over two weeks in retaliation for his speech in support of Palestinian human rights. “This is another cruel step in the government's continued retaliation campaign against our client,” said Cyrus Mehta of Cyrus D. Mehta & Partners PLLC. “Their attempts to punish him for his constitutionally protected speech about Palestine have been reckless and shameful, and this appeal amounts to them grasping at straws. We look forward to the day that Mohsen can focus his attention where it belongs: on his studies, on his advocacy for peace, and on seeking justice in his communities without worrying about the government violating his rights again.” Mr. Mahdawi’s legal team has filed a cross-appeal asking the Board of Immigration Appeals to terminate the case with prejudice to prevent the government from refiling the case. In February, an immigration judge terminated the case against Mr. Mahdawi because the government failed to authenticate their primary piece of evidence, a memorandum purportedly from Secretary of State Marco Rubio claiming that Mr. Mahdawi’s protected political speech constituted a threat to U.S. foreign policy. “This appeal is not about me,” said Mohsen Mahdawi. “It is about whether the Trump administration can weaponize immigration law to silence dissent and punish those who dare to speak against Israel’s genocide and aggression. I stand not only for the freedom of Palestinians or for my own constitutional rights, but for the sacred promise that in America no human being should fear losing their liberty for exercising their First Amendment rights, including speaking for human rights and against wars.” Mr. Mahdawi was released from ICE custody on bail on April 30, 2025, after filing a habeas petition in the United States District Court for the District of Vermont in which he argued he was wrongfully detained in retaliation for his constitutionally protected speech. His habeas proceedings are ongoing. The news of the immigration appeal and cross-appeal were conveyed to the U.S. Court of Appeals for the Second Circuit in a supplemental authority letter on Monday morning. “These proceedings in immigration court highlight the need for judicial review of habeas claims challenging irreparable First Amendment harm from immigration detention,” said Nate Freed Wessler, deputy director of the Speech, Privacy, and Technology Project. “The government has not even bothered to authenticate their so-called evidence against our client, yet they claim they should have the right to keep him detained until they’ve run out the clock on the lengthy immigration court process. It’s ludicrous and it’s an affront to our bedrock constitutional protections.” Mr. Mahdawi is represented in both immigration and federal court by Cyrus Mehta and David Isaacson of Cyrus D. Mehta & Partners PLLC and in federal court by Luna Droubi, Matthew Melewski, and Tala Alfoqaha of Beldock Levine & Hoffman LLP; Andrew Delaney of Martin Delaney & Ricci Law Group; CLEAR; the American Civil Liberties Union; and the ACLU of Vermont.