The right of the people to freely speak, in public — and peacefully — about errors their government makes… cannot be abridged. That has been the law, for over 240 years.
So Ms. Chung, a rising Senior at Columbia University — present in the US lawfully — absolutely possesses that same right. While the government appeals, she cannot be continually muzzled, on the vain and malignant threats of Noem and Rubio and Miller.
That too is black letter federal law. Here’s the latest on this case — copiously citing the very recent precedents — of Mr. Khalil’s case:
…Consistent with the foregoing, district court proceedings in similar cases have continued contemporaneously with appeals from orders granting preliminary relief — including appeals challenging subject matter jurisdiction. See, e.g., Öztürk v. Hyde, No. 25-cv-374 (D. Vt.), ECF 139 (ordering briefing on discovery during appeal); Khalil v. Trump, 25-cv-1963 (D.N.J.), ECF 200– 230, 322–370 (proceedings held during pendency of appeals challenging jurisdiction); Mahdawi v. Trump, No. 25-cv-389 (D. Vt.), ECF 77, 78, 80 (briefing on discovery during appeal). But see id. at ECF 81 (discretionarily deferring adjudication of motion for discovery until resolution of appeal heard on expedited basis). Notably, although the government has opposed proceeding with discovery during the pendency of appeals in similar cases, it has not argued that the mere pendency of the appeal per force deprives the district court of jurisdiction to proceed. See Öztürk, ECF 155; Mahdawi, ECF 78. The government has not taken that position in this case, either. See ECF 62. For the foregoing reasons, we believe that this Court retains jurisdiction to conduct discovery.
Further, staying this case pending resolution of the appeal would indefinitely prolong an ongoing harm in the form of chilling Ms. Chung’s speech and inflicting reputational and occupational harms as a result of the still-operative Rubio Determination and application of the challenged Policy to her. As to speech, the Supreme Court has held that chilling constitutes irreparable harm necessitating immediate relief. See, e.g., Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion); Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 794 (1988). This authority is fully applicable here. Indeed, in Khalil v. Trump, the district court found that “the Secretary of State’s determination”—the very same document which contains the Rubio Determination at issue in this case, naming both Ms. Chung and Mahmoud Khalil—“chills [] speech,” such that “even if the Petitioner were not detained. . . the Secretary’s determination would deter him from speaking.” No. 25-cv-1963, 2025 WL 1649197, at *5 n.11 (D.N.J. June 11, 2025)….
The district court in Khalil further found that the Rubio Determination and application of the Policy caused irreparable reputational and occupational harms, id. at *2–5; Khalil v. Trump, No. 25-cv01963, 2025 WL 1983755, at *2 (D.N.J. July 17, 2025) (“Reputational harm” and “[p]rofessional harm” “can count as irreparable injury, and the Court finds as a factual matter that they do here.”) That rationale is fully applicable to Ms. Chung, a rising senior at Columbia who has pursued legal internships and who will be seeking employment or admission to law school in the next year. The reputational, occupational, and speech harms of the Rubio Determination — which absurdly labels her a foreign policy concern, exposes her to the threat of removal, and has not been withdrawn nor enjoined in its operation as to her — are of paramount concern.
This concern is particularly acute here, where the appeal will proceed on an ordinary schedule, with the government’s opening brief due on October 24, 2025, such that the matter will likely not be submitted to a merits panel until spring of 2026. Compare Chung v. Trump, No. 25-1660 (2d Cir.), ECF 29-1, with Khalil v. Joyce, 25-cv-1963 (D.N.J.), ECF 370 (setting expedited briefing schedule to be completed by September 24 and argument to be held no later than October 23 on appeal taken from June 20 and July 17 orders).
Thus, if this Court opted to wait, even if Ms. Chung prevailed on appeal, her district court case likely would not proceed until 2027, or perhaps later if the government seeks en banc review as it has in Mahdawi and Öztürk.
As a practical matter, halting this proceeding leaves in place the government’s viewpoint discriminatory and retaliatory policy. But the government having interposed a jurisdictional objection to this Court’s preliminary injunction order does not and should not delay proceeding to the merits of this dispute. Cf. Khalil v. Joyce, — F. Supp. 3d. –, 2025 WL 1232369, at *49 (D.N.J., 2025) (“[W]hen it comes to here-and-now First Amendment injuries, the law requires a faster pace.”)….
Onward, resolutely. We, the people… cannot allow Rubio / Noem / Tangerine 2.0… to dictate what we may think and say in public, peacefully. We cannot. That is what is at stake here. Out.
नमस्ते
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