A Snapshot of Quickly Moving Events 

One hallmark of the current chaotic situation in the U.S. is that events are developing at lightning speed. Much commentary is written about them as they happen, but it can be difficult at times to comment on them from some larger perspectives. By the time one gets to those thoughts, the events have changed significantly, and the picture has shifted. A hot topic one week feels stale and outdated the next, replaced by different chaos. This post seeks to freeze one period in time in those quickly moving events, to critique the pictures presented by that snapshot in time.  

The U.S. Government (“Government” or “the Government”) is aggressively targeting people via its immigration system, often based on flimsy or no evidence, without due process, and with accompanying false narratives about alleged criminality of those it targets. These developments are happening so quickly that it can be disorienting, and perhaps that is the intention. A common theme across a number of these incidents is action by the Government to suppress speech. Images have emerged from the past few weeks, painting a picture of a stark fight between free speech and retribution under the immigration system for that exercise of free speech.  

In my last post, I critiqued the treatment of 238 Venezuelan nationals, who were rushed with no due process out of the country ahead of (and arguably in defiance of) a court order that their flights be stopped. I mentioned that there have been reports that the detainees were selected on the basis of immigration status, national origin, and tattoos, although the U.S. Government has denied that tattoos played a prominent role. This raises layers of questions, especially since tattoos can sometimes be a form of speech in themselves. 

It cannot be credibly disputed that the U.S. Government is currently acting on numerous fronts to suppress particular forms of speech, and the current focus has been in specific areas, such as against academia, against law firms, against media, and largely in the context of immigration. There is and will be much discussion as to whether the U.S. Government is violating the free speech provision of the First Amendment to the U.S. Constitution through its various initiatives. I acknowledge these debates, especially where, again, the Government is obviously targeting particular forms of speech based on content. It does so while publicly claiming to be acting to protect people from past limitations on free speech. See eg here. That particular debate is obviously important, and it is being discussed in commentary and before the courts, but this post addresses a different point on these scenarios. 

This post focuses on the narrative power of images, and three recent images have involved situations in which the U.S. Government is suppressing speech, particularly among noncitizens and in a manner that is often intimidating. In all three cases, the specific images present differing narratives.  

One is an image of an “Autism Awareness” tattoo, next to a picture of a detainee with his younger brother, for whom he reportedly got the tattoo. The second is a publicity post by a U.S. Government official in El Salvador, which may not have played as she intended. The third is the U.S. Immigration and Customs Enforcement (“ICE”) “arrest” of a graduate student at Tufts University in Massachusetts, which may or may not have been intended to be recorded, but which fits with a pattern of government intimidation either way. 

The First Image: Tattoos and Free Speech: Stopping TdA or Stopping Autism Awareness? 

First, there is the ongoing debate over tattoos. Although the specifics are under some dispute, there has been much discussion of the U.S. Government using tattoos to try to identify people affiliated with specific organizations, including Tren de Aragua (“TdA”). It was an accusation, with no due process, of affiliation with TdA, that caused the Venezuelan migrants to be sent to El Salvador. See my last post. 

The Government has argued in the past that tattoos can show affiliation with organizations like TdA, although there is some dispute over whether that is true. That suggests the use of this form of expression as evidence, but it also has speech implications if tattoos are expressive. 

The American Civil Liberties Union (“ACLU”), which has taken a lead role in significant litigation, including on this case, has said that tattoos were the primary basis used to identify those sent to El Salvador, with lead counsel on this case saying “[t]he administration is sending individuals to one of the worst prisons in the world, potentially for the rest of their lives, without any due process, even an opportunity for them to show that their tattoos have nothing to do with the gang.” Some of the tattoos claimed to have been used to identify the migrants include “a soccer ball with a crown over it,” and an “eyeball” that the person described as “looking cool” as his reason for getting it. Family members and acquaintances of  Neri Alvarado, sent to El Salvador and pictured above, have said that their relative was targeted because of three tattoos, including an autism awareness tattoo. The image, above, in itself undermines some of the government narrative about the tattooed migrants being so dangerous that they had to be immediately removed from the U.S. 

The Government has denied using tattoos to identify this particular group of migrants, but they have done it in the past to identify those associated with TdA, providing corroboration for the families and lawyers who say they were used in these cases. This is in spite of earlier government reports given to USA Today, which state that this is an unreliable indicator, quoting one Venezuelan police officer in a U.S. Government document as saying a tattoo is “the easiest but least effective way” to identify TdA members. Tattoos are arguably a form of expression, although the specifics of that expression may vary. From a legal perspective, there may be a difference between messaging that shows an affiliation with an organization for the purpose of illegal activity and other forms of messaging. That possibility is acknowledged, but it has not been established in this instance. 

Of course, the main reason there is dispute is the lack of due process behind the flights of migrants sent to nightmare conditions in El Salvador, a situation a federal judge described as “frightening.” That issue continues to evolve before the courts, including a chilling ruling yesterday by the Supreme Court of the United States, vacating the federal court’s temporary restraining orders regarding removals under the Alien Enemy Act. For some commentary on that ruling see this piece by Steve Vladek. 

Against this backdrop, released images of the detainees become important. The image discussed in the next section, of a group of heavily tattooed men in an overcrowded cell, is one of many seen in U.S. media of the men, with their heads shaved, and dressed in a way that shows their often-extensive tattoos. Individual tattoos may have different meanings, even for the same tattoo, but there is also a narrative factor in some people’s false perception of men who are heavily tattooed as inherently dangerous. It may be that these images have been released in an attempt to create an insinuation of criminality just from the fact that these men have tattoos, an image amplified after their heads were shaved in the prison in El Salvador. President Bukele of El Salvador released a video, arguably advancing this message, which was shared on X by U.S. Secretary of State Marco Rubio. I hesitated to share the video, which includes graphic depictions of the men being transported and having their heads shaved, and I urge caution to those who may view it. Its release by El Salvador, and amplification by an official in the U.S. Government, though, implicitly conveys this notion of criminality relating to the men detained. For those aware of the lack of due process involved in their being sent there, those images may have a different impact as being deeply disturbing. 

El Salvador has used such a tactic before in releasing images of men with tattoos and shaved heads from its notorious prison. Compare the image in the next section, below, with the one used above of Neri Alvarado, with his younger brother and focusing on an Autism Awareness tattoo. That image has a very different narrative effect and advances a narrative that is far from one of criminality. The image suggesting that Alvarado could have been sent there based on an Autism Awareness tattoo conveys a much more innocent image, countering the governmental insinuation of guilt in its use of images. 

The Second Image: U.S. Department of Homeland Security Secretary Kristi Noem Uses the Venezuelan Migrants as a Video Backdrop to Issue a Threat 

The second image was released within this larger context of images of the detainees. This second image was posted by Kristi Noem, the U.S. Secretary of the Department of Homeland Security, who included a video with a message to migrants. Standing before a clearly overcrowded cell of prisoners in the notorious Centro de Confinamiento del Terrorismo, (“CECOT”), she used them as a backdrop for a political message. I post it down below, with a warning to readers that it is disturbing. 

Noem used the migrants to send a threat to other migrants as to what could happen to them if they do not voluntarily leave the U.S., with another of the constant, vague references to crimes that have filled Government rhetoric. While she said the image was intended to intimidate migrants in the U.S., it was likely also intended, as described above, to convey a larger image of criminality about the men held there. 

Noem’s post caused a justifiable backlash. She stood in front of the prisoners, not acknowledging them other than to tell migrants in the U.S. that the same could happen to them. The prisoners were in an obviously overcrowded cell, some not fully dressed, and this action has been decried as a “sick stunt.” Some have pointed out the juxtaposition between the overcrowded cell behind her and her wearing a very expensive Rolex watch, and others have suggested that her video violates the Geneva Conventions, which address the treatment of prisoners of war – in spite of the lack of a war, other than the U.S. Government’s convoluted claim of such under its invocation of the Alien Enemies Act. See my last post for a critique of the Government’s wartime language in this context. 

In the video, Noem never acknowledges the prisoners, giving the impression that she does not see herself as standing in front of human beings. That, combined with the obviously horrific conditions in which the men are being held, is shocking at best. It may well have the intimidating intent she sought to have, and it may also falsely convince some of criminality. I found it to be dehumanizing and chilling, not because of the substance of her threat, but because the lack of any apparent humanity on her part in the entire scene. It seems obvious that the men, already imprisoned under terrible circumstances, could hear her statements, portraying them as an example to use in a threat to others, which also seems to add another layer of cruelty in an already cruel ordeal. 

This is Noem’s post on Twitter/X: 

The intent of the image was to intimidate migrants. The effect may have been quite different, in vividly demonstrating a callous indifference to human rights on the part of the U.S. Government, especially since the U.S. perpetrated the abuse. It may have backfired in another way, as giving a face to the detainees may actually humanize them. Seeing the men the U.S. sent there being held in such atrocious conditions, especially in light of Noem standing in front of them, back turned, displaying a cold indifference to their plight, and even bragging that the U.S. did this, may well have the effect of eliciting sympathy for the detainees. One human-rights advocate described Noem’s post as “a typical gross and cruel display of political theater that we have come to expect from the Trump administration.” 

The Third Image: Rumeysa Ozturk, an International Student in the U.S. on a Valid Student Visa, Is Grabbed Off the Street 

The third image, also accompanied by a widely circulated video, is of the “arrest” of Rumeysa Ozturk, an international student from Turkey, who is pursuing a PhD at Tufts University in Somerville, Massachusetts. I use quotes around the word “arrest,” because the manner in which she was grabbed by apparent ICE agents does not look like an arrest so much as a kidnapping. 

In her post, discussed above, Noem referred to “criminal illegal aliens,” one of the many terms that have been used to try to justify U.S. Government actions against migrants. Much of the rhetoric has focused on criminal activity, such as the public claims of gang affiliation involving the 238 Venezuelan nationals. Behind those claims has been another narrative assertion of criminality, with the suggestion that the U.S. was targeting “illegal” migrants. That insinuation is not supported by the law and does not justify what the U.S. did to the Venezuelan men, but it does serve as a political point that has persuaded certain members of the public that U.S. actions are justified because of an aura of criminality surrounding these men.  

It is thus notable that Ozturk is in the U.S. as a Fulbright Scholar, on a valid visa to pursue her doctoral studies at Tufts. The U.S. Government, apparently incensed over an op-ed she co-wrote in her school newspaper regarding Tufts’ handling of student protests over events in Gaza, may have used that op-ed as a basis to revoke her visa. According to Tufts University, which issued an unusual statement in support of Ozturk, and demanded her immediate release, Ozturk was not particularly active in social issues on campus, and she had done nothing that the University thought would warrant her arrest. It is notable that the op-ed Ozturk co-wrote was critical of Tufts, and that Tufts spoke out in her support, saying the op-ed should not have been used as a basis to revoke her visa. As with the cases discussed above, there are conflicting narratives as to the basis for Ozturk’s arrest, although it is apparent even from Government statements that speech is a significant underlying factor.  

Beyond that dispute, there is a chilling effect in the manner of her arrest, conveyed via the video and images from that incident. It is not clear whether the U.S. Government expected, or wanted, a video to exist of the moment Ozturk was grabbed, as some reports suggest it was a surveillance video. What is clear is that an element of intimidation is seen in the circumstances of the actual arrest. 

The video shows Ozturk leaving her apartment, as she was apparently going to an event to break her fast during Ramadan. She is suddenly approached by several people, including several men, all dressed in black with their heads and faces covered. One steps right up in front of her, as she tries to step around him. While standing over her, physically close to her and obviously bigger than she is, the man suddenly grabs her as others surround her. Ozturk screams, and, at one point during the exchange, asks if she can call the police before one of them tells her they are the police. 

Any woman who has ever been in a public place will recognize Ozturk’s reaction as the natural safety-related fear of a woman suddenly accosted by multiple people dressed in black, faces covered, especially when one of them physically grabbed her. That they did not identify themselves as law enforcement, did not show badges, and were not dressed as law enforcement, would enhance that fear reaction. While there will continue to be disputes over the underlying reasons for her arrest, the intimidation in this scenario is unmistakable, certainly directed towards Ozturk, but arguably directed beyond her if the video was intended to be seen by others after being captured on a surveillance camera. That she asked to call the police shows that it was not immediately clear to her that the people who surrounded and grabbed her were ICE agents. 

Another aspect of this video and the image above has an intimidating effect. Ozturk was arrested in Massachusetts, in an area known as quite politically “liberal.” Massachusetts is a state that voted Blue in the last Presidential election. Various actions of the U.S. Government have appeared designed to intimidate others, beyond those who are the targets of the immediate actions. This high-profile, intimidating arrest on the streets of traditionally liberal Massachusetts in broad daylight will no doubt have the effect, and may have had the intent, of conveying to targets that nowhere is safe. That is especially so if, indeed, the sole basis for her arrest was the co-authoring of an op-ed. The spreading of such fear, especially when it is explicitly connected to speech based on content, will obviously have a chilling effect on speech. 

Governor Maura Healey of Massachusetts expressed outrage over Ozturk’s arrest, demanding information and saying “[w]e know nothing about the circumstances here. It appears that she's been targeted not because of crimes she committed, because she hadn't committed any crime. But she's been targeted because of what is free speech, and something that she signed on to in a student newspaper.” U.S. Secretary of State Marco Rubio seemed to confirm that was the reason, saying there were many more students whose visas were or would be revoked. “It might be more than 300 at this point. We do it every day. Every time I find one of these lunatics, I take away their visa.” He implied it was not only because of the op-ed, saying it was a problem of association with people who were “creating a ruckus,” but he did not say that she, herself, was accused of doing that. Specifically, he said: 

 

“If you apply for a visa to enter the United States and be a student, and you tell us the reason you are coming to the United States is not just because you want to write op-eds, but because you want to participate in movements that are involved in doing things like vandalizing universities, harassing students, taking over buildings, creating a ruckus -- we're not going to give you a visa …” 

 

It is clear that the U.S. Government has targeted noncitizens based on their speech on this issue, and that it has not limited that targeting to illegal activity or to people in the U.S. illegally. Such content-based restrictions will undoubtedly be disputed before the courts. No criminal charges have been filed against Ozturk, casting doubt on Rubio’s insinuations about her activities. After her arrest, she was quickly moved around before being moved to detention in Louisiana. A judge, not knowing her location, had ordered her to be held in Massachusetts after her arrest. The Government argued that she had already been sent to Louisiana by the time the order was issued, claiming there were no beds in Massachusetts. That claim has been disputed. Her lawyers have filed a habeas corpus petition, and a hearing was being held as of the writing of this post. The Government argued that because Ozturk was quickly moved out of Massachusetts to Louisiana, the local court does not have jurisdiction to hear her petition. The court held that the matter should be kept in Vermont, in New England, not moved to Louisiana as the Government had requested, and it barred the Government from sending her outside of the country. 

Ozturk is studying Child Study and Human Development at Tufts. Her lawyer read a statement from her outside of her habeas hearing, where protests had erupted in her support. The statement seems to suggest that Ozturk herself believes she was detained because of her op-ed: 

 

“I am a Ph.D. student working with children and youth. We know that injustice in the world and systemic brutality towards people of color has long-lasting negative effects on children, youth, and other communities. My life is committed to choosing peaceful and inclusive ways to meet the needs of children. I believe the world is a more beautiful and peaceful place when we listen to each other and allow different perspectives to be in the room. Writing is one of the most peaceful ways of addressing systemic inequality. Efforts to target me because of my op-ed in the Tufts Daily calling for the equal dignity and humanity of all people will not deter me from my commitment to advocate for the rights of youth and children.” 

Three Images, One Overarching Message: Certain Speech Can Make You a Target, Especially for Noncitizens (For Now), and, If You Are a Migrant, Be Afraid 

There are numerous legal and factual issues that can be discussed and will develop regarding all of the matters addressed in this post. It was just striking, though, as these things happened in quick succession, that widely circulated images were having such a powerful narrative impact, both in terms of Government messages of intimidation and in terms of counter-narratives of Government oppression.  

While these scenarios have factual differences, a common theme that emerges from these images is that speech can cause a person to be targeted in an immigration context, arguably regardless of whether that speech constitutes any illegal activity. The targets have evolved, beginning with people accused of being in the U.S. illegally, but never proven to be, and moving on to the arrest of students like Ozturk, who was in the U.S. legally, but who apparently wrote an op-ed the Government did not like. A theme of Government intimidation is also laced through all of the images, and that intimidation was made explicit in Noem’s post. All three images have supported counter-narratives that the Government is oppressing people based on immigration status and on disfavored speech, whether that speech emerges via tattoos, op-eds, or in other forms. 

The immigration system was not designed as a tool for the suppression of speech. Taken in conjunction with the speech-based initiatives in other contexts, mentioned above, it is certain that there will be a chilling effect on speech, obviously among noncitizens, but also beyond. Perhaps, however, such images will also bolster opposition to some of these problematic Government actions. Time will tell.