The Legality of Deporting Campus Protestors?
A freedom of speech primer
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The Legality of Deporting Campus Protestors?
People without law degrees often are quick to offer up their opinions on whether the Constitution protects what they consider hate speech.
Not coincidentally, people who want the speech to stop claim it isn’t protected, and people who want the speech to continue think it is.
Most get the nuances wrong.
That brings us to a question on many of our minds.
Is the Trump administration’s decision to deport students and others here on visas when they engage in anti-Israel protests on campuses legal or not?
Our right to free speech is broad, but it’s not limitless.
The First Amendment of the U.S. Constitution addresses free speech head-on:
“Congress shall make no law… abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble…”
Courts have interpreted this not just as prohibiting Congress from making laws; the entire government is barred from stopping speech through the police or any other body.
Through the 14th Amendment, the right of free speech extends to states and local governments. They also are barred from stopping protected speech.
To put it bluntly, nobody — from a small county manager in rural Nebraska to a state trooper in Georgia to the president of the U.S. — can legally stop someone from expressing their views, even the most abhorrent ones.
I recall as a young kid the Nazis planning to march in a highly concentrated Jewish neighborhood outside of Chicago. The neighborhood, Skokie, was home to many Holocaust survivors, and the town sought a court ruling to prohibit the Nazis from marching, fearing violence and emotional distress would follow.
Without getting into the numerous layers of Illinois court and U.S. Supreme Court rulings, at the end of the day, the Nazi speech was protected. The group was allowed to march and display its offensive swastikas in the heart of a Jewish neighborhood.
When a college protester yells, “From the river to the sea,” which literally means Palestine should be located in what is all of Israel, and Jews and others are offended, like it or not, it’s protected by the First Amendment.
As is waving a flag of a terror organization, like the KKK or Hamas. Both protected by the First Amendment. No matter how disgusting.
While U.S. law prohibits entry of people from different countries who support designated Foreign Terrorist Organizations, such as Hamas, once they are here legally on a visa, do they have First Amendment Rights as non-Americans?
The U.S. Constitution is silent on this point. But the Supreme Court has previously suggested that the rights afforded by the Constitution apply to not just citizens, but to all “persons” legally here. That would include students studying at U.S. universities on government-approved visas.
Open and shut case, then, on whether Trump can deport these student protesters?
He can’t, right?
Not so fast.
The government regularly revokes student visas for rules infractions such as something as minor as working more than 20 hours a week or working off campus — things the government could never prohibit U.S. students from doing.
That doesn’t make it ethical, but legally, foreign students who exercise rights Americans do still may be kicked out.
Still, where’s the line on legal free speech versus when it turns into something not protected?
None of us in the U.S. are allowed to run into a crowded theater and yell, “FIRE.”
That’s not protected.
We aren’t allowed to publish false statements about others. It’s called defamation, and there are gobs of lawsuits on the topic.
Americans also can’t just go to a neighbor’s house and threaten to blow it up.
Here’s a list of things that aren’t protected by the First Amendment:
Speech that encourages imminent violence
Obscene speech
Defamation
Threats against people and property
Words that provoke a physical confrontation or fight
Child pornography
Some speech at private companies
Are campus protesters engaging in these unprotected categories or are they just saying things that deeply offend some of us.
Wearing a Hamas headband. Shouting, “From the river to the sea.” Screaming, “Free Palestine.” Waving Palestinian flags. Waving Hamas flags. Calling for a boycott of Israel.
None of those are prohibited by themselves, no matter how much they anger some people, no matter how bad they make people feel, and no matter how much they don’t help the cause they purport to support.
Side note. A Palestinian flag (not a Hamas flag) shouldn’t offend anyone. The call to “Free Palestine” by itself shouldn’t be controversial.
As much it’s the antithesis of peace and love or even helping Palestinians, students who only shout hatred about Israel, rather than advocating for a two-state solution or holding peace signs, are engaging in protected speech.
They’re allowed to say they support war with Israel, but they just want a different victor.
But when so-called protesters shout threats at Jewish students. Harass students. Physically prevent students from attending classes. Create an environment so hostile that Jews would be beaten up if they openly displayed their identity.
That’s not protected, by any stretch.
Unfortunately, many of these protests have crossed that critical line. And not because reasonable people find verbal support for a terror organization offensive.
Over 60% of Jewish college students report feeling less safe on campuses of late, and report the pervasive use of antisemitic, threatening or derogatory language directed at them during the protests.
More than half of Jewish students have had their classes canceled, interrupted, or moved to online Zoom. And many have been blocked from attending classes.
The “protests” have included bomb threats. The occupation of entire buildings that prevented classes from taking place or services from being provided to students.
Jewish students at Columbia faced horrific, hostile environments and were even physically threatened in multiple instances. Many Jews were forced to stop participating in school activities.
Let’s not sugarcoat it. The environments on some of our college campuses are not healthy or okay.
Our colleges and universities must do a better job of balancing the constitutional right to free speech with the need to maintain safe and inclusive environments. Many failed in that regard.
Our institutions must strongly clamp down on activity that rises to threats and harassment. That goes beyond just speech we don’t like. That type of conduct can never be tolerated. Against anyone.
And at the same time, foreign and American students alike ought not to be prevented from protests that don’t involve threats and harassment.
Whether we deport foreign students on visas should follow this same criteria.
If they’re planning, encouraging or engaging in threats or harassment, we ought to revoke their visas. Plain and simple.
Nobody should get to benefit from our great colleges only to harass and threaten others once they get here. American students would be expelled if they threatened other students.
But if students on visas are simply espousing ideas we don’t like, we should be careful not to shut them down, lest we shatter one of the few things left in the world we still have here in America. Rights that can’t be exercised in most parts of the world, including ironically under Hamas or Palestinian Authority rule.
The right to speak our minds.
I remain confident in the reasoning for our First Amendment as suggested by Justice Oliver Wendall Holmes, Jr.
That in a free and open marketplace of ideas, where bad ideas get the same berth as good ones, the best ones will ultimately win out.
Even if it takes time. Even if it takes a long time.
“The arc of the moral universe is long, but it bends towards justice.” — Rev. Dr. Martin Luther King, Jr.
Very good article trying to delineate between first amendment rights and the rights of a visa holder. While non citizens are afforded first amendment rights, the State Department as the overseer of Visas has wide discretion in the ability to revoke visas and thus deport. Any illegal behavior can be cause to remove. And there are specific terrorist laws that allow for removal even if peaceful( aiding and abetting a terrorist organization like Hamas )
Interestingly enough the headline cases going on right now with alleged deportations are less about the right to deport and more about legal due process in detention and deportation.
Thus the State Department today revoked close to 300 visas of those who took part of pro Hamas protests or were part of violent activity on campuses. Ultimately assuming fair due process ( not adjudication of any first amendment rights), these revocations will stand. And on a practical common sense or moral basis, if you are a guest in this country you shouldn’t have the right to protest against this country or support those organizations that are deemed enemies of the state. No country can or should allow for that without consequences.
Also, expulsions for American citizens who defile campuses. Every last one of those "protestors" who invaded Hamilton Hall last year, wrecking school property, throwing graffiti on the walls, and--most of all--terrifying campus personnel who worked in the building, should have been expelled. Full stop. No other "protest" group could have gotten off with nothing more than a proveribal slap on the wrist for these actions. If your flag is flying on "Jews" and "Israel," out the door and academic history forever tarnished. And, much to everyone's surprise, this action did not "free Palestine." But that was never the intention, now, was it?