Trump Administration Sued for Violating Foreign Students' Free Speech Rights
The First Amendment protects everybody from the government, whether citizen or not.
U.S. Secretary of State Marco Rubio boasts of revoking the visas of foreign students for engaging in protests and voicing their opinions. It's easy to sympathize with his sentiments about the often hateful and pro-terrorist beliefs of some of these students. But offending government officials—even when it involves saying awful things—is a time-honored practice in the United States, and the government is forbidden to punish anybody for speech alone. As a result, the Trump administration is rightfully being sued for violating the First Amendment rights of foreign students in the U.S.
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Detained for an Op-Ed
In March, asked by a Reuters reporter about the arrest of "a Turkish student in Boston" who "wrote an opinion piece about the Gaza war," Rubio replied, "We revoked her visa…. If you apply for a visa to enter the United States and be a student and you tell us that the reason why you're 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."
The student in question was Rumeysa Ozturk, a grad student in Tuft University's Child Study and Human Development program. She co-wrote what on campuses these days is a depressingly boilerplate opinion piece for The Tufts Daily demanding the university "acknowledge the Palestinian genocide" and "divest from companies with direct or indirect ties to Israel." Unlike some of the other students who have had their visas yanked after being accused of activities that crossed the line into trespassing, vandalism, and other crimes, that appears to be the extent of her activism. It got her handcuffed and detained by Immigration and Customs Enforcement (ICE).
At a federal judge's order, Ozturk was freed from incarceration after 45 days and promptly wrote for Vanity Fair about her unpleasant experience in a grim Louisiana detention center. But she did more; she found allies at the Foundation for Individual Rights and Expression (FIRE) who are suing the federal government over her case and that of other students who have been targeted by the administration for their constitutionally protected speech.
Lawsuit Challenges Multiple Deportation Actions
"In the United States of America, no one should fear a midnight knock on the door for voicing the wrong opinion," comments FIRE attorney Conor Fitzpatrick. "Free speech isn't a privilege the government hands out. Under our Constitution it is the inalienable right of every man, woman, and child."
The complaint points out that "a DHS spokesperson justified the revocation by asserting Öztürk's editorial '[g]lorif[ied] and support[ed] terrorists.'" Other government officials have been equally blunt in conceding that students have been targeted for what they say. In an interview with NPR, Deputy Homeland Security Secretary Troy Edgar said Mahmoud Khalil was detained for "promoting this antisemitism activity," "agitating and supporting Hamas," and "basically pro-Palestinian activity."
Like others who have been detained, Khalil may have done more, but a White House official told The Free Press that "the allegation here is not that he was breaking the law." That is, it's the opinions that those who have been targeted voice that concern the administration.
The First Amendment Protects Everybody
And here's the thing: The First Amendment to the Constitution prohibits the government from punishing people for their speech except in very limited circumstances. Some people claim the Bill of Rights applies only to citizens, but that's not the case in its wording or its philosophical foundations.
In 2014, then-Supreme Court Justices Antonin Scalia and Ruth Bader Ginsburg appeared together for an interview on C-SPAN.
"To whom does the First Amendment apply," interviewer Marvin Kalb asked them as he presented questions from the audience. "Do undocumented immigrants have the five freedoms" of religion, speech, press, assembly, and petition?
"Oh, I think so," Scalia replied. "I think anybody who is present in the United States has protections under the United States Constitution."
"When we get to the Fourteenth Amendment it doesn't speak of citizens," Ginsburg added. "Some constitutions grant rights to 'citizens,' but our constitution says 'persons.' And the person is every person who is here, documented or undocumented."
Scalia, it should be noted, was a prominent conservative jurist after whom George Mason University's law school is now named. Ginsburg held equivalent status among liberals. Both agreed that the U.S. Constitution protects the rights of even undocumented aliens; they would certainly agree, as courts have held, that the First Amendment applies to the speech of foreigners who are here legally.
The First Amendment states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." It doesn't grant any rights at all. Instead, like other constitutional protections, it restrains government from violating what the Declaration of Independence describes as natural "unalienable rights."
In its complaint, FIRE emphasizes this point, arguing that "America's founding principle, core to who and what we are as a Nation, is that liberty comes not from the benevolent hand of a king, but is an inherent right of every man, woman, and child." But, the complaint adds, "Secretary of State Marco Rubio and the Trump administration are trying to turn the inalienable human right of free speech into a privilege contingent upon the whims of a federal bureaucrat."
Deportations Have a Chilling Effect
Even foreign students who haven't been arrested suffer when government officials treat liberty as a privilege that they can revoke at will. Among the plaintiffs is The Stanford Daily, for whom foreign students have become hesitant to write on controversial topics—or at all.
"There's real fear on campus and it reaches into the newsroom," Greta Reich, editor in chief of The Stanford Daily, commented in a statement. "I've had reporters turn down assignments, request the removal of some of their articles, and even quit the paper because they fear deportation for being associated with speaking on political topics, even in a journalistic capacity."
Again, the issue isn't whether what these foreign students say is good or bad—much of it is obnoxious—but that they have a right to say it without fear of punishment. Free speech protection is for everybody.
