The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Israel's recent decision to bar US Representatives Ilhan Omar and Rashida Tlaib from entering the country, because of their support for the anti-Israel BDS movement, has attracted widespread controversy. Critics argue that the Israeli decision is both unwise and unjust. The critics are right. But, lost in much of the discussion, is the fact that entry restrictions based on political speech are far from unusual. Israel's policy is just one example of a much larger problem. If the Israeli action is unusual, it is mainly because of the high profile of Omar and Tlaib, and President Trump's norm-breaking decision to pressure a foreign government to bar entry to two prominent citizens of his own country.
The United States itself has a long history of barring entry to foreigners with views the federal government considers unusually odious, such as communists. Many European nations deny entry to far-right racists, such as the American white nationalist Richard Spencer. Few of those who condemn Israel's decision or the long-time US policy of excluding communists also condemn entry restrictions that bar far-right nationalists—and vice versa.
But the truth is that all these policies do deserve condemnation, and virtually all should be repealed. And we should be willing to oppose them even when the people whose rights are restricted really do have odious views. I am no fan of Omar and Tlaib. The former has made anti-Semitic statements, and the BDS movement both advocate is itself heavily tainted by anti-Semitism, as shown by its use of classic anti-Semitic rhetoric – recently described by members of the German parliament as reminiscent of Nazi propaganda—and its targeting of Israel for sanctions, while ignoring the many nations with far worse human rights records. Communists and white nationalists are even more odious, in so far as many openly advocate policies that predictably lead to mass murder. Nonetheless their freedom of movement should not be restricted based on their views.
Freedom of speech is a fundamental human right. It necessarily includes the right to advocate extreme, awful, and unjust ideas, as well as good and "mainstream" ones. One can argue that travel restrictions do not really undermine freedom of speech because they don't ban the speech itself, but only restrict those who express certain ideas from entering particular areas. But the same defense can be offered for any regulation that does not directly restrict speech, but "merely" bars advocates of certain views from engaging in other activities. A law that forbids critics of President Trump from driving cars or flying on planes is clearly an attack on freedom of speech, even though it does not regulate speech directly. The same goes for speech-based travel restrictions.
Another problem with speech restrictions is that it is extremely difficult to keep them limited. One reason why we need constitutional protections for free speech, is that government cannot be trusted to restrict only the genuinely awful speech, while leaving the rest alone. To the contrary, censors have strong incentives to target critics of the government more generally and also any expression that is widely unpopular, regardless of its true merits.
This danger applies to speech-based restrictions on international travel as well as to more conventional "internal" censorship. In the US, nineteenth and early twentieth century efforts to bar immigrants based on views that were supposedly inimical to American republican institutions were closely linked to racial, ethnic, and religious bigotry against Asian, Catholic, Eastern European, and Jewish immigrants. In the 1930s, concerns about their possible radical left-wing political views were one of the reasons cited for barring Jewish refugees from Nazi Germany.
Just last year, in the travel ban case, the US Supreme Court cited earlier decisions upholding laws barring entry to foreign communists as in order to uphold Donald Trump's policy of barring entry to citizens of several Muslim-majority nations—a policy clearly motivated by religious bigotry. For reasons explained in an amicus brief I coauthored in the travel ban case, I believe the earlier precedents were distinguishable, and did not actually require a decision in favor of the travel ban. But it is in the nature of dangerous precedents that their reach is often difficult to confine. The entire history of speech restrictions reinforces that lesson.
In my view, freedom of movement is an important human right, even when restrictions on it are unrelated to speech. There should be a strong (though not absolute) presumption against restrictions. But even those who don't place high value on freedom of movement, as such, should be troubled by the use of movement restrictions based on political views.
Some argue that governments have the right to restrict entry based on speech for much the same reasons as private homeowners have the right to exclude advocates of ideas they dislike from their property. I criticize this "house" analogy in detail here. For present purposes, I would emphasize that the house analogy would justify barring entry based on holding any views that the government happens to dislike, not just those that are especially odious. If a government wants to bar all conservatives from entering, all advocates of democracy, or all Zionists, the house analogy suggests they have every right to do so.
Can speech-based entry restrictions ever be justified? Perhaps in some extreme cases. I doubt that any right should ever be absolute. It is possible to imagine extreme circumstances where a speech-based restriction on entry is the only way to prevent some great harm, for example the takeover of the government by some oppressive political movement. For example, the Russian Provisional Government likely should have barred Lenin from reentering the country in 1917. Similar dangers can potentially justify more conventional "domestic" speech restrictions. For example, the Weimar Republic would have been justified in banning the Nazi Party, if that were the only way to keep them from coming to power.
But such situations are rare, and a well-designed constitutional system should at least require the government to provide strong evidence that such a grave threat really does exist, and speech restrictions are the only feasible way to deal with it. At any rate, Omar and Tlaib do not pose any such threat to Israel. The same goes for the overwhelming majority of other people whom the US, European states, and other governments have denied entry to because of their political views.
Obviously, restrictions on movement can also be justified in situations where the person in question plans to engage in terrorism, violence, or other comparable crime. But such constraints can be applied regardless of the individual's political views, and regardless of whether the movement in question is international or domestic. If, for example, US authorities had realized in advance that the perpetrator of the recent El Paso mass shooting was traveling to that city from Dallas for purposes of committing a horrible atrocity, they would have had every reason to stop him.
UPDATE: Since I put up this post, the Israeli government offered to let Rashida Tlaib enter for the "humanitarian" purpose of visiting her elderly grandmother, who lives on the West Bank, but only on condition that she give a written pledge that she will not "promote boycotts against Israel," while there. Tlaib, in turn, has refused these "oppressive" conditions, though she previously indicated she would "respect any restrictions and not promote boycotts against Israel during my visit." For a more detailed account of this episode, see here.
Allowing a person to enter on condition that they not express certain political views while in Israel is less objectionable than barring people with those views entirely. But it is still a restriction on both freedom of movement and freedom of speech, and still unjust except in the sorts of extreme circumstances described above.
The Israeli government's willingness to let Tlaib enter so long as she refrains from expressing pro-boycott views also makes it even more clear that her speech is in fact the reason she was barred in the first place, not any kind of security risk. If the latter were the problem, presumably her keeping quiet about boycotts would not be enough to persuade them to admit her.
That conjecture is also supported by the fact that the Israelis initially decided to let her and Rep. Omar enter without speech-related conditions, but then changed their minds after Trump pressured the Israeli government to bar them. Again, if the Israeli government thought the two congresswomen posed a security threat, it's unlikely they would have ever decided to let them enter in the first place.