AFA Statement on Speech Rights of Foreign Nationals

After several high-profile examples of university students having their authorization to study in the United States revoked and of international scholars being turned away at the border, the Academic Freedom Alliance has released a statement on the deportation of foreign scholars and students. There are clearly circumstances in which foreign nationals can and should be expelled from the country, but the administration's actions have had the effect of dampening lawful but politically disfavored speech on American college campuses and pose a serious threat to the international academic community.

From the statement:

Foreign students and scholars who enter in the United States, temporarily or indefinitely, do so on a conditional basis, and if they violate the conditions of their lawful presence in the country they can properly be removed. It is imperative that the permission of foreign students and scholars to enter or remain in the country be revoked only for the proper reasons, which do not include the mere expression of controversial scholarly, political, or social views. If foreign scholars and students are going to be able to live and work in the United States, to express themselves freely in public and to engage in the ordinary activities of scholarship and teaching, they must be confident that their status will not be put at risk by their engaging, alongside other members of the academic community, in the lawful expression of ideas that those with political power happen to find controversial.

We call on American government officials to clearly state that international students and scholars will not be removed from the country simply for engaging in lawful expressive activities, whether personal or professional. We call upon American government officials to clearly state the factual basis and legal rationale when visas are revoked. A climate of uncertainty is itself a threat to the free exchange of ideas on American university campuses. It is imperative that the government not only refrain from removing individuals from the country for exercising First Amendment liberties but also credibly reassure the scholarly community that the immigration laws will not be used to stifle First Amendment protected speech.

Read the whole thing here.

Comments

[rloquitur]

Don't get arrested occupying a building. Yes, the deportation order against her is tough, but the federal courts should not be stopping it. It's Rubio's call.

[David Nieporent]

Was this meant in reply to some other post?

[MollyGodiva]

Most of those being expelled did not occupy a building or do anything else other then protected speech such as op-eds.

[rloquitur]

But some did. And we don't know all the evidence in each case.

[MollyGodiva]

"But some did. And we don't know all the evidence in each case." Is not a valid argument to use in order to deprive all of them of due process.

[rloquitur]

Well, sez you. But to the larger point--why do you defend people like Mahnoud Khalil. Like it or not, he associated himself with CUAD and lawless mob action. He was handing out Hamas literature. Good riddance to bad trash.

The case of the South Korean woman is a little tougher, but only the optics. Personally, I wouldn't deport her. But Rubio is acting within his rights to do so. The court has no business ordering her to remain free, by the way,

[MollyGodiva]

I defend him because I am a loyal and patriotic American who aims to uphold the Constitution.

Why does a fascist shit as yourself not defend him? Nvm.

[rloquitur]

Because I think that the people get to decide the terms and conditions upon which aliens join our society. Acting on behalf of the American people, Rubio has decided that this activist who plays footsie with CUAD and "negotiates" (read extorts) with Columbia doesn't serve the interests of the American people. So out he goes.

[rloquitur]

And just out of curiosity, where were you when Xavier Becerra was trampling on journalists' rights? Is he a fascist?

[Sarcastr0]

You do nothing but spout right-wing lies in a weak attempt to tu quoque the indefensible.

You're boring.

[MaddogEngineer]

You are under the mistaken impression that "due process" here requires that you personally be knowledgeable about the evidence and its veracity.

I don't know how many times it needs to be said, but I presume many, that immigration due process requirements are not the same as those in criminal proceedings. In many cases the law only requires a decision by the secretary of state, which in other contexts would be arbitrary. But arbitrary is explicitly allowed. No court is authorized to second guess or probe his decisions.

[Sarcastr0]

In many cases the law only requires a decision by the secretary of state, which in other contexts would be arbitrary

1. Due process is constitutional, not statutory. If the process is as you say, there's a good chance the lack of any hearing violates due process.

2. Also constitutional - the First Amendment. We yet have precedential clarity on how it would apply here, but you cannot pretend it's not an issue.

[rloquitur]

And society is powerless to correct mistakes once some guy gets in the country?

[Sarcastr0]

Condolences on your illiteracy.

[Magister]

I wonder who would be responsible for presenting such evidence? Well, since that's too hard a question, just deport them all, the ones who only did protected speech and the ones who did other stuff.

[Noscitur a sociis]

And we don't know all the evidence in each case.

We call upon American government officials to clearly state the factual basis and legal rationale when visas are revoked.

[Michael Ejercito]

The Supreme Court rejected, on the merits, a First Amendment challenge against the deportation of an alien for joining the Communist Party.

[David Nieporent]

Again; because at the time, it also held that joining the Communist Party wasn't protected by the 1A at all, for anyone. That rationale has since been repudiated.

[MaddogEngineer]

Repudiated?

[rloquitur]

By which case??

[David Nieporent]

Yates v. United States, 354 US 298 (1957) and Brandenburg v. Ohio, 395 U.S. 444 (1969). Which narrowed and then rejected Dennis, Whitney, and the rest.

[zztop8970]

Both of these cases allowed punishment of speech directed to incite or produce imminent lawless action. In Khalil's case, not was in intended to incite imminent lawless action, it was made during lawless action and reinforced it. He is clearly deportable under Brandenburg

[Sarcastr0]

Clearly!

Also what the fuck are you talking about? Reinforcing lawless action with speech during a lawless action?

Go at the action then. If it’s so lawless.

[David Nieporent]

Note that the U.S. government has not relied on any claim that Khalil broke the law or incited others to break the law.

[zztop8970]

So? He may be deportable on numerous grounds, including lying on his residency application, inciting violence, or being a detriment to the foreign policy of the United States.

The government doesn't need to specify ALL the reasons, one is enough.

My point was that the cases you relied on are irrelevant here - where the speech had already incited violence

[zztop8970]

The action (violent occupation of a buildng, through menas taht included property destruction) was dealt with- perpetrators were arrested.
The speech that reinforced that lawless action was Khalil encouraging the violent actors and acting as their spokesperson. So while he was not actively participating in the violence himslef (perhaps, that is a question that needs lookign into, but mde moot once he is deported), he is deportable for his speech that incited and produced the action

[John F. Carr]

"We call upon American government officials to clearly state the factual basis and legal rationale when visas are revoked."

That sums up my objections. In most if not all of these cases I don't have enough information to decide who is right on the substantive question: should this person be removed? What else did the foreigners do beyond holding heterodox opinions? I don't trust their supporters to tell me and the government doesn't want to tell me.

[Krayt]

At the daily White House press conference yesterday, the press secretary said soandso, a convictrd criminal, was deported. A journalist asked for evidence of conviction. She responded with a whole bunch of stuff, but no actual evidence.

People are right to be suspicious.

[MaddogEngineer]

I believe scrutiny is always warranted. But I would take the concern trolling far more seriously if the very concerned citizens now had spent even a moment of consideration on the unfairness of how some of the non-violent J6ers were being prosecuted. Tribalism destroys faith in the rule of law. If you want to play the "they deserve it" card, don't be surprised if the favor is returned.

[apedad]

You mean all the due process 4/5/6/(7)/8A rights they had were unfair?!?

And some pleaded guilty and were openly remorseful?

GTFO

Not sure if 7A is applicable.

[David Nieporent]

unfairness of how some of the non-violent J6ers were being prosecuted.

Name even one J6 defendant who was denied due process.

[ah....Clem]

Not very long ago the United States had the most prestigious university system in the world. The best and brightest students and professors from all over the world wanted to come here, so we attracted the cream of the crop.

But no more. It's almost as if someone was deliberately destroying these institutions to make America more weak and isolated. Why would they want to do this and whom does it benefit? Two very interesting questions.

[rloquitur]

Yeah, this is a side benefit of getting rid of Mahmoud Khalil. Does anyone think he's a serious student?

[MaddogEngineer]

That's quite a take. For years now the academy has restricted and black-balled conservative viewpoints. But this...THIS!...will finally be the seeds of its destruction.

Academia's problem has been indulging stuff like this, leading to its rot. If foreign anti-American academics suddenly don't want to come to the United States, I will lose no sleep over that. I never wanted them in the first place.

[Thought about __ all my life]

after 10 years teaching

1) The worst of the worst students go to teacher colleges and then destroy grammar school and high school minds, I regretfully ask if you would want Jill Biden teaching your child
2) PhD system so encourages specializtion that it is now true and seen by students that their teachers know more and more about less and less until the "know everything about nothing"

[rloquitur]

https://www.nationalreview.com/news/university-of-wisconsin-department-chair-flips-college-republicans-table/

[tylertusta]

I'm surprised to see that he was placed on administrative leave and charged with a crime.

Up until last year he would have gotten an award and a promotion while the school covered for him.

[rloquitur]

Since you guys are so into free speech, are you going to call out Xavier Becerra for his threats to journalists? He's now running for California governor. Is that (D)ifferent?

[ReaderY]

I think Harisiades v. Shaugnessey is still good law. The political branches’ power to regulate the entry and deportation of aliens is essentially plenary. Aliens can be deported solely because our government doesn’t happen to like them. Just as aliens can be deported solely because they are citizens of a country we don’t like and not hecause of anything they’ve done, they can be deported because they advocste things our government doesn’t like.

An alien being present in this country is like a citizen being elected or appointed to an office. There is no more a right to the one than there is to the other. The First Amendment permits our government to withdraw hospitality from people whose speech it doesn’t like in the same way it permits the electorate or an appointer to withdraw support from an official whose speech it doesn’t like. An alien’s being chosen to be allowed to enter or remain in this country is no more a matter of right so far as the First Amendment is concerned than a citizen’s being chosen to be allowed to hold or continue in an office.

It’s harsh, but it’s the reality of the status of aliens vis-a-vis our Constitution. Congress can of course choose to be more hospitable and grant aliens more rights by statute, and the President can often exercise discretion in their favor. But neither has to.

[not guilty]

Actually, Harisiades v. Shaughnessy, 342 U.S. 580 (1952), did not deal with the resident alien's speech that was then regarded as being protected by the First Amendment. From the opinion of the Court there:

Harisiades, a Greek national, accompanied his father to the United States in 1916, when thirteen years of age, and has resided here since. He has taken a wife and sired two children, all citizens. He joined the Communist Party in 1925, when it was known as the Workers Party, and served as an organizer, Branch Executive Committeman, secretary of its Greek Bureau, and editor of its paper "Empros." The party discontinued his membership, along with that of other aliens, in 1939, but he has continued association with members. He was familiar with the principles and philosophy of the Communist Party, and says he still believes in them. He disclaims personal belief in use of force and violence, and asserts that the party favored their use only in defense. A warrant for his deportation because of his membership was issued in 1930, but was not served until 1946. The delay was due to inability to locate him because of his use of a number of aliases. After hearings, he was ordered deported on the grounds that, after entry, he had been a member of an organization which advocates overthrow of the Government by force and violence and distributes printed matter so advocating. He sought release by habeas corpus, which was denied by the District Court. The Court of Appeals for the Second Circuit affirmed.

Id., at 581-582 [footnotes omitted]. The circumstances of the other petitioners, Mascitti, a citizen of Italy, and Mrs. Coleman, a native of Russia, were similar. Each petitioner had come to the United States as a teenager, and each held membership in the Communist Party which terminated before enactment of the Alien Registration Act, 1940. Id., at 582-583.

SCOTUS observed, "We have in each case a finding, approved by the court below, that the Communist Party, during the period of the alien's membership, taught and advocated overthrow of the Government of the United States by force and violence. Those findings are not questioned here." Id., at 584. That fact, I would submit, is critical to the Court's rejection of the First Amendment as a defense to deportation -- such speech and advocacy was then regarded as unprotected by the First Amendment. As Justice Robert Jackson wrote for the Court:

The First Amendment is invoked as a barrier against this enactment. The claim is that, in joining an organization advocating overthrow of government by force and violence the alien has merely exercised freedoms of speech, press and assembly which that Amendment guarantees to him.

The assumption is that the First Amendment allows Congress to make no distinction between advocating change in the existing order by lawful elective processes and advocating change by force and violence, that freedom for the one includes freedom for the other, and that, when teaching of violence is denied, so is freedom of speech.

Our Constitution sought to leave no excuse for violent attack on the status quo by providing a legal alternative -- attack by ballot. To arm all men for orderly change, the Constitution put in their hands a right to influence the electorate by press, speech, and assembly. This means freedom to advocate or promote Communism by means of the ballot box, but it does not include the practice or incitement of violence.

Id., at 591-592. At footnotes 18 and 19, the Court cited Dennis v. United States, 341 U.S. 494 (1951), which then was a recent decision.

In Dennis, a plurality of SCOTUS upheld the constitutional validity, as construed and applied there, of §§ 2(a)(1), 2(a)(3) and 3 of the Smith Act, 54 Stat. 671, making it a crime for any person knowingly or willfully to advocate the overthrow or destruction of the Government of the United States by force or violence, to organize or help to organize any group which does so, or to conspire to do so. 341 U.S. at 516-517.

Chief Justice Vinson opined for the four member plurality in Dennis:

Overthrow of the Government by force and violence is certainly a substantial enough interest for the Government to limit speech. Indeed, this is the ultimate value of any society, for if a society cannot protect its very structure from armed internal attack, it must follow that no subordinate value can be protected.

Id., at 509. Justice Jackson, while disagreeing with the plurality's use of the "clear and present danger" test, concurred that "there was power in Congress to enact this statute and that, as applied in this case, it cannot be held unconstitutional[.]" Id., at 577-578. Justice Frankfurter, concurring in judgment, opined "that Congress was not forbidden by the Constitution to pass this enactment and that a prosecution under it may be brought against a conspiracy such as the one before us." Id., at 552.

Harisiades v. Shaugnessey, which did not consider the petitioners' speech and expression that was then First Amendment protected, accordingly is not good law for the proposition that a resident alien can be deported solely on the basis of First Amendment protected speech or expression.

[David Nieporent]

I think Harisiades v. Shaugnessey is still good law.

As I've pointed out repeatedly, no. Or to the extent it is, it's good law only for an irrelevant proposition: that aliens can be expelled for unprotected speech.

[MikeFr]

From a policy point of view, how, exactly, does the US benefit from admitting foreigners who support terrorism or terrorist groups, revolution in the US, or defeat of the US by its enemies?

If we do not benefit by admitting these foreigners why should we do so?

[DaveM]

It's futile to object to an exercise of discretion by the very agent you empowered to have it.