The Volokh Conspiracy
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Cato/FIRE Amicus Brief Against Speech-Based Deportations of Foreign Students
The brief gives a good explanation of why such actions violate the First Amendment.
My colleagues at the Cato Institute have, together with FIRE and other groups, filed an amicus brief in the case of Ozturk v. Trump, explaining why speech-based deportations of foreign students violate the First Amendment. As the brief explains, Ozturk is a Tufts graduate student detained for an anti-Israel op ed in a campus paper that, however flawed, does not endorse Hamas terrorism, or indeed even mention it.
Thomas Berry of Cato and FIRE attorney Conor Fitzpatrick have a helpful summary of the brief:
Rumeysa Ozturk is a graduate student at Tufts University. Ozturk is a Turkish citizen who was living in the United States on a student visa. On March 25, Ozturk was approached and surrounded by six plainclothes officers, stripped of her cellphone and backpack, handcuffed, and taken into custody in an unmarked vehicle. Unbeknownst to her, the United States had revoked her visa just days earlier. Ozturk was transferred to Vermont and then Louisiana, where she remains in custody.
A provision of federal immigration law grants the secretary of state the authority to deport an alien if the secretary "has reasonable ground to believe" that the alien's "presence or activities in the United States … would have potentially serious adverse foreign policy consequences for the United States." The government cited this provision in revoking Ozturk's visa, without specifying why it believed her presence would have adverse foreign policy consequences.
Evidence indicates that Ozturk's visa was revoked solely on the basis of an op-ed she co-authored for a student newspaper. That op-ed criticized the Tufts University administration for dismissing certain student government resolutions. The op-ed argued that these resolutions would have held "Israel accountable for clear violations of international law" in Palestine.
Ozturk has petitioned a federal court to order her released, and Cato has joined a broad coalition of groups, led by FIRE, to file an amicus brief supporting that petition. In our brief, we explain that noncitizens residing in the United States have the same First Amendment rights as citizens. The Supreme Court said as much in Bridges v. Wixon (1945), where the Court remarked that "freedom of speech and of press is accorded aliens residing in this country." And the Supreme Court also affirmed this principle in Bridges v. California (1941), a case in which the Court invalidated the criminal convictions of several people, including a non-citizen, because those convictions violated the First Amendment.
As our brief further explains, Ozturk's op-ed was protected speech. The government has not alleged that Ozturk was providing material support to terrorists, nor has it alleged that her op-ed fell into any other exception to the First Amendment (such as insurrectionary speech). If a citizen were punished for the same op-ed, such punishment would be a blatant First Amendment violation. Ms. Ozturk's punishment is no different.
Finally, our brief emphasizes that Ozturk's detention is irreconcilable with the Supreme Court's admonition that colleges and their "surrounding environs" are "peculiarly the 'marketplace of ideas.'" There are more than a million international students studying at America's universities. None of them will feel safe criticizing the American government —in class, scholarship, or on their own time—if a current or future secretary of state may, at his unreviewable discretion, arrest and detain them based on their spoken or written advocacy.
As Justice Frank Murphy wrote in a concurrence in the Wixon case, the freedom of foreign nationals lawfully residing in the United States is "not dependent upon their conformity to the popular notions of the moment," because the First Amendment "belongs to them as well as to all citizens." Ozturk's detention and the revocation of her visa violate the First Amendment, and the courts should order her released.
I agree with all the above, and am glad to see Cato joined this brief! If I have a reservation, it's that the brief seemingly concedes the constitutionality of at least some speech-based denials of the right to enter the US, but argues that full First Amendment protection applies to foreign students and others once in the US. In my view, speech-based entry restrictions are also unconstitutional. But the courts need not resolve that issue in this case.
In previous posts, I have explained why speech-based deportations are unconstitutional - there is no immigration exception to the First Amendment or most other constitutional rights - and urged universities to file lawsuits challenging Trump's speech-based deportation policy. I am glad to see that many schools (including my undergraduate alma mater Amherst College) filed an amicus brief supporting a lawsuit brought against the policy by the American Association of University Professors. But schools should do more.
Courts are beginning to rule against speech-based deportations, including in yesterday's federal district court decision freeing Palestinian immigrant student Mohsen Mahdawi from detention. U.S. District Judge Geoffrey Crawford wrote that "Noncitizen residents like Mr. Mahdawi enjoy First Amendment rights in this country to the same extent as United States Citizens. If the Government detained Mr. Mahdawi as punishment for his speech, that purpose is not legitimate, regardless of any alleged First Amendment violation. Immigration detention cannot be motivated by a punitive purpose. Nor can it be motivated by the desire to deter others from speaking." See also this recent preliminary ruling in the AAUP case.
People sometimes ask me whether I would still oppose speech-based deportations of people whose views I find highly objectionable. The answer is that I'm already doing that. As I have previously noted, I have little sympathy for recent anti-Israel campus protests, and for the views of many of the students targeted for deportation by Trump. But, as always, free speech rights are not limited to people whose views are inoffensive. Freedom of speech must include "freedom for the thought that we hate." That holds true for foreign students and other non-citizens no less than for US citizens.
