My New Paper on "How Speech-Based Immigration Restrictions Threaten Academic Freedom"

It is forthcoming in Academic Freedom in the Era of Trump, (Lee Bollinger and Geoffrey Stone, eds., Oxford University Press).

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I recently posted to SSRN a draft of my new paper on "How Speech-Based Immigration Restrictions Threaten Academic Freedom." It is forthcoming in Lee Bollinger and Geoffrey Stone, eds., Academic Freedom in the Era of Trump (Oxford University Press). I will likely make revisions before publication, and welcome comments, suggestions, and criticisms. Here is the abstract:

Since he returned to office in January 2025, President Donald Trump's administration has engaged in a systematic effort to deport non-citizen university students and academics who express views inimical to those of the US government on a number of issues. Litigation over these attempted deportations has focused on First Amendment free speech issues. But speech-based deportations of students and academic university employees also threaten academic freedom. This chapter explains how and why.

Part I briefly summarizes the Trump Administration's campaign of speech-based deportation of non-citizen students and academics. That campaign focuses primarily on students with anti-Israel and pro-Palestinian views regarding the ongoing war in Gaza. But its logic could just as easily justify targeting a wide range of other viewpoints.

Part II presents an overview of the idea of academic freedom. That principle is related to, but distinct from freedom of speech. In some respects, it is narrower than the latter. But academic freedom does nonetheless require faculty and researchers to be able to consider and express a wide range of viewpoints on the issues they work on, and to be free of sanctions for viewpoints they express outside of the context of their academic work. The same goes for students. Part III explains how speech-based deportations undermine the academic freedom of both non-citizens subject to deportation, and US-citizen scholars and students. The former effect is obvious. The latter is more indirect, but nonetheless large. Speech-based deportations of foreign students and academics chills the speech of their US-citizen colleagues and also deprives the latter of the opportunity for valuable interactions that could enhance their research, teaching, and learning. What is true of speech-based deportations is also true of speech-based exclusions of potential migrants even before they are allowed to set foot in the United States.

Finally, Part IV considers multiple possible rationales for speech-based deportations and exclusions. Ironically, some of these rationales—currently advanced by a right-wing administration—turn out to be similar to traditional left-wing rationales for restrictions on "hate speech." Whether deployed by the right or the left, the rationales are badly flawed. If correct, they cannot logically be limited to suppressing speech by non-citizens. Bigoted or otherwise reprehensible speech by US citizens creates comparable or greater dangers.

Comments

[not guilty]

Haters desperately need someone to hate. With MAGAts, "illegal aliens" -- often meaning brown people no matter their citizen or alien status -- are among the hated groups.

Trashing (nonwhite) foreigners is this century's Jim Crow.

[Lee Moore]

I skipped gaily to Part II to find out what Prof Somin thinks "Academic Freedom" consists of and was happy to discover that he's just making a philosophical or sociological point, not a legal one. 1A may be relevant to academic freedom but only insofar as the activities concerned are already protected by 1A per se, regardless of how they relate to academic freedom.

As to the arguments, I agree that Americans may be intellectually impoverished by being unable to hear the views of foreign academics who are not allowed into the US. Though that does require Prof Somin having to join me in giving the idea that remote learning is as good as in person learning a hearty kick in the teeth.

But mostly what struck me is that what the Trumpies are trying to do is much the same as, if milder than, what the universities themselves have been doing. Specifically, you prevent unwelcome ideas percolating through the universities less by rules restricting speech, but by keeping your campus unpolluted by people who are liable to express unwelcome ideas. Control who gets onto campus and you don't need to worry so much about what people on campus might be saying. This applies obviously to faculty, but also to invited speakers. (Security is so expensive these days, neh ?) But if you have the right people, you don't need to police their speech, for they will say the right things without regulations*.

It is true that the universities have gone further than this basic "personnel is policy" idea, with actual speech codes, camouflaged in mostly jocular fashion as preventing psychological damage to vulnerable students; but in practice this is a "personnel is policy" thing too - he, or these days, she - who enforces the speech code represents the reality of what the speech code really consists of.

* which brings to mind this little verse :

"You cannot hope to bribe or twist,
thank God! the British journalist.
But, seeing what the man will do
unbribed, there's no occasion to"

[M L]

If someone is an outspoken communist activist for example, or say a jihadist, we should not let that person into this country. Just good sense.

If they want to publish their ideas on a blog from overseas and people here want to access and read it over the internet, that's fine I guess. But we don't want them here.

[MollyGodiva]

Problem is that who defines what "hate speech" is? According to Trump not praising a fascist is hate speech, as is trying to stand up for democracy.

[NvEric]

"According to Trump not praising a fascist is hate speech,"
Good, very good lie !

[Brett Bellmore]

Maybe even a big one! 😉

[Brett Bellmore]

"Litigation over these attempted deportations has focused on First Amendment free speech issues. But speech-based deportations of students and academic university employees also threaten academic freedom."

Well, of course litigation has focused on First amendment free speech issues. "Academic freedom" may well be an excellent idea, but it isn't a constitutional mandate, and thus is only a basis for litigation if it has statutory protection.

And, while academic freedom does seem like a good thing in abstract, I'm not sure that actually is enough to justify tolerating vicious antisemitism and advocacy of terrorism among visiting scholars. It's only one value among many, after all.

I say that realizing that some on the left employ the same reasoning to object to visiting scholars who advocate free market capitalism or conventional sexual morality.

It's not that the reasoning is invalid, it's just that they're employing it to bad ends.