In the weeks following Hamas' attacks in Israel and Israel's military response in Gaza, college students have launched protests on campuses across the United States. Some efforts, like the student group letter at Harvard University that held Israel "entirely responsible" for Hamas' siege, have drawn a huge backlash. Harvard has seen major donors withdrawing their financial support and executive board members stepping down over the protests.
Three Republican presidential candidates have not only expressed their opposition to the protests but have also voiced their desire to see certain protesters punished.
"As president, if you're on a student visa and you're a foreigner and you're out there celebrating terrorism, I'm canceling your visa and I'm sending you home," said Ron DeSantis at a campaign event last week. "We will revoke the student visas of radical anti-American and antisemitic foreigners at our colleges and universities," promised former President Donald Trump. "We will send them straight back home." Sen. Tim Scott (R–S.C.), likewise, said that "foreign national students on visas who are protesting against our ally Israel should be sent back to their country." (The DeSantis, Trump, and Scott campaigns did not respond to Reason's requests for comment by press time.)
The call isn't just limited to the 2024 GOP presidential candidates. Nineteen Republican House members have urged Biden administration officials to deport "foreign students who are in the U.S. on temporary visas and have expressed support for Hamas," according to Fox News. "They note that students on student visas can be disqualified under the Immigration and Nationality Act from being eligible for a visa if they endorse or espouse terror activity."
Hamas has committed grave atrocities against Israelis, and some stateside anti-Israel protesters have voiced truly objectionable and troubling views at demonstrations. But these protesters are still entitled to their First Amendment rights, and the candidates' proposal raises serious concerns about free speech and noncitizen civil liberties.
"If we want to protect free speech, we have to protect both the speech and the speaker," says Michael Kagan, a law professor at the University of Nevada, Las Vegas (UNLV) and director of the UNLV Immigration Clinic. "The problem for immigrants is that we do protect the speech, but we leave the speaker vulnerable."
Kagan, an expert on the intersection of immigration law and free speech, notes that certain immigrants may be punished for their speech. Reno v. AADC (1999) "basically found that it would be extremely difficult for an immigrant to raise a selective prosecution defense against deportation," he notes. "Undocumented immigrants are always vulnerable to being deported, but the key question is, will they be targeted by the government for deportation?" Selective prosecution could defend them if they can show that the government is trying to deport them only on the grounds of their political speech, but Reno "makes that a very difficult defense to raise."
The Supreme Court "has at least twice said that the First Amendment applies to non-citizens in the country," Kagan wrote in a 2015 article for the California Law Review, but "no Supreme Court case has squarely reached the question of whether free speech rights apply to immigrants that entered unlawfully." The situation might not be clear-cut for foreign student protesters either. Kagan argues that foreign students who are here legally may still be vulnerable on the grounds of their speech: They often need their visas to be renewed, which means "there's a lot more discretion involved in when [their visas] could be canceled."
The GOP candidates haven't narrowly defined who they favor sending home. They haven't specified who, exactly, qualifies as people who are "celebrating terrorism" or are "radical anti-American and antisemitic foreigners," the people DeSantis and Trump singled out last week. Scott favors booting an ostensibly broader category—student visa holders who are "protesting against our ally Israel." This would seem to include more than just the extreme end of anti-Israel protesters and more than the people explicitly calling for violence. It would be deeply problematic for a U.S. president to have the power to kick out foreigners on such subjective grounds—a power that Republicans would no doubt oppose if wielded by Democrats.
What's more, "the Supreme Court has set forth very narrow exceptions to the First Amendment," says Joe Cohn, legislative and policy director at the Foundation for Individual Rights and Expression. "For example, incitement to commit imminent acts of violence has been defined in Brandenburg v. Ohio and more recently refined in Counterman this last term. Simply expressing approval of violence is not the same as incitement."*
"People who are here lawfully, regardless of whether or not they are citizens, are here on student visas, or have permanent residence—they all enjoy the same First Amendment rights," Cohn continues. "It's good that elected officials and candidates for office are actively thinking about how to protect…students from antisemitism, but they have to use strategies that are constitutional to accomplish that important goal. Unfortunately, these proposals would not survive First Amendment scrutiny."
This isn't the only way candidates have proposed targeting immigrants and other noncitizens on ideological grounds. If elected, Trump says he would "implement strong ideological screening for all immigrants" and "aggressively deport resident aliens with jihadist sympathies." He also says that foreigners who don't believe in Israel's right to exist wouldn't be allowed to enter the country.
There are obvious civil liberties problems with the candidates' call to revoke the visas of foreign student protesters—but they're doubly disappointing since they illustrate an unwillingness to encounter contentious ideas. "The statements I've seen from these candidates are not talking about someone who's actually giving material support to terrorists, they're just expressing an opinion that they disagree with," says Kagan.
"The usual American response to that is supposed to be, 'Then explain why you disagree,'" he continues. "To throw them out of the country is essentially to repress and silence people and to send the message to others, 'Don't speak. Don't raise your voice.'"
*CORRECTION: Joe Cohn's quote has been corrected to reflect his reference to Counterman v. Colorado.
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