Month: March 2025

Deporting People for Pure Speech is Likely Unconstitutional (even under Holder v. Humanitarian Law Project) and Undermines American Exceptionalism

I am a First Amendment scholar. I protect the right of all to protest in accordance with free speech values. I also have personal and professional reasons to be concerned about some of the protests that have overtaken some university campuses.

Taking over buildings, shouting down classes and speakers, and assaulting staff is not speech. Some of those protest tactics seek to shut down dialog or use coercive, non-expressive methods to make change. Federal laws like Title VI, which prohibits discrimination and harassment that deprives students of their ability to receive their education, should be employed against some of the illegal takeovers of universities.

That said, what I love about this country is our tolerance for a wide variety of views, from enlightened and open-minded to the un-nuanced, ignorant, crass, or hateful views. Our free speech tradition is second to none. We have not always been perfect, but we have upheld the First Amendment rights of the following diverse speakers: Jehovah’s witnesses who didn’t want to salute the flag or put “Live Free or Die” on their license plates, neo-Nazis who wanted to march in a town of recent Holocaust survivors, protesters who want to burn the American flag, professors who don’t want to have to follow the orthodoxy of their institutions or want to place controversial and offensive items on their final exams, Communist professors who do not want to share their lecture notes or associations, nonprofit corporations who want to amass funds to create political documentaries, advertisements by civil rights leaders criticizing the sheriff of Montgomery Alabama, artists who wish do not wish to be compelled to create things that undermine their religious beliefs, students who wear armbands to protest war, a man who put the F word on a jacket to a courthouse to protest the draft, and so many more.

The way that the Trump administration is pursuing the deportations of foreign students flies in the face of this grand tradition. I am profoundly troubled by this administration’s justifications for arresting and pursuing deportation of students on visas and green card holders.

The administration’s interpretation of the Immigration and Nationality Act is that it has full discretion to deport people deemed enemies of the state or those who assist terrorist groups like Hamas. An interpretation of the laws that allows deportations of people purely for expressing political views would likely be a violation of the First Amendment, even if we can originally deny visas to those who advocate for the overthrow of our country or have certain affiliations. As applied to pure speech, the law is vague and viewpoint discriminatory.

There is precedent where national security interests override free speech concerns. For example, in Holder v. Humanitarian Law Project, the Supreme Court upheld a federal statute that prohibited nonprofits from advising designated foreign terrorist organizations, even on how to conduct peaceful diplomacy. In that case, however, the meaning of “training” or “expert advice or assistance” was not considered vague by the Supreme Court. Those facts are in stark contrast to applying immigration law to a wide range of views about Israel and Palestinian rights.

In addition, the Supreme Court recently upheld the forced sale or ban of TikTok, partially on the grounds that the law did not implicate speech because it allowed for a divestiture and partially on the government’s stated national security concerns. The Supreme Court does give a great deal of deference to the government in articulating national security concerns. But this deference can only go so far. There was no notice in the Immigration and Nationality Act that merely writing an opinion piece, for example, would be equated with serving a terrorist organization.

But even if our Constitution would technically allow these deportations, because of the interaction between free speech rights and immigration discretion with national security interests, it is the wrong path to take. If Mahmoud Kahlil is being detained for assisting protesters in taking over a building, charge him with that. If Rumeysa Ozturk has done anything besides write an op ed in a student newspaper, please put forth this evidence. Currently, it appears that the administration is equating pure speech with illegal conduct. This flies in the face of our free speech doctrine and ultimately will erode speech for all of us and embolden illegal protests. If just text is outlawed, then people will also resort to the illegal methods we wish to curtail. Dialog, understanding, and knowledge is what we should be promoting.

In his seminal dissent in Abrams v. United States, Justice Holmes said that the American experiment, and the free speech experiment, was to let all ideas come to the surface for testing.

“But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment.”

Justice Jackson, in his remarkable Barnette opinion, held that “[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

This is the way. This is the way to show patriotism, and it is the best way to support Jewish constituents while honoring the free speech traditions that benefit us all. Arresting people for what appears to be pure, political speech leads only down the totalitarian path. The administration should pursue those who engage in illegal conduct, or seek to deprive the rest of us of our right to express our opinions. But targeting people living and studying in this country purely for the conclusions they have reached is wrong, unjust, un-American, and unwise.

The Conflict between Free Speech Rights and Federal Antidiscrimination Laws in the Gaza Protests

In light of President Trump’s tweet to deny federal funding to universities who fail to stop illegal protests, this blog addresses the lawsuits surrounding universities’ treatment of Gaza protests and discusses how to distinguish legal from illegal protests.

As a scholar of the First Amendment, I rarely encounter free speech issues as difficult as those presented by protests at universities following the October 2023 Hamas attacks on Israel, and Israel’s response in Gaza.  Issues surrounding recovery of the hostages, the civilian deaths and humanitarian issues in Palestine, and even whether Israel has a right to exist have elicited strong reactions from residents of the United States.  Universities have been sued multiple times, by students and organizations on both sides of the issue, for mishandling the student protests.     

As examples, a court issued a preliminary ruling that the University of California, Los Angeles cannot allow protesters to block Jewish students’ access to classes.  A lawsuit against the University of California Berkeley alleges that the university allowed “unchecked spread of antisemitism” and physical violence by failing to police encampments that the plaintiffs believe harassed Jewish students.  Berkeley also permitted student groups to adopt bylaws banning speakers who support Zionism.  There are also lawsuits alleging that pro-Israel speech has been effectively censored, disrupted, and shut down by campus protesters.    

Pro-Palestinian students and organizations have sued colleges over infringements on free speech, including banning vigils based on safety concerns.  A Texas lawsuit focuses on a state executive order that adopted a narrow definition of anti-Semitism.  The order would prevent the groups from criticizing Israel’s actions using certain language, such as comparing the state of Israel’s policies to the Nazi regime.  

  Courts tasked with addressing these lawsuits will also have to contend with the fact that universities’ free speech obligations are complex and often uncertain.  The Supreme Court hasn’t fully fleshed out the free speech rights of students on public college campuses.  Private universities do not have to comply with the First Amendment, but many profess to safeguard students’ free speech and academic freedom rights. 

Creating tension with these free speech obligations are universities’ civil rights obligations.  Any university that receives federal funding must comply with Title VI of the Civil Rights Act, which ensures that students are not discriminated against based on national origin, race, shared ancestry, or citizenship in a country with a predominant religious identity.  If Jewish or Israeli students are subjected to a hostile environment that is so severe and pervasive that it prevents the students from having equal access to their education, universities can be sued for violating federal law. 

There is no monolithic solution to approaching these varied protests.  Universities must separate protected speech from unprotected conduct to safeguard free speech and academic freedom rights for all of their students.

Some of these protests involve purely protected speech, and universities cannot ban students from having vigils.  Some protests involve unprotected and illegal conduct, like having weeks-long encampments where students cannot access certain parts of campus unless they agree with the protesters.  Universities, such as Berkeley, had been loathe to send police in to arrest student protesters, even if their protests involve unprotected conduct. 

As an extreme example, students at Barnard College disrupted a history of modern Israel class on its first day, shouted over students, and refused to partake in dialog.  The class was discussing the origins of Israel from multiple perspectives.  This sort of intrusion into the learning environment is not only not protected speech, but it undermines the academic freedom of the professor and the students in that class.  Protecting the sanctity of the learning environment, the students were expelled – protests of the expulsion have led to other instances of illegal protests, where (sometimes encouraged by professors) students have taken over buildings and put a security guard in the hospital.  This is an easy case of an illegal protest that actually undermines speech.  If Barnard’s administration hadn’t acted, students would likely feel intimidated out of taking certain classes.  Free speech does not protect shouting over other voices in settings organized for particular speech.  The United States free speech regime understands that coordinated efforts to disrupt speech allow a heckler’s veto that is inconsistent with the purposes of freedom of speech.

  A major problem in determining how universities should approach the Gaza protests is that some of the speech is ambiguously discriminatory, such as when students and professors denounce Zionism.  To some, Zionism is a political belief, supporters believe Jews have a right to self-determination in the ancient land of Judea and opponents believe that Zionism allows for Jewish supremacy and subversion of the rights of Palestinians.  However, Zionism can also be used as a slur or a way to discriminate against Jews, or only question Jews about their views regarding Israel.  Allowing students and professors to make discriminatory remarks about Zionists can be viewed as either pure political speech, like generalizing Republicans or vegans, or it may be seen as allowing discrimination based on ethnicity, religion, or national origin, like when protesters chanted that Zionists should “go back to Europe.”  Courts will have to use context to determine whether comments targeting “Zionists” creates a hostile environment for Jews or Israelis.

Other views expressed by protesters are more easily considered protected speech, even if the speech is inflammatory.  For the most part, those describing what Israel is doing as a genocide are engaging in protected speech even though these views may intentionally undermine the Holocaust or be designed to invert what has happened to Jews to delegitimize the Jewish state.  These students may be holding Israel – the world’s only Jewish state — to a double standard compared to other countries’ responses to attacks on civilians or wartime casualty rates caused by other countries.  The same goes for a term like ethnic cleansing, which may be seen as either bringing awareness to settlements in the West Bank and Gaza or may be attempts to invert the fact that Jews have been cleansed from basically all of the neighboring countries and have, as a result, often emigrated to Israel.  Even if speech is intentionally or subconsciously discriminatory, it may still be protected speech.  There is no exception to the First Amendment for hateful, ignorant, or unnuanced speech.  Dialog must happen around these topics, and Israel cannot be above scrutiny. 

Some speech of the protesters is likely protected speech but may, in the aggregate, create a hostile environment under Title VI.  For example, chanting “globalize the intifada,” which is used by some to glorify violent uprisings and deadly attacks against Israelis may, in some instances, rise to the level of unprotected incitement.  “From the river to the sea, Palestine will be free,” may be referring to driving all of the Jews out of Israel or may be referring to giving Palestinians sovereignty in a way that eradicates the state of Israel but allows Jews to remain there.  Praising Hamas, who has in its founding charter to kill Jews, may be a protected viewpoint in single instances but will create environments of fear in certain contexts. 

Universities should be incentivized to create protest policies divorced from this situation, that do not curb free speech but also ensure that students are protected against disruptive protests that block access to buildings and render them afraid to share their views.  An approval process for the content of speeches and slogans is an unconstitutional prior restraint at public universities, although private universities can experiment with different speech policies (private universities that promise their students free speech should steer clear of this type of content-based prior restraint). The essence of free speech is that it is not coercive, so a robust free speech regime allows pure speech while protecting students from disruptive or violent conduct that coerces agreement on an issue.  President Trump is correct that some illegal protests have created a hostile environment, but he is wrong if his tweet implies that all of these protests are illegal.  In addition, disproportionate responses to illegal protests may chill too much speech.  That said, universities who fail to disincentivize illegal protests undermine free speech and academic freedom rights for all of their students and allow a heckler’s veto to be placed over actual learning.