By Elliot Walker
The recent string of deportations in the United States, characterized by images of masked Immigration and Customs Enforcement Agents grabbing individuals off of the street and forcing them into unmarked vans, raises serious questions about the foundational rights of non-citizens within American borders. Rümeysa Öztürk, a Turkish national and Fulbright scholar studying for a Ph.D. at Tufts University in Boston, was detained near her home by plainclothes officers and transported through a number of ICE detention facilities before ending up in Louisiana. Upon asking an agent whether she was physically safe, Öztürk reported that he replied ‘we are not monsters’, and ‘we do what the government tells us’.
It appears that the 30 year old woman was targeted for her contribution to an article in the Tufts Daily, a student newspaper, in which she criticized the university’s response to the ongoing war in Gaza. The Department of Homeland Security claimed that the detention and subsequent revocation of Öztürk’s student visa was performed on the grounds that Öztürk engaged in activities in support of Hamas, which is designated as a terrorist organization by the U.S. and much of the western world. Nonetheless, a leaked State Department memo determined that the Trump administration had not produced evidence showing that she engaged in antisemitic activities or made public statements in support of a terroristic organization, concluding that they did not have sufficient legal grounds to revoke Öztürk’s visa.
Öztürk’s detention raises broader concerns about the weaponization of ostensibly liberal institutions for fundamentally illiberal aims. Öztürk, along with a number of other students, have been targeted for exercising free speech in a nation in which free speech is among the most fundamental of human rights. The DHS memo makes clear that Öztürk was targeted not for a concrete threat posed to the national security of the United States, but for engaging in political expression in opposition to the Trump administration’s foreign policy. While the First Amendment supposedly shields ‘persons’, not merely citizens, from government retaliation, non-citizens are increasingly vulnerable to state action.
The First Amendment makes no mention of the distinction between citizens and non-citizens when granting the right to speak freely without interference by the government. The Supreme Court has generally upheld these protections in cases such as Bridges v. Wixon, in which justice Francis W. Murphy stated that ‘once an alien lawfully enters and resides in this country, he becomes invested with the rights guaranteed by the Constitution to all people within our borders. Such rights include those protected by the First and the Fifth Amendments’. However the extent to which these protections exist in the context of immigration law remains unclear, with parts of the federal government having almost total authority. Under the Plenary Power Doctrine, Congress and the Executive branch have the powers to enact and enforce immigration policy subject to limited judicial oversight. Trump has cited the 1952 Immigration and Nationality Act as the source of his legal authority to pursue the deportations, which states that non-citizens can be deported if the Secretary of State has reasonable grounds to believe that their presence ‘would have potentially serious adverse foreign policy consequences for the United States’.
One could have reasonable doubt that the writing of an op-ed has ‘serious adverse foreign policy consequences’, especially given the findings of the DHS memo. Even if the usage of this clause is taken to be legitimate, its vagueness leaves it open to be abused. If speech that is merely in opposition to U.S. policy can constitute a deportable offense, non-citizens in the U.S. seem to have no practical free speech rights. While they might theoretically enjoy protections under the First Amendment, they are practically subject to retributive deportation as a result of this speech.
This is a betrayal of the philosophical and political principles which underlie American constitutional democracy. First Amendment protections are intended to safeguard all voices, regardless of whether or not they are in agreement with the foreign policy objectives of the state. When the institutions of a democracy are used for illiberal purposes, such as the deportation of students like Öztürk, the integrity of these institutions might be eroded. When the fundamental rights of non-citizens are bypassed, it sends a worrying message about the degree to which the federal government believes in the ideals it was founded to enshrine.
The Declaration of Independence held rights such as life, liberty, and the pursuit of happiness to be irrevocable and intrinsic to each human being. According to the founders of American government, rights are a result of our shared humanity, they are not things which can be granted and taken away by the state. Law professor C. Edwin Baker argued for a concept of freedom of speech in which it can be taken as key to individual fulfillment. On this view, non-violent and non-coercive speech provides an essential means by which an individual establishes their identity and develops their ideas. Justice Thurgood Marshall agreed, arguing in Procunier v. Martinez that ‘The First Amendment serves not only the needs of the polity, but also those of the human spirit — a spirit that demands self-expression. Such expression is an integral part of the development of ideas and a sense of identity. To suppress expression is to reject the basic human desire for recognition and affront the individual’s worth and dignity’. The suppression of non-violent and non-coercive free speech by the state could thus be viewed as an attack on the fundamental and inalienable right to liberty.
Suppression of free speech also risks perpetuating a ‘chilling effect’ whereby speech restriction inadvertently deters speech outside of the scope of the restriction. Given the vagueness of the law being invoked to authorize these deportations, it is likely that non-citizens will avoid engaging in perfectly lawful expression for fear of punitive government action. This has the effect of stifling conversations around controversial issues, undermining the ‘marketplace of ideas’ notion of free expression that has been cited numerous times by the Supreme Court to oppose censorship.
This effect is particularly concerning given that those being targeted are students at major U.S. universities. Universities are supposed to be centres of free expression and intellectual diversity, and if this status is threatened, innovation and progress are threatened as well.
This is not to say that the national security concerns of the United States should be disregarded when considering the limit of free speech of non-citizens. However, there is no indication that Öztürk presented a legitimate threat to U.S. foreign policy. No credible evidence demonstrates her support of Hamas, and the authoring of an op-ed can only be considered ‘threatening’ on the most expansive reading of the term.
The case of Rümeysa Öztürk offers a disturbing picture of the status of free expression in modern America. The Trump administration is entirely willing to weaponize immigration law against its ideological opponents, regardless of its erosion of democratic norms. Non-citizens on university campuses in the United States may exist in a climate of fear, afraid to voice their opinions and engage in the debates in the spaces in which this is to be most encouraged. When vague laws are used to punish lawful free expression, citizens of a democratic country must be deeply concerned about their governments commitments to the values it was founded to protect.
Image: Pixabay
The views expressed in this article are the author’s own, and may not reflect the opinions of The St Andrews Economist.