Starting this week, I once again have the privilege of teaching law students about the First Amendment, a subject in which Americans rightly take great pride. But this term, the job will feel very different. I am in the United States on a green card, and recent events suggest that I should be careful in what I say—perhaps even about free speech.
As I prepare my lecture notes, the Trump administration is working to deport immigrants, including green-card holders, for what appears to be nothing more than the expression of political views with which the government disagrees. These actions are chilling. They also make it difficult to work out how to teach cases that boldly proclaim this country is committed to a vision of free speech that, right now, feels very far away.
In recent weeks, the Trump administration has been—is there any other way to describe it?—rounding up dissidents. Government agents whisked one student off the street into an unmarked car, apparently for the thought crime of co-authoring an op-ed about Israel and Gaza in a student newspaper—an article that likely reached only a modest audience until the government made it grounds for detention. The administration arrested Mahmoud Khalil, a recent Columbia University graduate, on his way home from dinner, in front of his pregnant wife, not for any crime but for his participation in pro-Palestinian protests. Headline after headline has spoken of similar cases around the country, and the administration shows no sign of letting up. To more easily chase down people with ideas it dislikes, the government is asking universities for the names and nationalities of people who took part in largely peaceful protests and engaged in protected speech.
Exactly what kind of expression gets you in trouble is not clear—no doubt that’s partly the point. As Donald Trump’s offensive rapidly escalates, no one can be sure they are safe. Is publicly criticizing the administration’s speech suppression risky? I genuinely don’t know.
None of these actions is consistent with the vision of America depicted in bedrock First Amendment cases. The ruling in New York Times v. Sullivan describes a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” a quote the Court likes to invoke often. The claim has bolstered the U.S. Constitution’s reputation as the most speech-protective in the world, which inspires patriotism for lawyers and non-lawyers alike. But this country’s free-speech tradition depends on far more than words in a centuries-old legal document—and as we are learning, those words might mean very little in the absence of a broad societal commitment to upholding them.
My native country, Australia, does not have an explicit constitutional protection for free speech. Its defamation and hate-speech laws would likely appall First Amendment true believers. Given this acculturation, I arrived in America perhaps reflexively skeptical of a doctrine that protects some genuinely harmful expression. But over the years, I have been convinced that empowering the government to punish speech also empowers it to target its critics.
One does not need to look overseas for a different approach to free speech, though. We need only look back in time. Indeed, one thing that always surprises students in First Amendment classes is how recent and fragile the famously speech-protective modern doctrine is. Many assume that free speech is an indelible part of American culture that stretches back to the founding era. Far from it. This country’s free-speech tradition is much younger, and its victories hard-fought.
In the early 20th century, the first Red Scare led state and federal governments to enact, and courts to uphold, highly restrictive speech laws. Dissidents were locked up for circulating pamphlets and articles opposing the American war effort in World War I; a Socialist Party presidential candidate, Eugene Debs, was jailed for a speech that criticized the draft.
Rulings upholding repressive laws stood for decades but ultimately came to be seen as an embarrassment and a stain on this country’s history. When I was studying the First Amendment after arriving in the United States, my professor, Richard Fallon, told us that “if there is any travesty in the history of the First Amendment that ought not to be repeated, it is what happened to Eugene Debs.”
First Amendment courses invariably then turn to the heroic dissents and concurrences of Justices Oliver Wendell Holmes and Louis Brandeis, which are now cited and celebrated for expressing the true meaning of the First Amendment. These opinions do not minimize the harm that speech can cause but argue that democracy and the pursuit of truth require bravery. “Those who won our independence by revolution were not cowards. They did not fear political change,” Brandeis wrote. The Constitution therefore demands that “if there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”
In subsequent decades, these canonical opinions ushered in a free-speech tradition that interpreted the First Amendment expansively and in rousing terms. Majority opinions would come to describe a Constitution whose “fixed star” is that “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion”; whose “proudest boast” is that “we protect the freedom to express ‘the thought that we hate’”; whose critics more often fault it for protecting too much speech, not too little.
The First Amendment tradition that has evolved over the past century is not unfailingly robust. For example, a 2010 Supreme Court decision upheld a law banning certain forms of speech that are classified as “material support” to foreign terrorist groups—in that case, the speech included training designated groups on how to pursue their aims peacefully. But even in that case, which upheld a stunningly broad speech restriction, the Court also insisted that nothing in its opinion undermined the general principle that advocacy of unlawful action is protected so long as it is not done in coordination with terrorist groups.
The Trump administration argues that, however strong speech protections are for citizens, noncitizens “don’t have a right to be in the United States to begin with,” as Secretary of State Marco Rubio recently put it. Rather, we are here at the pleasure of the government and can be exiled if we say the wrong thing. The first word in permanent resident seems not to mean what I thought.
This argument is impossible to reconcile with the principle that the Court said last year rests “at the heart of the First Amendment”: that such “viewpoint discrimination is uniquely harmful to a free and democratic society.” (The Court held that attempts by a New York State official to pressure companies to stop doing business with the National Rifle Association because she did not like the group’s gun-rights advocacy would violate the First Amendment.) The administration’s argument also ignores citizens’ right to hear what noncitizens have to say; in 1965, the Court held that the government cannot restrict Americans’ right to read even Chinese propaganda. The administration’s position makes you wonder what noncitizens have to say that is so scary that it cannot be rebutted with more speech. And perhaps most important of all, to accept this argument is to assume—without any good reason that I can see—that this punishment of dissent will stop with foreigners.
My students will surely ask whether the events in recent headlines are consistent with the First Amendment principles that I am teaching them. And I find myself in the surreal position of wondering whether my answer could endanger my own place in this country, for which I am very grateful. Noncitizens are making calculations like these every day now. Recently, the NPR journalist Michel Martin interviewed Deputy Secretary of Homeland Security Troy Edgar about the deportation of Khalil, the former Columbia student. “This is a person that came in under a visa,” Edgar said. “And again, the secretary of state at any point can take a look and evaluate that visa and decide if they want to revoke it.” Edgar repeatedly refused to answer Martin’s simple question: “Is any criticism of the United States government a deportable offense?”
So of course your noncitizen neighbors are hesitating before they speak their mind, wondering whether speaking their mind is worth the risk of deportation, detention, or problems at the border. The chilling effect is not just for noncitizens: As many powerful institutions in American society seem to be acceding to Trump’s demands, of course those less powerful will stay silent. Prominently punish enough critics, and there will cease to be critics to punish. This is exactly the world that the First Amendment promised to prevent.
One of the sad ironies of the current moment is that the Trump administration also claims that it is waging a war against censorship. It is trying to argue that deporting people for expressing views the administration dislikes “is not about free speech.” But as I work out what to say in the classroom this week, I know that isn’t true.
The post Can I Teach the First Amendment If I Only Have a Green Card? appeared first on The Atlantic.
