On January 29, President Trump issued an executive order prescribing “additional measures to combat anti-Semitism.” Its “most significant provision,” according to Tal Fortgang, is the requirement that the relevant departments “develop a process that would lead, ‘as appropriate and consistent with applicable law, to investigations and, if warranted, actions to remove’ non-citizens who support terrorism in various ways.” The measure takes aim at foreign students who have been involved in violent or intimidating anti-Israel demonstrations, especially on college campuses.
In addition to the protests from the usual quarters, such a policy has drawn criticism from good-faith defenders of free speech. Fortgang, however, is not impressed by their arguments:
As a legal matter, these objections miss the mark. Not all behaviors that are expressive in nature are protected speech, and with good reason. There are other important considerations, like preventing violence or prohibiting perjury, that warrant limiting speech, even based on its content. The Immigration and Nationality Act has long given the executive branch broad authority to exclude or remove foreign nationals who endorse or espouse terrorist activity. Courts have consistently upheld these provisions.
If explicit statutory authorization isn’t persuasive enough, consider it perjury. Foreigners seeking visas must disavow support for terrorism as part of their application. Subsequent expressions of support for terrorism, therefore, amount to a form of fraud regarding their visa eligibility. No constitutional principle protects deliberate misrepresentation in immigration proceedings. The statute authorizing deportations for speech that has certain disfavored content is on solid ground, not just because it is a rational law narrowly tailored to achieve a legitimate governmental interest, but because it simply authorizes punishment for lying to get into the country.
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More about: Donald Trump, First Amendment, Immigration, Israel on campus