Is Self-Censoring Unconstitutional?

It’s hard to imagine higher tribunals endorsing a federal district judge’s ruling against Secretary Marco Rubio in his effort to expel hatemongering noncitizens. Judge Nӧel Wise, a Biden nominee, avers that the laws Mr. Rubio relies on — to deport, say, the activist Mahmoud Khalil — breach the First Amendment. “Freedom of speech belongs to the people,” avers Judge Wise. “It is not the government’s to take.” Yet which “people” does she mean?The question is not as abstract as one might surmise. For one thing, Mr. Khalil isn’t even a party to the suit in Judge Wise’s court. That failed to bar Mr. Khalil from hailing the ruling, crowing that “no one should fear speaking up for Palestine.” Nor does the suit involve other noncitizen anti-Israel agitators like, say, Mr. Khalil’s fellow Columbia student Mohsen Mahdawi, nor Georgetown’s Badar Khan Suri, both of whom face deportation.Instead, the case was brought by student journalists of the Stanford Daily. Their suit says that they are declining reporting assignments “related to the conflict in the Middle East,” citing fears that “reporting on the conflict will endanger their lawful immigration status.” Two unnamed students, “lawfully present noncitizens with no criminal history,” sued Mr. Rubio, too, asserting that they “have likewise self-censored” due to anxiety over the secretary’s policies.Mr. Rubio, along with the homeland security secretary, also named in the suit, argue that the case lacks for standing. The students “admit that the government has not revoked their visas or initiated removal proceedings against them,” Mr. Rubio says in a court filing. “Nor do Plaintiffs inform the Court of what, exactly, they wish to say which they contend could render them subject to potential enforcement in the future.”Failure to offer evidence of concrete harm, a legal requirement, would typically derail a lawsuit of this stripe. Yet Judge Wise ruled that she was “unpersuaded” by the “mere fact” that the students “have not yet been targeted for Government enforcement means the Government is unlikely to target them in the future.” She reckons these students might “fail to rigorously self-censor their views that are supportive or empathetic to Palestinians.”It’s not our intention here to deny the gravity of the free speech questions that arise in the case of noncitizen activists faced with expulsion. American history is replete with such legal disputes involving the deportation of, say, anarchists and communists. Yet Stanford Daily v. Rubio has more of the earmarks of a late-night campus group therapy session. The case falls short of the standard of seriousness set by past precedents on this head. Feature, say, the case of Turner v. Williams, in which the Nine in 1904 held that America could expel noncitizens who espoused the terrorist agenda of the time, anarchism. Chief Justice Fuller, writing for the court, cast aside caviling over the First Amendment when it came to the power of the government “to exclude an alien who believes in or advocates the overthrow of the government or of all governments by force or the assassination of officials.”In the 1950s, in Harisiades v. Shaughnessy and Galvan v. Press, the Nine okayed deporting noncitizens for being communists. In 1972 the high court, in Kleindienst v. Mandel, allowed barring the entry into America of a Marxist. These cases buttress Fuller’s point in Turner that “as long as human governments endure they cannot be denied the power of self-preservation.” They bear recalling as Mr. Khalil’s case wends through the courts.

Is Self-Censoring Unconstitutional?

Is Self-Censoring Unconstitutional?

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