That 'landmark' free speech ruling misses the point

There's been a lot of excitement about last week's ruling by a federal judge in Boston that the Trump administration, in its efforts to deport college students holding objectionable political views, violated the First Amendment. Commentators have described the opinion by District Judge William G. Young as "blistering" and a "landmark" — and so on in that vein. And I'm pleased to see that the court tried to find a way to extend the protections of free speech to those present in the country on temporary visas.

But even though I'm in sympathy with the outcome, I find the celebrated opinion itself oddly unpersuasive, perhaps because the judge sets out to answer the wrong question. Appalled as I am by the administration's assault on dissent, I wonder whether constitutional rights give us the proper lens through which to study what's gone so constitutionally wrong.

Here's a nice, clear democratic principle: The government should not keep track of what the people subject to its jurisdiction are saying — no surveillance, no recordkeeping, and certainly, no punishment. Yes, there are rare exceptions, but they must remain rare. Otherwise, debate suffers, which means that democracy suffers. Here's a corollary: The government should neither be granted nor presumed to possess broad powers that would enable it to violate the principle.

As any libertarian will be quick to note, that's not really a point about the rights of individuals; it's a point about the structure and limits of government.

To see why, let's turn to Association of American University Professors v. Rubio, the decision handed down by Judge Young. The plaintiffs — three chapters of the AAUP, together with the Middle East Studies Association — argue jointly that their members' speech has been chilled by the crackdown on noncitizens who, in the words of President Donald Trump's day-one executive order, "espouse hateful ideology" — in particular, speech that is pro-Palestinian or anti-Israel.

The deportations around which the case revolves arise from the exercise of the secretary of state's statutory authority to deport visa holders for otherwise lawful "beliefs, statements, or associations," but only if failing to do so would, in the secretary's judgment, "compromise a compelling United States foreign policy interest." The secretary holds the even broader authority to revoke a visa "at any time, in his discretion."

These are breathtaking grants of authority about which, as scholars often complain, there's remarkably little law. The issue before the court — an issue around which judges have traditionally tiptoed — was whether the First Amendment limits those and similar discretionary federal powers over visa holders. For example, the government cannot punish one of its own citizens for the most vile expression of anti-Semitic views; contrary to what left and right too often seem to think, the First Amendment admits no exception for "hate" speech. But what about a noncitizen on a student visa? Are the rules the same? That was, until recently, ground largely untrod.

Judge Young concludes that the secretary of state's broad discretion does not extend to deporting visa holders on the basis of speech alone, no matter how odious; and he concludes further that it was speech, and only speech, which prompted the visa revocations at issue.

I'm a near-absolutist on free speech, so I like the outcome. But the opinion itself is problematic — sufficiently problematic, I suspect, to invite reversal on appeal. For one thing, it's unnecessarily long (more than 160 pages) and, to be frank, sloppily written — with lots of repetition, meandering detours into politics, and such elementary errors as confusing "staunch" and "stanch." The New York Times, with old-fashioned understatement, called the opinion "exhaustive and winding." Parts of the text read like a press release — a feature that may help explain why the news media found the opinion so quotable. Moreover, the judge dismisses with just a few sentences the most relevant Supreme Court precedent.(1)

The difficulties emerge, I suspect, not from any inability to cope with the issues, but from the challenge of trying to fit into a First Amendment framework what's really a problem of government power in a democracy.

Another immigration-related example might help make the point. First Amendment fans are up in arms about Apple's recent decision to yield to Department of Justice pressure and remove from its app store ICEBlock and other applications that crowdsource information enabling users to track, in real time, the location of immigration agents. The developer says the app can help people avoid the area; the Justice Department says it can endanger federal personnel; and, reportedly, the Dallas detention center shooter used this app or a similar app to locate targets.

But the issue isn't whether true information can be misused by those with wicked agendas; the issue is the lack of debate over what amounts in practice to government pressure for a ban. The ease with which the Justice Department swept ICEBlock out of the app store is concerning. If the federal government is so large and powerful that the mightiest corporations in the world tremble at its slightest whim, what chance do ordinary individuals have when its angry gaze burns our way?

The real challenge we face is the vast power we have concentrated in the federal government in general and in the presidency in particular. As much as we might talk about courts as checks on executive authority, the sad truth is that Congress has granted the president too much authority to check. Whatever lever of power a judge might refuse to let the administration use, there's always another to tug. (See the Harvard litigation.)

Maybe it's too late to imagine a smaller federal establishment with fewer powers. But as current events illustrate, if that's the case, then the only real check is the ethical compass of the occupant of the Oval Office and those who advise him. Right now, they don't seem to be pointing true north.

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(1) In addition, the opinion seems to misread the Supreme Court's most recent cases on the standing of associations to assert the rights of their members — a simple ground for reversal, should an appellate court prefer not to reach the merits of the case.