A recent New York Times article by Adam Liptak posed a wonderful question for budding free-speech theorists like myself. He inquires, "What role should the First Amendment play when foreigners are doing the talking and the topic may be terror?"
GENERAL ARGUMENT
Using framer's intent makes for an interesting argument. I submit that since the framers did not give equal rights to all citizens, we cannot claim that they intended to give equal rights to non-citizens. When the 14th Amendment expanded the application of the Bill of Rights, it specifically referred to citizens, except in the "due process clause," where the Amendment reads, "nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." And, as the court decided in Gitlow v. New York, the "freedom of speech and of the press-which are protected by the First Amendment from abridgment by Congress-are among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States." The Amendment itself claims to protect "persons" and not just citizens, so the barest reading of the Constitution would lead us to believe that aliens receive the same free speech rights as citizens.
CASES
But that is only half of the question. What if the security of our nation is threatened by the speech in question? I can reword that: is speech that endorses terrorism one of the risks that necessarily accompanies freedom of speech? Liptak gave two examples to work with. The first case clearly illustrates the different form restrictions on foreigners can take. It is not about someone in the United States being prosecuted; it is about the someone being denied legal entry into the States. In 2004, a Swiss Muslim philosopher named Tariq Ramadan was denied a visa. The government explained (page 6) that because of "material support Ramadan provided to undesignated terrorist organizations," he was not eligible for entry. Ramadan's case has been taken up by several institutions, notably the ACLU, who see it as an example of improper ideological exclusion. Unfortunately, and despite Liptak and the ACLU's efforts to paint the case otherwise, it is impossible to see this as being a free speech case. In the filing for the suit, Ramadan's defense claims that "the revocation was based on section 411(a)(1)(A)(iii) of the USA PATRIOT Act." This section says that a visa may be revoked if the alien "has used [his] position of prominence within any country to endorse or espouse terrorist activity, or to persuade others to support terrorist activity or a terrorist organization." The endorsement that the State Department has cited, contrary to Liptak and the ACLU's claims, is monetary, and not vocal. Furthermore, Ramadan's his defense has failed to provide documentation proving otherwise.
In the second case, Javed Iqbal and Saleh Elahwal are being prosecuted for routing Hezbollah's news network Al Manar into the United States. The government does a good job of taking the focus of this case away from free speech as they did in the Ramadan case, though with a less successful result. Instead of prosecuting on the basis of the speech in question, the prosecution centers on the fact that the two men were taking money from Hezbollah. The New York Sun article mentions that "prosecutors will base their case on the financial connection between al Manar . . . and Messrs Iqbal and Elahwal." According to an AP article, Iqbal and Elahwal are accused of violating the International Emergency Economic Powers Act. However, the defense seems to have it easy, for the act provides a specific exemption for "news wire feeds" and "any information or informational materials."
MY VIEW
The 14th Amendment makes it clear that citizens and non-citizens have equal rights; it is person hood that counts. In fact, the two cases presented indirectly prove this. Notice that both times the government avoided allowing the cases to become First Amendment issues. If they thought they had a Constitutional chance arguing against the free speech of these non-citizens, then they would not need to stretch themselves so far to avoid it. Therefore, in the end, the answer to Liptak's question is that the First Amendment covers everyone equally, regardless of topic.
Unrelated:
My favorite article this week: "Clinton Finds Way to Play Along With Drudge" by Jim Rutenberg.
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3 comments:
This is an appropriate topic especially for our current situation as a nation. It always seemed that the government could take away a "terrorist's" rights, but now that you put it in the context of the 14th amendment, it does not seem to be the case. In both Ramadan and Iqbal's cases, the government is stretching the question that they are prosecuted on because they know that if they were to be prosecuted on First Amendment questions then the "terrorists" would have a chance at winning. With the Patriot Act now, the government can probably win every case based on national security or terrorism questions. So even if someone is voicing his opinion in a non-threatening manner, the government will make it more dangerous by bringing attention to the idea and then punishing the person. The Firs Amendment should protect everyone, even those who dislike the government.
You bring up quite the interesting conundrum in this blog. Is it just enough to be within the U.S.’s borders to possess free speech, or must one be an American whose speech could not be construed as detrimental to the country? I, like yourself, side with the former.
I do personally agree with the rulings in the two cases you present. It is one thing to express your opinion (whether it be pro or anti-America). However, as you aptly note, when national security comes in to play, that is where the line must be drawn. It is a fuzzy line for sure (the never ending criticism of the Patroit Act is evidence of that), but it is a line nonetheless.
When it comes to the actual speech itself by foreigners, it (or any other speech issue for that matter) can be approached from an algorithmic standpoint. If the speech is not obscene, does not has a captive audience, or is not addressed directly to the individual with an immediate threat to violence, it is protected under the First Amendment. So, yes, as much as we all might cringe, an Arab American (or anyone for that matter) can walk down Green Street wearing a shirt emblazoned with the all too prevalent slogan “Death to America.” Moreover, they can meet with others who share this viewpoint and discuss it further. Evidence shows that this sort of thing occurred in the weeks and months leading up to 9/11. Yes, this is a scary thought for Americans like you and me. But sadly it is the world in which we live today.
What is troubling is that both these cases there's an implication that law enforcement became intersted in the defendents because of their views and then found other law infractions to hang them on. How do we define that interaction between a protected right and a punishable offense? Taken to another extreme, if a person was well known for hate speech, would prosecutors be able to investigate this person for unrelated unlawful behavior? I believe this is called the chilling effect.
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