Fear Foreigners, and Free Expression: a Brief Reflection on Ideological Exclusion and Deportation in the United States

• Publication year: 2022

Fear Foreigners, and Free Expression: A Brief Reflection on Ideological Exclusion and Deportation in the United States

Julia Rose Kraut

Fear Foreigners, and Free Expression: A Brief Reflection on Ideological Exclusion and Deportation in the United States

Cover Page Footnote

Ph.D. in History, New York University; J.D. magna cum laude, Order of the Coif, American University Washington College of Law; B.A. magna cum laude, Phi Beta Kappa, Columbia University. A lawyer and historian, specializing in immigration and First Amendment law and history, who was the inaugural Judith S. Kaye Fellow for the Historical Society of the New York Courts and an Andrew W. Mellon Foundation Fellow at the New-York Historical Society. Author of Threat of Dissent: A History of Ideological Exclusion and Deportation in the United States (2020) and a contributor to Whistleblowing Nation: The History of National Security Disclosures and the Cult of State Secrecy (2020), edited by Hannah Gurman and Kaeten Mistry. Many thanks to the University of Georgia School of Law, Paige Medley, Taylor Cressler, and the editors at the Georgia Law Review for the opportunity to participate in the 2022 Symposium: "Immigrants and the First Amendment: Defining the Borders of Noncitizen Free Speech and Free Exercise Claims," as well as for the opportunity to contribute to this issue of the Georgia Law Review.

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FEAR, FOREIGNERS, AND FREE EXPRESSION: A BRIEF REFLECTION ON IDEOLOGICAL EXCLUSION AND DEPORTATION IN THE UNITED STATES

Julia Rose Kraut^*

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"Why should we be afraid of this man and his ideas?" asked Secretary of State William P. Rogers, referring to Belgian, Marxist economist Ernest Mandel.¹ In 1969, Mandel applied for a nonimmigrant visa to visit the United States after receiving invitations to speak at several American colleges and universities, including Amherst College, Columbia University, Princeton University, Massachusetts Institute of Technology, and the New School for Social Research.² Mandel had received visas to visit the United States twice before: one in 1962 and another in 1968.³ Yet, this time, Mandel's application for a visa was denied.⁴

The State Department informed Mandel he was inadmissible under a provision in the McCarran-Walter Act of 1952 that barred foreigners who advocated, wrote, or published "the economic, international, and governmental doctrines of world communism."⁵ Apparently Mandel was always inadmissible under this provision, but had received waivers of inadmissibility on the recommendation of the State Department and approval of the Attorney General.⁶ This time, however, the State Department did not recommend a waiver.⁷

Unbeknownst to Mandel, he entered the United States under a conditional visa, which placed limitations on his activities.⁸ The State Department claimed he strayed from his stated itinerary during his 1968 visit by attending a cocktail party, which included fundraising to support students involved in May 1968 protests in France.⁹ Mandel assured the State Department that, if granted a visa, he would abide by its conditions.¹⁰ The State Department agreed and recommended Mandel's visa under a waiver of

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inadmissibility, but Attorney General John N. Mitchell refused to grant the waiver.¹¹

Initially, Mitchell and the Justice Department did not provide a reason for the refusal, but they eventually cited Mandel's violation of his 1968 visa's conditions by attending the cocktail party as justification for refusing to grant the waiver and issue Mandel a visa.¹² The American professors who invited Mandel to come to the United States to speak on their campuses subsequently challenged the constitutionality of Mandel's visa denial as a violation of their First Amendment right to receive and hear information.¹³

In Kleindienst v. Mandel, the Supreme Court upheld Mandel's exclusion from the United States.¹⁴ Writing for the majority, Justice Harry Blackmun recognized the professors' standing to challenge Mandel's exclusion as a violation of their constitutional rights.¹⁵ Yet, the Court did not interpret Mandel's exclusion as a First Amendment issue, but rather as an immigration issue.¹⁶ As such, Justice Blackmun applied immigration legal doctrine, which required judicial deference to Congress's power to pass the McCarran-Walter Act, as well as to the Attorney General's power to enforce the Act's provisions and discretion to grant or deny waivers.¹⁷ The Court did not apply current First Amendment standards to evaluate the constitutionality of the McCarran-Walter Act and Mandel's expressions and associations.¹⁸ Instead, Justice Blackmun held that while the Court would not look behind it, the Attorney General must provide a "facially legitimate and bona fide reason" for exercising his discretion to deny the waiver and refuse to grant a visa.¹⁹ While this was a far lower standard than provided by the First Amendment, it was a standard the Attorney General

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and government could be held to, and it introduced a pathway to challenge exclusion in the future.

I still remember the day I read this decision as a law school student. I was fascinated by the intersection of immigration and First Amendment law presented by Mandel's exclusion, which I learned was an example of what is referred to as "ideological exclusion": barring foreign noncitizens from the United States based on their political beliefs, expressions, and associations. I began to examine this intersection of immigration restrictions and the suppression of free expression. I discovered the confluence of the two topics, including in the form of ideological deportations, had a long history that I could trace through the twentieth century and into the twenty-first.

The history of ideological exclusion and deportation is also essential to understanding how immigration law and dissent functioned in the United States, including recent restrictions during the War on Terror. In fact, at the time I first started my research in 2004, I read in the newspaper about Swiss Islamic scholar Tariq Ramadan and how his visa to come to the United States to teach at the University of Notre Dame was revoked.²⁰ Lawyers working at the American Civil Liberties Union challenged his exclusion, arguing it violated Americans' First Amendment right to receive and hear information.²¹

After many years of archival research and legal analysis, I wrote a book, Threat of Dissent: A History of Ideological Exclusion and Deportation in the United States, which was the first social, political, and legal history of the prohibition and expulsion of foreign noncitizens based on their political expressions, beliefs, and associations.²² I argued that Congress passed ideological exclusion and deportation laws—and public officials used them—as tools of political repression to suppress what I referred to as the "threat of dissent," including "criticism of the United States and its politicians, laws, and foreign and domestic policies; challenges to

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the status quo and capitalism; [and] calls for reform or revolution."²³ Ideological restrictions reflect a fear of subversion and a "perception of foreigners as the source of subversion."²⁴ These restrictions survived because the majority of the Supreme Court interpreted them as immigration issues and applied immigration legal doctrine, thus insulating the restrictions from substantive judicial review under strict scrutiny and protective speech tests under the First Amendment.²⁵

This short Essay provides examples from my research for Threat of Dissent that illuminate some of the underlying dynamics behind ideological exclusion and deportation in the United States. These dynamics reveal how ideological restrictions have been used as tools of political repression and why these tools have endured; how denaturalization was used to exploit the vulnerability of foreign-born residents; and how revisions to restrictions closed loopholes in order to support more ideological deportations, including of specific individuals. Also, these dynamics show how ideological deportations include selective, retaliatory deportations; how public officials who sought to prevent or delay ideological deportations have faced impeachment; how those who represent foreign noncitizens have become targets of the government; how ideological exclusions and deportations suppress free expression and exchange through embarrassment and humiliation; and how such restrictions damage the nation's image as a strong, confident liberal democracy, as well as its identity as a nation of immigrants.

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Foreign noncitizens have been targets of both governmental suppression and efforts to politically repress citizens and noncitizens alike. While the threat of dissent has changed over time, ideological exclusions and deportations have lingered, and their use has endured because of the Supreme Court's analysis of such deportations and exclusions under immigration law.

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One example that illustrates this dynamic is the Alien Immigration Act of 1903, the first explicit ideological restriction passed in the United States. The Act barred anarchists from the United States and authorized their deportation within three years of entry.²⁶ Congress passed this restriction as a direct response to the assassination of President William McKinley by anarchist Leon Czolgosz in 1901 at the urging of the new President, Theodore Roosevelt, and amid calls for action by the public and public officials.²⁷ Although the Alien Immigration Act would not have applied to Czolgosz, who was an American citizen and born in Detroit, Michigan, the Act nonetheless represented the view of anarchism as a "foreign" threat and reflected a growing concern about anarchist violence.²⁸ Viewing anarchism as a foreign threat began with Chicago's Haymarket Affair in 1886 and intensified after anarchists assassinated a number of European leaders and monarchs throughout the 1890s.²⁹

The Alien...