Republicans Target Visas of Student Protesters. That Violates Free Speech, Experts Say.

By Dylan Wells / The Washington Post

16:12 JST, October 21, 2023

As tensions have erupted at college campuses throughout the country after Hamas’s attack on Israel, former president Donald Trump and other Republican presidential candidates have called to revoke student visas and deport foreign nationals who express support for Palestinians or criticize Israel’s military response – moves that would amount to violations of their First Amendment rights, according to some legal experts.

Student protests have ranged from urging a cease-fire or denouncing the treatment and killing of Palestinian civilians to blaming Israel for Hamas’s attack, a position that has been criticized across the political spectrum. Some Republican candidates have not differentiated the protests in their comments, generalizing protest participants as supporting Hamas.

Trump, the dominant polling leader in the GOP race, said this week that if he is returned to the White House, his administration would revoke student visas of “radical, anti-American and antisemitic foreigners.”

Florida Gov. Ron DeSantis (R) also expressed support for deporting international students who he deems supportive of Hamas, saying: “You don’t have a right to be here on a visa. You don’t have a right to be studying in the United States.”

And in a radio interview the same day, Sen. Tim Scott (R-S.C.) said of student protests: “If any of those students on college campuses are foreign nationals on a visa, they should be sent back to their country.”

The proposals reflect the determination by much of the GOP field to stake out increasingly hard-line stances against many Muslim immigrants and in support of Israel, with candidates saying that the United States should not accept any refugees from Gaza – where Israel has cut off electricity, food and fuel in response to Hamas’s deadly attack. The scrutiny on students and their response to the war triggered by Hamas’s strike also reflects the inclination by many Republicans to direct criticism toward universities and campus communities they have frequently clashed with on cultural issues.

Many Republicans have positioned themselves as stalwart defenders of free speech, often alleging that conservative views are muted at colleges and universities. Republicans’ posture on student protesters conflicts with that stance, some immigration and civil rights advocates said. Those advocates also cautioned that such proposals dangerously conflate protesters who criticize Israel’s response to Hamas’s attack or voice concern for Palestinians with those supporting Hamas – the militant group that controls the Gaza Strip.

“The First Amendment protects the right to speak of all people who live in this country, whether they’re here as citizens, whether they’re here as foreign nationals, whether they’re students, whether they’re visitors,” said David Cole, the national legal director of the American Civil Liberties Union and a law professor at Georgetown University. “The First Amendment prohibits the government from punishing someone for their speech or their association. And so I think they’re nonstarters.”

The Trump, DeSantis and Scott campaigns did not respond to questions seeking more-detailed explanations of how to reconcile the proposals with the Constitution’s protection of free speech or how they would determine which students they classify as anti-Israel or pro-Hamas.

Benjamin Johnson, executive director of the nonpartisan American Immigration Lawyers Association (AILA), said he “certainly wouldn’t trust [the candidates] as the judge and jury on what constitutes inappropriate protesting.”

Many of the protests Republican commentators and others in the party have criticized have featured students urging a cease-fire or denouncing the treatment and killing of Palestinian civilians in the Gaza Strip. However, some college groups issued statements placing the blame for Hamas’s attack on Israel, drawing backlash from faculty members, donors and alumni – most notably at Harvard University, where 30 student groups said in a letter that “the Israeli regime” was “entirely responsible for all the unfolding violence.”

A large number of the demonstrations have been organized by campus chapters of Students for Justice in Palestine, an organization that says it “seeks to empower, unify, and support student organizers as they push forward demands for Palestinian liberation & self-determination on their campuses.” The National Students for Justice in Palestine group celebrated the Hamas attack in a social media post, calling it “a historic win for the Palestinian resistance.” The organization did not respond to an interview request.

The proposals from the GOP candidates are welcome to some conservative voters such as Ruth Wagner, a retiree from Marion, Iowa, who attended a town hall for former U.N. ambassador Nikki Haley on Friday. Wagner – who is still deciding whether to support Haley, Trump, DeSantis or Scott in the GOP race – said she is “absolutely for” the student visa revocations.

“They should be considered terrorists and they should go home,” Wagner said. When asked whether international students advocating for a cease-fire should face deportation, Wagner said, “They’re on shaky ground, but if they support Hamas, they should be gone, period.”

Some attendees at the same event took a different view. “They’re not to blame. It’s not the students fault,” said Marla Wessel, a self-described Haley supporter. “They’re protesting for what they believe in. … I just don’t think the students should be [deported], unless it gets more violent, unless they find somebody that’s infiltrated.”

Robert McCaw, director of the government affairs department at the Council on American-Islamic Relations, the nation’s largest Muslim civil rights and advocacy organization, said the proposals to revoke student visas should be viewed “through the context of recent historical discrimination against Muslim communities,” citing the National Security Entry-Exit Registration System created after the 9/11 terrorist attacks and the Trump administration’s ban on travel from several Muslim-majority countries.

“We’ve already seen elected officials and media miscategorize pro-Palestinian, pro-human-rights rallies as being in support of violence, instead of opposing it,” since the war began, McCaw said. “This mischaracterization has led to the silencing of potential Muslim voices that would want to speak out on this issue but fear retaliation at school or in the workplace.”

Before the war, polling suggested a generational and ideological divide in how Americans view the Israeli-Palestinian conflict. A Gallup survey earlier this year found that the percentage of Americans sympathizing more with Israelis than Palestinians is “solidly positive among older generations” but that “millennials are now evenly divided.” According to a recent Quinnipiac University poll conducted after the war began, voters 18 to 34 disapproved of the United States sending weapons and military equipment to Israel in response to Hamas’s attack, by a margin of 51 percent to 39 percent, whereas every other age group approved.

The Gallup poll found Democratic sympathies in the Middle East now lie more with the Palestinians (49 percent) than the Israelis (38 percent). In contrast, 78 percent of Republicans sympathize more with the Israelis, while 11 percent side with the Palestinians.

“The overwhelming majority of Republicans are very sympathetic to Israel and very supportive of Israel’s right to exist peacefully with its neighbors,” said Republican pollster Whit Ayres. “That’s especially true among evangelical Christians, who form such an important component of the Republican primary.” He said proposals such as those the GOP candidates are advocating for are in a way performative politics, because they “are going to get slapped down by lawyers and judges in a heartbeat.”

In an interview with Fox News Radio’s Guy Benson, DeSantis claimed college students are “falling all over themselves to try to glorify Hamas terrorists,” arguing that “we need to reorient academia” so that it is not “trying to impose radical ideologies on the students.” Battles over college campuses and education have been central to DeSantis’s record in Florida, where he defunded diversity, equity and inclusion programs at public colleges.

Scott framed his proposal around the “indoctrination of our young people versus the education of our young people,” claiming that students are now taught “that America is evil, or that Western democracies are somehow oppressors.”

AILA’s Johnson said this of the comments made by Trump, DeSantis and Scott: “What I hear in that ugly rhetoric is saying that there can be no disagreement with the U.S. position or no disagreement with Israel. It sounds to me like: Where do we draw that line? Does that mean that anybody who’s concerned about the plight of 1.3 million people in Gaza, that we would try to deport them?”

“You can be both pro-Israel and pro the protection of innocent people in Gaza,” he added. “And before the Republican Party goes down the road of trying to punish people for simply disagreeing with popular opinion, they should check themselves.”

Some of the rhetoric that focuses on student visas echoes the broader posture on immigration that Trump and much of the GOP has embraced in recent years.

“Under the Trump administration, we will revoke the student visas of radical, anti-American and antisemitic foreigners at our colleges and universities, and we will send them straight back home. They go back home. Enjoy your life,” Trump said Monday in Iowa. In the same speech, he proposed harsher restrictions on immigration based on ideology, promising to “deport resident aliens with jihadist sympathies.”

DeSantis said on “The Megyn Kelly Show” that “any of those students who are here on visas, those visas should be canceled, and they should be repatriated back to their home country. That’s a no-brainer.”

“Why would we want to welcome people into this country who are totally hostile to basic American decency and values?” he added.

The idea of revoking student visas has also spread among some Republicans on Capitol Hill. Sen. Marco Rubio (R-Fla.) said he would file a resolution calling to “deport any foreigner who supports Hamas.” Over the weekend he sent a letter to Secretary of State Antony Blinken urging him to “immediately perform a full review and coordination effort to revoke the visas of those who have endorsed or espoused Hamas’s terrorist activity.” Rubio has previously suggested rescinding visas, after the Boston Marathon bombing.

Sen. Tom Cotton (R-Ark.) on Monday sent a letter to Homeland Security Secretary Alejandro Mayorkas likewise urging him to deport any foreign national who has expressed support for Hamas, citing language in the Immigration and Nationality Act regarding anyone who “endorses or espouses terrorist activity.”

Cole, the ACLU legal director, said that he was not aware of anyone ever being deported under that provision and that if the Department of Homeland Security sought to enforce it, it would face “a serious First Amendment problem.”

“The proposals are not unprecedented, but the precedents are not ones we should be proud of,” Cole said, pointing to instances where laws to make it a deportable offense to advocate communism or be affiliated with the Communist Party in the McCarthy era, or to affiliate with anarchists in the 1920s, were abused and applied in an overly broad manner that swept up people who simply expressed dissent. The most recent version of such a law was struck down and repealed by Congress.