You Can Say That Here

by Henry on June 27, 2006

It would appear that Tariq Ramadan has won an important victory in his legal battle against his exclusion from the United States.

A federal judge on Friday gave the U.S. government 90 days to act on the visa application of a renowned Muslim scholar who has been kept out of the United States for two years … [I]n forcing the government to make a decision about the scholar, Judge Crotty rejected — sometimes in mocking tones — many government arguments that would have given federal officials broad power to exclude people from the United States without giving any reason. … despite the wide latitude federal officials have to deny visas, Judge Crotty wrote, “it cannot do so solely because the executive disagrees with the content of the alien’s speech and therefore wants to prevent the alien from sharing this speech with a willing American audience.” Further, Judge Crotty wrote: “The First Amendment rights of Americans are implicated when the government excludes an alien from the United States on the basis of his political views, even though the non-resident alien has no constitutionally or statutorily protected right to enter the United States to speak.”

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06.27.06 at 11:50 pm

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1

rd 06.27.06 at 11:37 am

I think Ramadan should be allowed in, but Crotty’s opinion sounds like shaky constitutional law. Authority to exclude aliens is pretty much plenary, and has been held to be so for a long while.

2

Steve 06.27.06 at 12:19 pm

rd- You’re right.

“The First Amendment rights of Americans are implicated when the government excludes an alien from the United States on the basis of his political views, even though the non-resident alien has no constitutionally or statutorily protected right to enter the United States to speak”

are these really the words of a judge?

Steve

3

soru 06.27.06 at 12:26 pm

The method of interpreting scripture used by the judge actually rather resembles that of Ramadan.

4

Scott Martens 06.27.06 at 12:32 pm

Yeah, it would be nice to set a precedent allowing that non-nationals, being human beings, have a right to be treated in a non-arbitrary way. To some extent this is enshrined in European law, at least with respect to other Europeans, but a broad acceptance of the idea that non-nationals have actual rights is probably not going to stand in this day and age.

I note that the US government argued in its defense that Ramadan “has never had a visa revoked, a visa application denied, or any other adverse action taken against him.” US Immigration deserved to loose simply for putting forward such nonsense.

5

abb1 06.27.06 at 12:33 pm

Why, I thought he made perfect sense: I am an American citizen who wants to hear what the alien guy has to say -> you refused the alien guy a visa -> you violated my right to free speach.

IOW: yes, an alien guy has no right to enter simply because he has something to say, but once he has an invitation from a group of citizens – that’s a different story. Isn’t this logical?

6

Scott Martens 06.27.06 at 12:50 pm

Abb, that particular argument was definitively rejected in Kleindienst v. Mandel. Where the government puts forward a real reason for its rejection of a visa, there is no grounds for action in US courts.

What this case held (so far, I’m halfway through the decision) is that the US has so far failed to give a reason, since it has not actually rejected a visa application, merely sat on it for two years; and that rejecting a visa application on speech grounds alone is insufficient. In Mandel, the guy had previously behaved poorly while in the US, although he had not actually broken any laws.

7

Matt 06.27.06 at 12:55 pm

I’ll be interested to see what happens on this, in part because a very similar argument was put forward and rejected in a supreme court case dealing with the Marxist scholar Ernest Mandle (SP?- no relation to Jon, I think) many years ago. This theory (the free speech one) was supported by Marshall in his dissent, but was given no credence by the majority, so just from what’s written here (I’ll look more later) it’s hard to see how this is right as a matter of law, even if it would be a good result.

8

abb1 06.27.06 at 1:02 pm

Scott, of course if they have a reason to distrust the guy (behaved poorly or whatever) – that’s fine.

But what about this: I invite the guy to listen what he has to say and the government won’t allow the guy to enter because they don’t want me to hear it. How is this not a violation of my constitutional rights?

9

Scott Martens 06.27.06 at 1:26 pm

Abb, I agree, but the law only agrees in part. Apparently, there are precedents where the US can’t refuse an application on speech grounds alone, but where the law specifically states that there are some speech grounds for denying a visa (in Mandel, “advocating world communism”) the government may get away with it.

DHS has failed to act on Ramadan’s visa application – that’s their stand. Visa applications normally take 2 days, 30 in complex cases, DHS has sat on it for most of a year. The Chron has the decision wrong. The judge has ordered DHS to issue a judgement on Ramadan’s visa application within 90 days.

The judge says that only once a decision has been issued, then he can address the First Amendment issues. And, he found that under the Administrative Procedure Act, he is empowered to order DHS to issue a decision where it’s clearly siting on the application.

This decision doesn’t seem to touch the free speech issues. Basically, he’s postponed all the free speech arguments until the government makes a visa decision. If the government now rejects the application, then the case can go forward.

10

Scott Martens 06.27.06 at 1:27 pm

Ooops, no the Chron has it right, in the first two paragraphs. The rest is besides the point.

11

Henry 06.27.06 at 1:31 pm

Scott – that’s partly my fault in excerpting. The IHE piece makes it clear that it’s an exercise in administrative law with a serving of constitutional snark on the side. I should have taken one or two sentences to make this clearer.

12

eweininger 06.27.06 at 1:39 pm

13

Vance Maverick 06.27.06 at 4:30 pm

Looks like your link was blocked there, eweininger. That violated my freedom of speech!

14

eweininger 06.27.06 at 5:09 pm

Maybe I was exercising my first amendment right not to link. Did you ever think of that??

Actually, I was trying to draw attention to this piece (via Daniel Drezner’s site), which–in case my link fails again–is at christianitytoday.com, and which uses CT for to both praise and decry the blogosphere.

15

Brett Bellmore 06.27.06 at 5:12 pm

“Why, I thought he made perfect sense: I am an American citizen who wants to hear what the alien guy has to say -> you refused the alien guy a visa -> you violated my right to free speach.”

I think that argument lost what little force it might have had the day they invented the telephone. By now, I can hear what an alien says on the other side of the planet better than I can hear an American on the other side of the room.

And that was very little force indeed, because the dude’s absence from this country isn’t stopping you from saying anything, so excluding him had precisely zero impact on any American’s freedom of speech.

“Visa applications normally take 2 days, 30 in complex cases,”

LOL! On what planet? I’m in the process of helping my finacee enter the country so that we can get married, and I assure you the INS can kill a month just getting around to telling you that they raised the application fee after you mailed the forms, so do it all over again with a bigger check. We’ve been at this since last year, and if there are no more hitches, she gets interviewed in another two months.

Two days… what a fantasy that is!

16

minerva 06.27.06 at 5:38 pm

They’ve been doing this for years. First it was scholars from Cuba, then Mexico (if they were leftwing). It’s not only a post 9/11 thing.

I’ve seen a number of visitor visas turned down even when invited by prestigious universities way before 9/11. Commies, ya know. Remember them?

17

Mr Ripley 06.27.06 at 9:54 pm

They’ve been doing this for at least fifty-four years. There was a bit of a thaw between 1990 and 2001, evidently.

18

Scott Martens 06.27.06 at 11:09 pm

Brett, those are the stated normal processing times for non-immigrant visa applications. Fiancée visa are immigrant visas.

19

abb1 06.28.06 at 1:11 am

…the day they invented the telephone…

Yes, but in Ramadan’s case, he was supposed to teach a class in the US, at the university of Notre Dame. That’s hard to do over the phone. Of course I don’t mean just a private conversation – athough having a private invitation does, in fact, help a lot if you’re applying for a visa.

20

soru 06.28.06 at 3:50 am

While obviously the right decision, the actual argument used seems just about as constitutionally supported as arguing he should have been banned, as otherwise the free speech of US citizens would have been impeded as they would have lost the opportunity to complain about the ban.

Which I personally have no problem with – the idea that written words in some way constrain the actions of people who claim to be believe in them is one of the commoner fallacies.

21

Brett Bellmore 06.28.06 at 5:54 am

Scott, from many countries, (The Philippines, for instance.) non-immigrant visas are no quicker. Which is why my fiancee can’t visit me as a tourist. I know, I’ve talked to many applicants.

My point is simply that long delays in visa processing are not nearly so unusual as you portray them. Visa processing can be fast for a very restricted range of non-contraversial cases, (Tourist visas from western democracies, say.) Visas for employment are not among them.

Abb1, keeping him out may be dubious as a policy matter, but from a First amendment standpoint, keeping him out in no way whatsoever interferes with the free speech rights of Americans. I expect this ruling to be overturned.

22

abb1 06.28.06 at 6:16 am

Brett, suppose they ban Al-Jazeera or BBC from broadcasting in the US.

Suppose they start running powerful noise generators on Al-Jazeera’s and BBC’s frequencies.

Would that, in your opinion, interfere with the free speech rights of Americans?

23

Scott Martens 06.28.06 at 6:28 am

Brett, you have the facts of the case wrong. Ramadan, having had a visa revoked, may not enter the US even as a visitor to speak at conferences without obtaining a visa in advance. The order in this case refers to a decision on a non-immigrant ordinary entry visa. The State Department website says that for the Bern consulate the average wait time for a non-immigrant visa is 2 days.

24

Brett Bellmore 06.28.06 at 6:29 am

Not unless Al Jazeera or the BBC were hiring Americans to do their speaking. It’s freedom of speech, not freedom of having something to listen to.

Don’t, by the way, assume that I think keeping him out is good policy. I don’t. Plenty of bad policies are constitutional.

25

abb1 06.28.06 at 6:59 am

Suppose they place every individual American into a personal sound-proof bubble. When you talk inside your bubble no one will hear you, but you still can talk freely in there. So, technically, there is no constitutional violation here, correct?

26

brooksfoe 06.28.06 at 9:08 am

abb1, this reasoning sounds like the reasoning of a non-lawyer. Which, in the normal world of human moral reasoning, is a good thing. But, in the world of thinking about how the law works, is a bad thing. (Spoken as a non-lawyer, whose thinking about the law is usually faulty.)

I do however imagine that judges might interpret the definition of “freedom of speech” as necessarily implying the right to be heard, while still not granting a right to hear others’ speech. But I have no idea.

27

Uncle Kvetch 06.28.06 at 12:21 pm

It’s freedom of speech, not freedom of having something to listen to.

By that logic, the government could arrest people for having books by foreign authors in their homes, without in any way encroaching on their First Amendment rights. They’re not being arrested for anything they said, after all, so the Constitution is irrelevant.

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