Geoffrey A. Hoffman, Using the Deportation Power to Threaten Free Speech

January 14th, 2013 Posted in First Amendment, Immigration Issues
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Geoffrey A. Hoffman
Clinical Associate Professor, Director, University of Houston Immigration Clinic

Recently, CNN commentator and British citizen Piers Morgan has been the subject of a White House petition to deport him. The cascade of petitioners, now numbering more than 100,000, is troubling. A person’s exercise of free speech is not something that should lead to a threat of deportation. More than that, a non-citizen may not be deported based merely upon the desires of 10,000, 100,000, or even a million angry petitioners. Deportation may only be based on some valid, legal basis.

As a non-citizen lawfully present in the U.S., Mr. Morgan is entitled to due process, a point which may surprise many. Due process means he has to be served with notice in a particular way and be advised of the ground of removal. He is entitled to present evidence, witnesses in his defense, and argue for relief from removal if any exist.

What does calling for someone’s “deportation” – even a deportation with no valid basis- say about us as a nation? The First Amendment protects even probing foreign journalists and especially dissenters. Calling for one’s expulsion at a time of tragedy is one way to discipline those who profess unpopular ideas. Focusing on a non-citizen’s opinions in especially pernicious because it does two things: it seeks to expel the offending person’s views from the marketplace of ideas, but also, more importantly, shifts discussion away from the truly important issues underlying the tragedy in Connecticut: gun control. There is no valid ground for deportation which exists against Mr. Morgan. It is interesting that the voices which have now coalesced in support of his deportation have succumbed to a false assumption: that the federal government can be persuaded to exercise its extraordinary power to rid the polity of someone who has said something controversial or at odds with a special-interest group. This assumption is unsound.

The exercise of the federal deportation power which is the exclusive province of Congress and the executive branch in such a manner would be tantamount to unlawful and discriminatory “selective prosecution.” In a famous case, Reno v. AADC, 525 U.S. 471 (1999), the Supreme Court has stated that although there may be no Constitutional right to bring a selective prosecution case in the immigration context, the door was left open to such a claim where the basis for the alleged discrimination is “outrageous.” In this case, to enforce the immigration laws against Mr. Morgan for the exercise of his free speech rights would be “outrageous” in the way conceived of by Justice Scalia in his opinion in Reno v. AADC.

It concerns me deeply that as a polity we can envision the use of deportation in such a way with little analysis about the misuse of such power and no appreciation of the effects that such a proposed use would have on other parts of our Constitution and the Bill of Rights. The First Amendment should not be trampled upon because the federal government has been imbued with other equally important powers, such as those over immigration and foreign affairs. To go down this road is dangerous and corrosive. While Mr. Morgan, a journalist and CNN celebrity, may not be fazed, all our rights are diminished if free speech can be subjected to the chilling effects of threatened deportation against those among us who espouse controversial or dissenting views.

UPDATE (Jan. 11): The White House responded to the petition to deport Piers Morgan by emphasizing his First Amendment rights to speak on gun control.

Orginally posted on ImmigrationProf Blog.

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