The First Amendment is the crown jewel of the United States Constitution, which is in danger of being pulled out of the crown. The Amendment safeguards a range of liberties, including religious freedom, the right to assemble, and the right to petition the government. However, the words “Congress shall make no law … abridging the freedom of speech” resonate with a unique aura, and the federal judiciary has steadfastly upheld their sanctity, yielding little ground to the Executive branch — the perennial antagonist of free speech. Regardless of the form of government, the executive branch in every political system is the most hostile to free speech. Every Executive, including US presidents, craves the latitude to restrict speech to advance their ideology, whether authoritarian, theocratic, nationalist, apartheid or any other.
President Trump denies free speech to international students studying at American universities and colleges, making the most unacceptable argument that international students are not entitled to the same range of free speech as national students. Furthermore, the President and his people plan to deport international students, even green card holders, who exercise free speech at par with students who are US nationals.
There is no lawful basis to discriminate in matters of free speech against international students, regardless of their visa status. Anyone, including international students, may be deported for violating visa status. Free speech exercised at par with national students cannot be a lawful ground for deporting international students far away from their homes, some in the middle of their studies and some who had no clue that the exercise of free speech at par with national students is a ground for their removal from the university and the US.
Let me underscore the principle of parity, which holds that international students are entitled to the same free speech protections as their national counterparts — no greater, no lesser. Denying this equal standing leads to indefensible academic and personal discrimination, unequal educational opportunities, and overt prejudice, echoing the dark days of American apartheid with its separate drinking fountains.
In the early 1980s, I introduced a course on international human rights against some resistance to the J.D. curriculum at my law school, a course I took as a graduate student at New York University. Over the decades, I taught that course to national and international students, even abroad, and it did not once occur to me that international students cannot exercise the same level of free speech in the classroom as national students. It did not occur to me that international students cannot write papers defending unpopular causes like domestic students.
The same parity applies to the manifestation of free speech in protests on campus. If national students can defend the liberation rights of a national or international group, so can international students. The university must treat all students without discrimination of national origin.
The parity argument is not about unrestricted free speech. In fact, my students resisted my suggestion that there should be a hate speech exception to the First Amendment. They wrote papers to defend vigorous free speech. Some of them are judges and prosecutors. The argument is that a university, much less a law school or any other school, cannot discriminate against international students regarding free speech.
How many years have I taught Article 2 of the Universal Declaration of Human Rights, which states: “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs (emphasis added). Does the Declaration not protect the parity principle in free speech?
How many years have I taught Article 2 of the International Covenant on Civil and Political Rights, which states: “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” (emphasis added). Does the Covenant not protect the parity principle in free speech?
I am confident that federal judges will rise to the occasion to defend free speech, protecting international students on par with national students. The judges need not resort to international human rights treaties to defend the parity principle. There is enough under the First Amendment to safeguard the free speech of international students. The Executive branch should know that international students bring educational, cultural, linguistic, and religious diversity to the classroom and deserve respectful treatment based on equity and inclusion.
L. Ali Khan is the founder of Legal Scholar Academy and an Emeritus Professor of Law at the Washburn University School of Law in Topeka, Kansas. He has written numerous scholarly articles and commentaries on international law. In addition, he has regularly contributed to JURIST since 2001. He welcomes comments at legal.scholar.academy@gmail.com
