Ron DeSantis’ Call to Deport Foreign Students Over Anti-Israel Views Is Un-American

Gov. Ron DeSantis (R-FL) has an ambivalent relationship with the First Amendment. One of his signature legislative efforts, the so-called “Stop WOKE Act,” is currently enjoined by a federal court on First Amendment grounds, and First Amendment litigation against his attempt to retaliate against Disney for criticizing his parental rights legislation continues.

But it doesn’t appear that DeSantis has learned his lesson, because he just proposed something else that’s not just a likely violation of the First Amendment—it’s downright un-American.

“When the blood wasn’t even dry on the Israelis who had been massacred, you had people in America going out and protesting in favor of Hamas,” DeSantis recently said. “Some of these people are not U.S. citizens, so as president, if you're on a student visa and you’re a foreigner and you’re out there celebrating terrorism, I’m canceling your visa and I’m sending you home.”

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The 2024 GOP presidential candidate was clearly referencing the protests that erupted in recent weeks everywhere from Times Square to many college campuses in support of the Palestinian cause. In some cases, the people attending these rallies express sympathy and solidarity with the plight of the Palestinian people, living under decades of Israeli occupation. But, in other cases, they praised Hamas terrorists who killed innocent Israeli civilians as “freedom fighters” and otherwise celebrated the violence against Israelis.

It should go without saying that this kind of glorification of violence is evil and contemptible. Yet it’s still unconstitutional, wrong, and short-sighted for the government to start targeting people for deportation because they say offensive and vile things.

“The Supreme Court has said since 1945 that, at least with respect to people who are within the borders of the United States lawfully, we all enjoy First Amendment protections,” Joe Cohn, Legislative and Policy Director at the nonpartisan Foundation for Individual Rights and Expression (FIRE), told me. “And that’s true whether we’re a citizen… or on a more temporary visa.”

Cohn referenced the 1945 Supreme Court case, Bridges v. Wixon, which concerned the attempt to deport an Australian who had lawfully immigrated to the U.S. over his alleged support for the Communist Party. In that case, while ruling in favor of the Australian, the Supreme Court declared, “Freedom of speech and of press is accorded aliens [immigrants] residing in this country.” In another 1953 case, the Supreme Court reaffirmed this holding that “once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders.”

There are some cases where the Supreme Court allowed immigrants to be deported because they were affiliated with groups that actively sought to violently overthrow the U.S. government. But that’s a fundamentally different situation than deporting someone for speech generically supporting violent acts overseas. That case also came before some relevant landmark decisions on what constitutes actual incitement to violence, and it’s not clear if the case would be decided the same way today.

So, legal immigrants have First Amendment rights. But what about these protests? The next question, according to Cohn, “is the speech protected by the First Amendment?”

Whether it’s students praising Hamas’ past violent attacks targeting civilians or even chants like “from the river to the sea, Palestine will be free” that some interpret as calls for genocide against Israelis, most of the speech “promoting terrorism” that DeSantis is referencing, vile as it may be, doesn’t meet the extremely narrow First Amendment exceptions for incitement of violence or true threats.

So, like it or not, it’s protected free speech.

If legal immigrants have free speech rights and their speech “celebrating terrorism” is protected speech, then they cannot face punishment for it from the government. If they do, that’s a textbook example of retaliation for protected speech, a well-established category of First Amendment violation.

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When presented with this criticism, DeSantis’ defenders argue that “there’s no right to a visa.”

“It’s a privilege that can be revoked,” DeSantis’ press secretary Jeremy Redfern tweeted. “They have a right to free speech. They don’t have a right to be in the United States.”

It’s true that no one has a right to a visa. But no one has an inherent right to food stamps, either. Yet it’d still be unconstitutional for the government to revoke someone’s EBT card because it disliked their anti-Israel activism. It’s the principle of government retaliation that’s at stake here, not a question of whether these students have a “right” to be in America. They, like anyone protected by the First Amendment, have the right to not face government punishment for their words.

DeSantis’ defenders also point to federal law that explicitly allows the government to deny a potential visa to a foreign applicant who “endorses or espouses terrorist activity.” It is true that current federal law and court precedents recognize the government’s ability to deny people who apply for a visa based on their viewpoints. But that’s a fundamentally different situation than revoking an immigrant’s lawfully-awarded visa once they are here in the U.S. because of their political expression.

"Once a person has a visa and is here, the Supreme Court has said that they cannot be removed in retaliation for their exercise of the constitutional right to free speech," Cohn told me. "The legal analysis might be different when someone is applying for a visa, but there is no question that the First Amendment protects all people lawfully within our borders from viewpoint-based discrimination."

Basically, applicants overseas don’t necessarily have full First Amendment rights, according to some of the current Supreme Court precedent. But once they are here lawfully, they do—meaning that, after that point, it’s unconstitutional to revoke their visa in retaliation for their protected speech. (They could certainly be deported for materially supporting or recruiting for a recognized terrorist group like Hamas, but simply praising their cause or actions is a different story).

If DeSantis actually cares about free speech, then he shouldn’t go down this path, no matter how vile pro-Hamas campus demonstrations may be.

Americans have always prided ourselves on the fact that we might disagree with what you have to say, but we’ll defend your right to say it to the death. That was what prompted the ACLU to famously defend the rights of literal Nazis to march through Skokie, Illinois, where many Holocaust survivors lived, something many on the Right regularly point to when making their own free speech arguments. As a matter of intellectual consistency, that free speech ethos can’t suddenly go out the window when it comes to college students saying crazy shit about Israel.

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Plus, you always have to ask yourself if you’d still want the government to have that power when the other “side” is in charge. Would DeSantis’ defenders really be okay with a future progressive president seeking to deport Israeli or other foreign students who call to “level Gaza?” What about Israeli or other foreign students defending the actions of the Israeli government—something a President AOC certainly might consider “supporting genocide,” “endorsing apartheid,” or, yes, “ supporting terrorism?”

The government either has the right to deport students because of their viewpoints or it doesn’t.

With war, bloodshed, and chaos blaring at us from the headlines every day, emotions and passions are running higher in our political conversation than at any time in recent history. But moments like these are not the time to compromise on our free speech principles. On the contrary, the times when it’s most difficult to defend civil liberties are the very times that defense is needed the most.

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