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St. Thomas Law Review

First Page

205

Document Type

Article

Abstract

This paper will argue that the new exclusion provision violates the First Amendment right to receive information and ideas by "blacklisting" foreigners who express disfavored political views. The Bush Administration has routinely utilized its powers to stifle dissent and to manipulate the public debate over political issues. This signifies a reemergence of the system of ideological exclusion prevalent during the Cold War. By preventing foreign scholars, poets, artists, musicians, and others with unique talents and perspectives from entering our borders, the government restricts public access to such views and information in contravention of the First Amendment. First, this paper will set forth a brief history of ideological exclusions. It will then provide a synopsis of recent cases in which foreigners were not permitted to enter the United States to accept university teaching positions. Next, this paper will argue that the new exclusion provision violates the constitutional right to receive information and ideas from foreigners in person. The provision bars protected speech on the basis of its content, in violation of the First Amendment. Government authority to proscribe speech in the name of national security is by no means absolute and is unable to withstand strict scrutiny in this case because lesser restrictive alternatives exist. This paper will then argue that the new exclusion provision fails the Mandel standard articulated by the Supreme Court in Kleindienst v. Mandel. Under Mandel, courts will defer to the State Department's decision to exclude an alien based on any facially legitimate and bona fide reason. However, excluding an alien solely on the basis of the content of his speech is not a legitimate reason for exclusion. Later, this paper will argue that the new exclusion provision is unconstitutionally vague because it burdens an extraordinary amount of protected speech. The provision allows the Secretary of State too much discretion to silence dissenting views and could allow the administration to manipulate political debate by barring individuals who espouse certain points of view from entering our borders. As a consequence, the Patriot Act could deter universities from inviting to speak or offering faculty positions to foreign scholars with intriguing and valuable ideas based upon a concern that some statement made by the scholar in the past would be categorized as an "irresponsible expression of opinion." Finally, this paper will posit that immigration policy in the educational context requires a balancing between two competing aims: (i) facilitating academic freedom and (ii) judicial deference to legislative judgment in immigration decision. This paper will examine the effect on universities where foreign scholars are barred from entry. This paper will conclude that the First Amendment protects the addressees' right to meet face-to-face, discuss, debate, and interact with foreign scholars, and that where no compelling interest exists to exclude such activities or less restrictive alternatives exist, the government should not be allowed to exclude these foreign scholars.

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