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Co-founder of BDS movement denied entry to US ahead of campus speaking events
Last week, Palestinian activist and co-founder of the Boycott, Divestment and Sanctions Movement Omar Barghouti was stopped and at Israel鈥檚 Ben Gurion International Airport that he would not be allowed to enter the United States, where he was scheduled to make several speaking appearances at U.S. campuses.
According to , Barghouti was told 鈥渉e wouldn't be flying despite holding valid travel documents鈥 and that 鈥淯.S. immigration officials had ordered the U.S. consul in Tel Aviv to deny him permission to enter the United States.鈥 NPR further that a State Department official commented: 鈥淰isa records are confidential under U.S. law; therefore, we cannot discuss the details of individual visa cases.鈥
Barghouti, who maintains that he possesses the necessary travel documents as well as a visa that is valid until 2021, believes the ban is a direct result of his BDS advocacy. He Al Jazeera that the 鈥淯S entry ban against me . . . is ideologically and politically motivated[.]鈥
Barghouti鈥檚 allegation is concerning on its face, but especially so given that Barghouti was visiting the U.S. in part to at college campuses including Harvard and .
As FIREhas expressed repeatedly, universities that limit their community members鈥 speaker invitations to those most likely to find a sympathetic audience do a disservice to their students鈥 ability to engage with controversial ideas and their right to free expression. That principle becomes no less true if the U.S. government, rather than administrators, is effectively determining which speakers cannot be invited to U.S. campuses.
Advocacy for or against BDS is political expression protected by the First Amendment, and government actors may not penalize that expression when made by any person 鈥 whether citizen 鈥 within the United States. (FIREtakes no position on BDS, except to the extent that it or its opponents might endanger academic freedom.)
The Supreme Court, however, has previously authorized immigration authorities to bar, due to ideological objections, would-be foreign speakers from visiting the United States for the purpose of speaking on its campuses. In Kleindienst v. Mandel, the Supreme Court weighed whether the State Department鈥檚 rejection of Ernest Mandel, a Marxist economist and activist who had been invited to speak at Stanford, Princeton, Columbia, and other universities in 1969, violated the First Amendment rights of those who wished to engage with Mandel鈥檚 views. The Supreme Court reversed the district court鈥檚 ruling that American citizens have a First Amendment right to hear and respond to Mandel鈥檚 views, writing that 鈥淸w]hat First Amendment or other grounds may be available for attacking exercise of discretion for which no justification whatsoever is advanced is a question we neither address nor decide in this case.鈥
In Justice Thurgood Marshall鈥檚 dissent, joined by Justice William Brennan, he wrote that he was 鈥渟tunned to learn that a country with our proud heritage has refused Dr. Mandel temporary admission鈥 and that he was 鈥渃onvinced that Americans cannot be denied the opportunity to hear Dr. Mandel鈥檚 views in person because their Government disapproves of his ideas.鈥
Even if immigration authorities can bar Barghouti鈥檚 entry without infringing on the First Amendment, that does not immunize their decision to do so from criticism. If Barghouti has been denied entry on the basis of his BDS advocacy, then this incident represents a disturbing effort to punish political speech. Immigration restrictions should not be used as a cudgel to decide which non-U.S. speakers are free to express themselves on U.S. campuses. Further, the federal government, under President Donald Trump鈥檚 executive order, has stated its intent 鈥渢o promote free and open debate on college and university campuses.鈥
Barghouti鈥檚 situation is seemingly similar to that of American student Lara Alqasem, who was temporarily in Oct. 2018 after flying to Israel on a student visa over suspicions that she violated Israel鈥檚 ban on visitors who promote BDS activism. Alqasem planned to study at the Hebrew University of Jerusalem but was placed in custody over her leadership role in the University of Florida鈥檚 FIREfor Justice in Palestine chapter.
As I in Alqasem鈥檚 case, 鈥淒efenders of Israel鈥檚 ban have been quick to point out that the country has broad authority to choose who crosses its borders. That is true. But the Venn diagram of what is lawful and what is just is rarely a circle.鈥
Fortunately, Israel鈥檚 Supreme Court in Alqasem鈥檚 favor in mid-October, writing that 鈥淸t]he inevitable impression is that invalidating the visa given to her was due to the political opinions she holds鈥 and 鈥淸i]f this is truly the case, then we are talking about an extreme and dangerous step, which could lead to the crumbling of the pillars upon which democracy in Israel stands.鈥
Whether Barghouti will similarly succeed and ultimately be allowed in the U.S. remains to be seen.
In his dissent in Kleindienst v. Mandel, Justice William Douglas asked:
Can the Attorney General under the broad discretion entrusted in him decide that one who maintains that the earth is round can be excluded?
that no one who believes in the Darwinian theory shall be admitted?
that those who promote a Rule of Law to settle international differences rather than a Rule of Force may be barred?
that a genetic biologist who lectures on the way to create life by one sex alone is beyond the pale?
[ . . . ]
I put the issue that bluntly because national security is not involved. Nor is the infiltration of saboteurs. The Attorney General stands astride our international terminals that bring people here to bar those whose ideas are not acceptable to him.
Today, free speech advocates and supporters of campus free expression should ask: Can BDS advocates or other controversial political activists outside the U.S. expect to find themselves on a list of disfavored views?
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