“If Someone Is Attending Speeches … Promoting the Violent Overthrow of Our Government, … They Should Be Deported or Put in Prison”

That’s what Sen. Rand Paul said on the Sean Hannity Show last week. More context, courtesy of ThinkProgress, which also has an audio excerpt:

I’m not for profiling people on the color of their skin, or on their religion, but I would take into account where they’ve been traveling and perhaps, you might have to indirectly take into account whether or not they’ve been going to radical political speeches by religious leaders. It wouldn’t be that they are Islamic. But if someone is attending speeches from someone who is promoting the violent overthrow of our government, that’s really an offense that we should be going after — they should be deported or put in prison.

Let me know, please, if there’s some broader context in the show that changes the meaning of what Sen. Paul was saying, or if Sen. Paul has spoken to clarify or correct his statements.

Incidentally, it’s possible that deporting a noncitizen for attending certain speeches may be constitutionally permissible (though of course that doesn’t resolve the question whether it would be right), depending on how you read Harisiades v. Shaughnessy (1952). Harisiades speaks about nearly unlimited Congressional power over deportation, but that language is in the section dealing with the argument that the deportation of Harisiades violated the Due Process Clause. The First Amendment discussion rested on the conclusion that active membership in the Communist Party was substantively unprotected by the First Amendment — both for citizens and noncitizens — which was the law during that era (see Dennis v. United States (1951)). For the view that Harisiades doesn’t generally let the government act based on otherwise protected speech by aliens, see American-Arab Anti-Discrim. Comm. v. Reno, 70 F.3d 1045 (9th Cir. 1995), rev’d on other grounds, 525 U.S. 471 (1999); Parcham v. INS, 769 F.2d 1001 (4th Cir. 1985). For the view that Harisiades gives the government nearly unlimited immigration power over aliens, see Price v. INS, 941 F.2d 878 (9th Cir. 1991). The Court’s most recent discussion of the matter, in Reno v. American-Arab Anti-Discrim. Comm., 525 U.S. 471, 488-91 (1999), didn’t resolve the question: The Court there held only that if the government tries to deport someone who has violated immigration law (for instance, by overstaying his visa, or working without authorization), the person may not challenge the deportation on the grounds that he was selectively prosecuted based on his otherwise protected speech; outside the immigration context, such selective prosecution based on protected speech is generally unconstitutional. See Wayte v. United States, 470 U.S. 598 (1985).

But it’s clear that it would be unconstitutional to criminally prosecuting someone (which is what I assume Sen. Paul meant by “put in prison”) — whether citizen or alien, see Bridges v. Wixon, 326 U.S. 135, 148 (1945) — for attending speeches promoting the violent overthrow of our government. Even Dennis, which was the high-water mark of the restriction of Communist advocacy in the 1950s, didn’t go so far as to allow punishing someone simply for attending such a speech.

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