Ruling Gives Aliens Equal Speech Rights

In what civil rights lawyers hailed as a historic free speech decision, a federal judge ruled Thursday that alien residents have the same broad free speech rights as citizens and declared unconstitutional key provisions of the McCarthy-Era McCarran-Walter Act, which allow the government to deport aliens for their political views.

U.S. District Judge Stephen V. Wilson in Los Angles overturned several highly controversial provisions of the 36-year-old McCarran-Walter law and declared unconstitutional amendments recently written by Congress that specifically allowed the deportation of members of the Palestine Liberation Organization.

Deportation Case

The emotionally charged case grew out of the federal government’s 2-year-old effort to use the McCarran-Walter Act to deport seven Palestinians traveling on Jordanian passports and a Kenyan, who were originally accused of belonging to a Marxist faction of the PLO.

The eight defendants, who were arrested in January, 1986, and imprisoned for two weeks, have consistently denied belonging to the faction, the Popular Front for the Liberation of Palestine.

Wilson underscored that the issues cut to the core of the First Amendment.

“In this case, the government is trying to stifle certain ideas from entering our society from certain aliens through its immigration power,” Wilson said. “Our society, however, was built on the premise that only through the free flow of ideas can our nation grow and prosper.”

Congress in the last two years has made a number of changes in the law, and Wilson said, his decision in no way blocked Washington from using other laws to deal with national security matters.

“Our decision today . . . will not significantly deplete the government’s arsenal in combatting terrorism,” he said.

Michael P. Lindemann, the Justice Department attorney leading the deportation efforts who unsuccessfully argued that Wilson should take no action, said the government will appeal. He had no further comment.

Lindemann had argued that “the Supreme Court has recognized time and time again” that aliens did not have the same rights in proceedings to deport them or to keep them out of the country. Additionally, he declared that Congress “has the power to control immigration” and could therefore pass restrictive laws in the public interest.

Lawyers representing the plaintiffs, which included the American-Arab Anti-Discrimination Committee, said Wilson’s decision went well beyond their clients’ case.

Important Case

“I don’t think we could overstate the importance of this case for all people in America--whether immigrants or citizens,” said Paul Hoffman, legal director of the American Civil Liberties Union’s Los Angeles office. But he and co-counsel David Cole of the New York-based Center for Constitutional Rights could not say for sure whether the deportation proceeding, scheduled for hearings in March, would be delayed until appeals are exhausted.

Attorney Floyd Abrams, who represented the New York Times in 1971 in the Pentagon Papers case, agreed that the case was of major importance.

“I think it is a landmark decision,” Abrams said in a telephone interview from New York. He recalled that in vetoing the McCarran-Walter Act in 1952, President Harry S. Truman said it “was one of the most un-American laws ever adopted.” Congress then overrode Truman’s veto.

“It’s taken almost 40 years, and now a court says the same thing,” Abrams said. “It’s an enormous step toward ridding us of provisions that are extremely difficult to square with the First Amendment.”

Wilson, a Reagan Administration appointee, said the case came down to “a direct conflict” between Congress’s jurisdiction over immigration matters and “aliens’ rights to freedom of speech and association in the United States.”

McCarran-Walter, the judge said, was “substantially over-broad . . . it could as easily be applied to prohibit an alien from wearing a PFLP button, attending a PFLP lecture, distributing a PFLP newspaper or teaching a PFLP viewpoint as it could be applied to preventing advocacy of imminent lawless violence.”

Specifically, Wilson overturned several provisions allowing deportation of aliens who advocate world communism, totalitarian dictatorship or the unlawful destruction of property.

The McCarran-Walter Act was passed in 1952 at a time when Sen. Joseph R. McCarthy (R-Wis.) was stirring up a wave of anti-communist sentiment. Among other things, the act, incorporated into the nation’s immigration laws, permitted the exclusion or deportation of aliens for writing, publishing or distributing material advocating the doctrines of world communism or engaging in activities that threaten the national security.

Although these provisions have been used for years to deny visas to important writers and other notable figures because of their political views, it was shunned as a deportation device until the 1986 arrests of the eight Los Angeles-area aliens.

“From the time of McCarran-Walter’s inception until the present Reagan Administration, not a single attorney general, until Edwin Meese, has been willing to use this law to deport aliens,” observed Dan Stormer of Los Angeles, the lead attorney in the aliens’ fight to avoid deportation.

Leading the congressional fight against McCarran-Walter has been Rep. Barney Frank (D-Mass.). In 1984, the Reagan Administration won a fight against a Frank bill that would have shifted the focus of McCarran-Walter from considering ideology and association to actual threats to national security.

Then, in 1987, Congress, in the Foreign Relations Authorization Act, said that all aliens in the United States have the same First Amendment rights as citizens. It also said that simply because an individual advocated unpopular political views or associated with unpopular people, it was not grounds to keep aliens from visiting the United States.

Then, over a 2-year span, Congress also created controversial changes to that liberalizing legislation, saying members of the PLO would not be granted First Amendment rights. Then, the lawmakers further modified the act so that it applied only to resident aliens.

This year, Frank pushed a measure to further liberalize the law, effectively gutting McCarran-Walter’s political provisions, but the bill died after clearing the House Judiciary Committee.

Beginning with their arrests almost two years ago during dawn sweeps in the Los Angeles area, the eight aliens were immediately placed in federal prison. They were accused of belonging to the left-wing PFLP and advocating world communism. Local immigration attorneys, basing much of their testimony in Immigration Court on FBI investigative work, said all eight represented “a risk to national security.”

The allegations were rooted in an FBI study that found the PLO faction had for years been “one of the most ruthless terrorist groups of modern times” and that its reach was international in scope.

Immediately, the case drew charges by Arab groups that Washington was trampling on civil rights because of the defendants’ unpopular political views.

Shortly afterward, the government changed the charges. Two of the individuals whom the government alleged were the group’s PFLP leaders--Khader Hamide, 34, of Los Angeles and Michel Shehadeh, 32, of Long Beach--were re-charged under McCarran-Walter with advocating “the unlawful damage, injury or destruction of property.”

This was one of the sections Wilson declared unconstitutional Thursday.

Because of delays due to legal maneuvering, the Justice Department has yet to present its evidence against Hamide and Shehadeh in Immigration Court.

The six others, including Hamide’s Kenyan-born wife, Julie Mungai, 30, were charged with lesser visa violations, which also could lead to deportation.

Last month, two of the six successfully passed their amnesty interviews, prompting the government to dismiss them from the case.

Thursday’s decision, then, was brought on behalf of the other defendants and the 23,000-member American-Arab Anti-Discrimination Committee.

Civil rights lawyers successfully argued that even though the other six were not currently accused of McCarran-Walter violations, the fact that McCarran-Walter’s political advocacy limitations were still law had a chilling effect on their clients’ ability to freely express their views.

Hamide, Shehadeh and some of the other defendants were in the courtroom as Wilson read his decision. Afterward, an elated Hamide called Wilson’s decision “courageous.”

“Now we can speak our minds. I couldn’t an hour ago,” Hamide said. “It’s a victory for our community and for all immigrant communities in the United States.”