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14 Geo. Immigr. L.J. 313 (1999-2000)
Terrorism, Selective Deportation and the First Amendment after Reno v. AADC

handle is hein.journals/geoimlj14 and id is 323 raw text is: TERRORISM, SELECTIVE DEPORTATION AND THE FIRST AMENDMENT AFTER RENO V AADC GERALD L. NEUMAN* I. INTRODUCTION In 1995, the Ninth Circuit issued a landmark decision holding that the First Amendment prohibited the federal government from singling aliens out for deportation on the basis of political activities for which the First Amendment would preclude the criminal punishment of citizens.1 In 1999, in Reno v. American-Arab Anti-Discrimination Committee (AADC ),2 the Supreme Court ordered dismissal of the litigation underlying the Ninth Circuit's decision on jurisdictional grounds. In Part III of the majority opinion, Justice Scalia stated that the First Amendment does not guarantee a defense of selective prosecution in deportation proceedings, or at least, that it does not guarantee such a defense in circumstances like those of the case at bar.3 Whether the Supreme Court's decision is also a landmark depends on a number of factors, including whether Part III of the opinion is merely dictum,4 and if not, what the scope and rationale of its holding might be. Despite all the layers of technicality and the broader implications, AADC was a highly political case about terrorism and counter-terrorism. From a perspective sympathetic to the plaintiffs, it involved the question of govern- ment overreaction trampling on the First Amendment rights of U.S. residents who have engaged in innocent association with a political movement that is based in a foreign country and that happens also to engage in political violence against innocent civilians in pursuit of some of its goals. From the government's perspective, it involved the effort to deny a terrorist organiza- tion, inimical to U.S. foreign policy goals, the use of U.S. territory for recruitment and fundraising. The organization in question was the Popular * Herbert Wechsler Professor of Federal Jurisprudence, Columbia Law School. I would like to express my gratitude to Khaled Abou El Fadl, Fiona Adamson, Ed Baker, William Banks and Vincent Blasi, and to David Cole, David Martin and the other participants in the Workshop on the Supreme Court and Immigration and Refugee Law, for comments, suggestions and criticisms relating to this article. Responsibility for errors is entirely mine. 1. American-Arab Anti-Discrimination Comm. (AADC) v. Reno, 70 F.3d 1045 (9th Cir. 1995). Admittedly, this decision was only a landmark if it did not restate well-settled prior law. But I believe it did not. Some have argued that the holding described above was already implied in Harisiades v. Shaugh- nessy, 342 U.S. 580 (1952). Yet Harisiades is at best ambiguous on this point. Justice Murphy persuasively argued for this principle in his concurrence in Bridges v. Wixon, 326 U.S. 135, 161-63 (1945), but that was only a concurrence. 2. 119 S. Ct. 936 (1999). 3. Id. at 945. 4. See id. at 956 & n.5 (Souter, J., dissenting) (arguing that Part III of the opinion is dictum).

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