The American Association of University Professors (AAUP) is extremely gratified by Judge O’Toole’s decision Monday in the litigation involving South African scholar Adam Habib. In that case, the government revoked Professor Habib’s visa, refused to act on his re-application, and ultimately rejected it entirely on the grounds that he had “engaged in terrorism,” without providing any evidence supporting that claim (or even explaining the basis for the claim).
Judge O’Toole’s decision states in no uncertain terms that where constitutional interests of Americans are concerned, the government must provide some justification for its exclusion of a foreign citizen. The opinion is enormously encouraging for those of us who have challenged Professor Habib’s exclusion by asserting that it violates our First Amendment right to talk, meet, and engage with speakers holding a variety of views. And as the foremost U.S. organization defending faculty members’ rights of research and speech, we are hopeful that this decision will begin to reverse the country’s self-imposed isolation from the opinions of others.
The government asserted in this case that while the court may review a visa denial if the government providesa reason for its decision, where the government provides no justification at all for its actions, the decision should be entirely shielded from judicial scrutiny. In his opinion, Judge O’Toole highlights the absurdity of the government’s argument, observing, “The incentive [that the government’s] proposed interpretation would give the government would be perverse: better to give no reason for a denial so that it would be unreviewable than to give a reason and be second-guessed by a court.”
We agree, and are pleased by Judge O’Toole’s recognition that the government’s position is untenable. The ability to interact face-to-facewith foreign scholars is vitally important to the global exchange of ideas. Both Professor Habib and Tariq Ramadan, one of Europe’s leading scholars of Islam (also excluded from this country on ideological grounds, and also the subject of a lawsuit against the government by the AAUP, the ACLU, and other organizations), have been unable to physically attend our scholarly conferences. Instead, they have been forced to speak to our members remotely — hardly an adequate substitute for joining us in person and engaging in the informal conversations and debates that are at least as valuable as formal presentations. Speech is not free when the government gets to choose the means of communication. We look forward to welcoming Professors Habib and Ramadan in person one day soon.