Ideological Exclusion & Deportation

Kelly Therese Pollock  0:00  
This is Unsung History, the podcast where we discuss people and events in American history that haven't always received a lot of attention. I'm your host, Kelly Therese Pollock. I'll start each episode with a brief introduction to the topic, and then talk to someone who knows a lot more than I do. Be sure to subscribe to Unsung History on your favorite podcasting app so you never miss an episode, and please tell your friends, family, neighbors, colleagues, maybe even strangers, to listen too. In the very early United States, it was the states and not the federal government, that controlled borders, allowing or disallowing foreigners from entering. In March of 1790, just under a year after George Washington was inaugurated for the first time, Congress passed an act to establish a uniform rule of naturalization. The new nation was eager to grow its population and made it very easy to become a citizen, at least for free white people, who only had to live in the United States for two years and apply to court, "making proof to the satisfaction of such court that he is a person of good character, and taking the oath or affirmation prescribed by law to support the Constitution of the United States" The doors to citizenship would not stay so wide open for long, though. In 1795, they increased the residency requirement for naturalization to five years; and would-be citizens had to declare their intention to naturalize three years in advance. In 1798, when the United States was on the brink of war with France, Congress increased the residency requirement to 14 years and the notice of intention to five years. That was only one of the laws Congress passed in 1798 that affected immigrants. They also authorized the president to deport immigrants in the name of national security. The Alien Friends Act said that the President could,  "order all such aliens as he shall judge dangerous to the peace and safety of the United States, or shall have reasonable grounds to suspect are concerned in any treasonable or secret machinations against the government thereof, to deport out of the territory of the United States." That act sunsetted after two years. During the time it was in effect, no deportations were ordered, but some were considered, and some immigrants self deported, fearing that they would be removed if they stayed in the country. Another act from that year, the Alien Enemies Act, is still in effect today. The act, which can be used, "whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted or threatened against the territory of the United States by any foreign nation or government," states that, "All natives, citizens, denizens or subjects of the hostile nation or government, being of the age of 14 years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured and removed as alien enemies." The act originally referred only to male immigrants, but was revised in 1918 to remove the gendered specification. It was the Alien Enemies Act that Franklin Roosevelt invoked to justify the internment of Japanese Americans during World War II, and it is the Alien Enemies Act that Donald Trump invoked to deport Venezuelans to El Salvador, claiming an invasion of the United States by the Venezuelan gang Tren de Aragua. The final of the four related laws passed in the summer of 1798 was the Sedition Act, which, in addition to setting punishments for people who conspired against the government or provoked insurrection, also made it illegal to, "write, print, utter or publish any false, scandalous and malicious writing or writings against the government of the United States with intent to defame the said government or to bring them into contempt or disrepute or to excite against them the hatred of the good people of the United States." Less than seven years after the ratification of the Bill of Rights, the protections of the First Amendment were under threat. Although the Supreme Court never weighed in on the Sedition Act, the public did, and its unpopularity was a factor in John Adams losing the presidential election of 1800 to Thomas Jefferson. The Sedition Act expired the day before Jefferson took the oath of office for the first time. With the expiration of the Sedition Act, American citizens once again had the freedom to speak out against the government, but immigrants to the United States and those who wanted to immigrate were often not included in that freedom. During the Adams administration, the concern driving the restrictive laws was a looming war with France. In the late 19th and early 20th centuries, that concern turned to the threat of anarchy. On May 4, 1886, anarchists called for a rally at Haymarket Square in Chicago after six unarmed, striking workers were killed by police the day before. During the May 4 rally, an unknown person threw a bomb that resulted in the death of seven policemen and injured many other people. When the policemen fired into the crowd, they killed four rioters. To this day, no one knows who threw the bomb, but eight men, some of whom weren't even at the rally, were convicted on charges of conspiracy. Of those eight, six were born outside the United States, five in Germany and one in England. Four of the eight men were hanged and one died by suicide, although Illinois Governor John Peter Altgeld pardoned the remaining three in 1893, and called the trial a miscarriage of justice. The event stoked fears of anarchy and of immigrants. Not everyone was frightened, though. One immigrant, Emma Goldman, was inspired to become an anarchist while watching the persecution of the Haymarket Eight. Goldman would become one of the most influential anarchists of her day. So much so that, as we will discuss in today's interview, the United States Government found a way to revoke her citizenship and eventually to deport her, just one of the many immigrants who have been deported or excluded from the United States for their ideological stances. Joining me in this episode is Dr. Julia Rose Kraut, legal historian and author of, "Threat of Dissent: A History of Ideological Exclusion and Deportation in the United States."

Kelly Therese Pollock  9:29  
Hi Julia, thanks so much for joining me today.

Julia Rose Kraut  9:33  
Hi Kelly, I'm delighted to join you.

Kelly Therese Pollock  9:35  
I would like to start by asking a little bit about how you got started on this work on looking at ideological exclusion and deportation.

Julia Rose Kraut  9:47  
Well, I can actually trace the origin of this project back 25 years to when I was an undergraduate student at Columbia University. I was a history major, and I had just started looking at the suppression of anarchists after the assassination of President McKinley in 1901. And I was looking at the laws passed. I was looking at the effect on free speech, and this is coming before World War I, and a lot of the free speech decisions that were coming out of that kind of the modern Free Speech Movement. So this is kind of a very intriguing period before that, and I stumbled upon one of the methods to suppress anarchists, which was the Alien Immigration Act of 1903, which is a was a federal law that barred anarchists from the United States, foreign anarchists, and also authorized their deportation. And I started to become very intrigued by the passage of this law, the use of this law, the Supreme Court decision that came out of the challenge to this law. And I kind of kept at it, and I ended up writing a senior thesis about the suppression of anarchists, including this Alien Immigration Act. And I was fascinated by it. Went off to law school, and this was during the very early years of the war on terror. So we had September 11, and in these early years, and I discovered that there was a number of scholars who were being excluded from the United States, who were getting their visas denied, and a lot of the legal precedent that I had been looking at through my initial research was being used to both uphold their visa denials, but also other precedent was used to challenge the visa denials, and what was, what this is called, was ideological exclusion. And I began looking for a work, a book, something that was going to address the history of ideological exclusion, and I couldn't find one. And the more I started digging, the more research I began to conduct, I realized that there was no book that really focused on ideological exclusion and deportation, which was a very important issue, and I kind of sought to write that book. I ended up going back to graduate school, getting a PhD, and what the result is is, "Threat of Dissent: A History of Ideological Exclusion and Deportation in the United States," this book.

Kelly Therese Pollock  12:29  
In this time that in this is a long time that you've been working on this, what are the kinds of sources that you were drawing on, archives, or, as you mentioned, you have a JD, so I assume you're reading lots of legal cases and things, so you know what all goes into producing this work?

Julia Rose Kraut  12:47  
Yes, well, let me first actually define what I mean by ideological exclusion, deportation. What I mean by that is that it is the barring or expulsion of foreign, non citizens from the United States based on their political beliefs, expressions and associations. And so what I ended up doing is writing a long history, a long narrative of ideological exclusion and deportation, beginning with 1798, taking it through that war on anarchy, that early 20th century post McKinley assassination period, into World War I, the Red Scare and the Palmer Raids, into the 1930s Great Depression and anti communism, into McCarthyism and the Cold War, the Nixon administration in the 60s and into the 70s, the Reagan administration to the 1980s, and then finishing with the war on terror and the first Trump administration. So it is a long history where I trace the evolution and change over time of ideological exclusion deportation laws, and I look at those who are pushing for their passage and implementation, those who are challenging those laws, those who faced exclusion or deportation under those laws. And I look at legal decisions and legal cases, as well as going into lots of different types of sources to present a kind of a really intriguing narrative form of this history. And my argument is that the these ideological exclusion and deportation laws were passed and implemented, often in the name of national security, and used as a tool of political repression to suppress what I call the threat of dissent, and that includes criticism of politicians and policies, challenges to the status quo and capitalism, calls for a form of revolution and particular ideologies. And what is remarkable is the consistency over time of the use of these laws as well as the challenges to them, and how this unique intersection of immigration First Amendment law has allowed these laws to endure over time, and that you see those who are pushing for their passage and in implementation, arguing that ideological exclusion deportation is necessary to protect the United States. It's a national security threat and that you need to exclude or deport to protect the United States. And those who are challenging that law say you are undermining the values of the United States and free expression and association that are so central and vital to democracy and self government, that you're turning public officials into censors. You are chilling free speech and expression, hindering free exchange, academic freedom and scientific discovery through this, and you are also damaging the reputation of the United States at home and abroad, and you are turning the United States into what is now depicted as a fearful and insecure nation, rather than a confident and fearless nation. And so these arguments for and against ideological exclusion and deportation run throughout its history, and that's something that I also trace as I'm looking at these different moments where the United States has sought to bar or expel foreign, non citizens from the United States, based on their political expressions, beliefs and associations. Now, in terms of sources, I used a variety of sources, mostly primary sources, and so I went deep into the archives, looked at different kinds of papers and and correspondence. I also looked at statutes and I looked at variety of legal decisions and the archives of the Supreme Court, and I went back and I looked through the papers regarding particular decisions, including one case study that I present in chapter six, where I found that smoking gun document in the archives, and was able to shine a light and new perspective on a particular decision through that archival research.

Kelly Therese Pollock  17:31  
It should already be obvious to listeners, from just what you've said so far, but you know, I think there's this, people tend to be like, "Oh, this isn't who we are" when, when things happen. And so, you know, in the current Trump administration, when students are getting arrested and threat of deportation and all of that, you know, people are like, "Oh, this isn't who we are." Obviously, you trace this long history of how ideological exclusion deportation has happened, not just through parts of the 19th and 20th and 21st Century, but from the very founding. So I wonder if we could start there as sort of the setting the stage for what's to come with the 1798 Alien Friends Act. People have probably heard of the Sedition Act, which happened right around the same time. And this is not people who are distorting what it means to be, you know, have been part of the Constitution. These are writers of the Constitution, people who are there in the room voting on the Constitution, who are then passing some of these laws.

Julia Rose Kraut  18:35  
Yes, and it was very important for me to start this long narrative by going back to 1798. And you're right, which is typically when we hear about 1798 we see hear about the Alien and Sedition Acts as if they're either one act or they're, you know, two acts, and it's actually four. And so let's go back and talk a little bit about about these four acts, but also why they came about, and why it's relevant to the history of ideological exclusion and deportation. So what I did is, in the chapter one, I wanted to set the stage for my examination, and part of that was this very early period of division in the United States. So we're back in the 1790s, we have a divided nation on the brink of war. You're divided between the Federalists and the Democratic Republicans. And Britain and France are at war, and the Federalists are more sympathetic to Great Britain, and the Democratic Republicans are a little bit more sympathetic to France. And then, you know, our attempts at neutrality had failed, and we are now the United States on the brink of war with France, and you have a number of immigrants, particularly including Irish immigrants, who are supportive of the Democratic Republicans. And you have a lot of criticism and insults back and forth that's going on, and their main form of communication, newspapers. And so the result is, is that you have Federalists in the White House, or at least as president, because you also you have John Adams as president. You also have Thomas Jefferson as vice president, who's head of the Democratic Republicans. But you you also have Federalists in Congress and Federalists in Congress push for the passage of four acts which Federalist John Adams signs into law. And this is happening in June and July of 1798, and it includes a Naturalization Act which extends the residency requirement to become a citizen from five years to 14 years. You have the Alien Friends Act, which gives President Adams tremendous power to deport anyone who he deems a threat to peace and safety of the United States. So any, anyone he deems as a kind of would be a national security threat, and total absolute discretion to deport. You have the Alien Enemies Act, which declares that if you are at at war with a foreign nation, that you can deport those who are from that foreign nation. And then you also have the Sedition Act. And the Sedition Act, which people are more, maybe more familiar with, also, is a prosecute, criminally prosecutes those who show contempt for the United States and for for Congress and for the presidency. So this is, I mean, this is, this is something that is these acts are used in a particular way, kind of targeting foreigners, but also critics and dissenters. And it really is something as a tool to suppress criticism of Congress and of the Federalists and of President Adams and to suppress Democratic Republicans. And so we hear, typically, a lot about going after newspaper editors and using the Sedition Act. And then the main focus has been, well, John Adams never deported anyone under the Alien Friends Act. What I show is that that is true, but not for lack of trying, and that this is a very significant moment in not only the history of immigration, but in my examination of the history of ideological exclusion and deportation. And one of the things, one of these documents that I produced in the book, is a blank warrant for deportation, signed by John Adams, so you can actually see it for yourself, which is, he didn't use it, but he could have used it, and was prepared to use it. And so what I look at a little bit is that unfettered discretion and power held by the executive given by Congress to President John Adams to deport whomever he thinks he should. And there is a discussion in this chapter where I talk about particular individuals who he considered deporting and the interaction also with the Sedition Act, and whether to prosecute them under the Sedition Act or to deport them. I talked about the chilling effects. So even before you know there was even a consideration of deportation, once there's the act is is passed, there are those who flee or go into hiding. All right, so you don't have to deport anyone, just the threat of deportation is significant enough to have people leave the United States. You also have criticism about this unfettered discretion from the founder of the United States and framer of the Constitution, James Madison, and is very concerned about this use of the Alien Friends Act, and the fact that it undermines democratic ideals and the founding and separation of powers, and particularly checks and balances in terms of that there is there's no check on the president's power. So what you have here is also a very interesting situation where a power isn't used, but the fact that the power exists is significant. Now, what happens is that the Alien Friends Act and the Sedition Act are left to expire, and this situation, we don't go to war with France. John Adams loses re election to Thomas Jefferson, who also then, in a way, repeals this Naturalization Act and brings the residency back to it's original five years from 14, and then we have the Alien Enemies Act, which is sticks, sticks around, and was used later in subsequent wars, including World War I and World War II. But what's significant is that the chilling effect that we see during this period will continue to occur with ideological exclusion and deportation throughout history, and that's something that I show with the book. The debate over the power and discretion and how much discretion and checks on that power are. It's going to continue throughout the history of ideological exclusion, deportation, which I also show in the book over different periods of time, in terms of the questioning this discretion and trying to formulate different checks on that power. What you also see is the justification articulated by the Federalists, the legal justification for passage of the Alien Friends Act comes back, and I would remind you that in the Constitution, there's no explicit provision discussing immigration. People think there is, but there isn't. There's nothing. There's naturalization, but nothing on immigration explicitly. And so where do we get this power. Where does the federal government get its power? Because immigration was regulated by the states, so this is the first time we have immigration being regulated by the federal government in this way. And there is a justification through the Foreign Commerce Clause and migration clause, but most significantly, there's an articulation of the federal government has power to regulate as based on its national sovereignty and its right to set self preservation. And that argument is going to come back later on in the 19th century as one of the justifications for federal immigration regulation that's articulated in Chinese exclusion. And Chae Chan Ping that decision in 1889 upholding Chinese exclusion, and later on, Fong Yue Ting in 1893 upholding deportation. And so that articulation of the legal justification of sovereignty and self preservation, which we first see in support of passage of the Alien Friends Act, is going to now be incorporated into the justification to uphold immigration restriction in the 19th century, as the United States begins to transition from state regulation of immigration to federal regulation of immigration, so it was important for me to present this as the first chapter, as really setting the stage for the readers to understand a little bit about immigration restriction, but also how important the Alien Friends Act during this period is to the story of immigration and immigration law and history, but also to this story of ideological exclusion and deportation in the United States.

Kelly Therese Pollock  28:24  
Yeah. And lest listeners think that these alien friends were actually dangerous, at least one of them, you point out in the book, the reason that they were considering deporting was, "He's just too French."

Julia Rose Kraut  28:36  
Precisely. That's unfettered discretion.

Kelly Therese Pollock  28:40  
Yes. So you mentioned that what initially brought you into the story was the anarchists, and this idea that we might want to exclude or deport anarchists, and that, of course, sort of really comes about after the assassination of William McKinley. As someone from Canton, Ohio, I've long been hearing about McKinley. I was shocked that anyone was still talking about him. But, you know, his assassination is really important to this story. So I wonder if you could sort of talk a little bit about, you know, what happened? Why does that make everybody suddenly so afraid of anarchists within the United States?

Julia Rose Kraut  29:23  
So I present the suppression, or the war on anarchy in chapter two of my book, and I begin with the assassination of President William McKinley in 1901 at the Pan American Exposition in Buffalo, New York, by ananarchist named Leon Czolgosz and people noted that he had a foreign sounding name. He was also born in Detroit, Michigan. So there was a there was a lot of of blame of foreigners at this time, when it was an American born citizen who assassinated President McKinley. And what's interesting here is that you just kind of mentioned what you know, the focus on anarchists at this time and the suppression after the assassination. This actually the concern about anarchists goes back into the 19th century. And we can start with the Haymarket Affair of 1886 in Chicago, which brings anarchists to the forefront of public attention, but also in terms of linkages with anarchism and the ideology to violence. And again, that's that's a very interesting topic that I include in this chapter; but that's something including the miscarriage of justice in the prosecution and conviction of these anarchists and later they they were pardoned. Some of them were were executed before that. But this is also a moment that radicalizes many people, including a young woman named Emma Goldman. So Emma Goldman, who was a Lithuanian immigrant, Lithuania was part of the Russian Empire at that time, was born in 1869 emigrates to the United States and settles in Rochester, New York in 1885 and a year later, we have the Haymarket Affair, and these Haymarket martyrs, these anarchists who were accused of setting off a bomb in Haymarket Square and then were prosecuted where anarchy was really on trial, and it was the prosecution and the miscarriage of justice that radicalizes her, and she gets interested in anarchism that way. Now, by the late 19th century, anarchism is not only become very popular, but also has been linked with violence and has become anarchists become enemy number one, particularly in Europe, where there's a slew of assassinations in 1890s. And the United States is kind of wrestling with figuring out, do they want to get involved with the war on anarchy. They are also concerned about anarchist violence by the 1890s and into by 1901 Emma Goldman, who moves to New York City and becomes involved with the anarchist movement, including gaining a comrade in Alexander Berkman, the anarchist and she becomes a protege of Johann Most, one of the preeminent anarchists in the United States at that time. She becomes the leader of the anarchist movement by 1901 in the United States. And so the United States is concerned about anarchy. But while the European nations are beginning to organize in terms of a concerted effort to suppress anarchists, the United States haven't got hasn't gotten into the game yet. They haven't gotten into the war on anarchy yet. So I mentioned that only because there had been concern well before 1901, and the assassination of President McKinley. And it's the assassination of President McKinley by Leon Czolgosz that pushes the United States over the edge and into the war on anarchy. And that's where you get suppression of anarchists. But they don't really have any laws in the books, and so what ends up happening is initially, they're using breach of the peace statutes to try to suppress anarchist newspapers or speeches. They use the Comstock Act of 1873 to suppress anarchist newspapers. It's through the mails. And then in 1902, New York passes the criminal anarchy law, right? So it's the first state law which prompts the formation of the first civil liberties organization, the Free Speech League, which is going to be the precursors to the American Civil Liberties Union. And you also have a focus on Emma Goldman, because what assassin Leon Czolgosz says is, "I attended one of her speeches and she set me on fire." Now there's a race to arrest Emma Goldman after the assassination of McKinley, but they can't hold her because they can't really link her to the assassination. Even Leon Czolgosz said, "You know, she wasn't involved." And so they can't hold Emma Goldman, but the focus is, is, what are they going to do about anarchists? And what are they going to do about Goldman? Now, in addition to the Criminal Anarchy Law, Congress passes the Alien Immigration Act of 1903 which is something that I had studied initially when I was focused on this, on this issue, and what has turned me into focusing on ideological exclusion and deportation. And this bars anarchists from the United States and authorizes their deportation, and focuses on belief in anarchism or a disbelief in any form of organized government. What it doesn't do is it doesn't make a distinction this law between kind of philosophical anarchists and violent anarchists. And so what happens is that there is an English trades unionist who is invited by Emma Goldman to come to United States. He's been to the United States before to give a lecture series, and public officials and immigration officials are watching, and they're tracking his movements and the invitation so with the intention of capturing him when he enters the United States and deporting him under this new law, which they attempt to do. So John Turner comes to United States, gives a speech, he's arrested, he's sent to Ellis Island before board of special inquiry and is ordered deported under this Alien Immigration Act, and technically they he wasn't there for that long. They refer to as it's kind of treated as an exclusion. But he challenges it, and he uses this as a test case to challenge this, his expulsion from the United States and this under this exclusion law. And it goes to the Supreme Court andguess who represents John Turner? The very famous criminal defense attorney Clarence Darrow. And Turner is supported by the Free Speech League, which not only provides legal support, but raises contributions for his his cause, and it comes to the Supreme Court, as the Supreme Court upholds his exclusion under the Alien Immigration Act, and basically says the United States has a right to decide who it excludes or deports. It's decided it's going to exclude or deport anarchists. John Turner is an anarchist, and furthermore, you know as someone who's trying to kind of come into the United States in an exclusion context, those seeking entry don't have constitutional rights to challenge their exclusion. Now, it's a little bit different when it comes to deportation, and that's something that I explore in the book, but that's what the Supreme Court holds and also says, you know, at this time, it also corresponds a little bit to the fact that that Congress has found that anarchy has a bad tendency to lead to violence, and that would not be protected at that time during when the case was decided in 1904 under the First Amendment. So I discussed that case, but let's get back to Emma Goldman. So we still haven't gotten Emma Goldman out of the country. We've we've somehow managed to exclude John Turner, but Emma Goldman's still here. So what the United States decides to do, it's going to de naturalize Emma Goldman, to allow her to be deported, because at that time, Emma Goldman had gained derivative citizenship through marriage. She had married another immigrant named Jacob Kershner, and he had citizenship, and so through that marriage, she had derivative citizenship. So what the government decides to do is, well, we'll figure out a way to denaturalize Kershner, and then, in turn, will be able to strip Goldman of her citizenship. And they do it. They're able to prove, through a denaturalization law in 1906, they're able to to use that 1906 law to look at Kershner and find that he had obtained his naturalization through misrepresentation, and that was under the the Denaturalization Act of of 1906 that was one of the grounds in which you could strip someone of their naturalization, their citizenship. And so once they denaturalize Kershner, Goldman no longer is a citizen, but she's still in the United States. So what ends up happening is she's lost her protection of citizenship, but they've still got to figure out a way to get her out of the country, and under that 1903 law, she's been in the country too long, and it doesn't apply to her anymore. There was a three year limit in terms of deportation, and she had been a long term resident of the United States. Let's fast forward to World War I, and that's where I continue the story in the book to chapter three. So I talk a little bit about ideological exclusion and deportation in particular, as well as denaturalization in chapter three, during World War I of radicals, anarchists and members of the Industrial Workers of the World, often known as the Wobblies. And they become the targets, along with anti war protesters, of speech suppression as well as ideological deportation and denaturalization. Emma Goldman and her comrade Alexander Berkman had formed the No Conscription League and had protested World War I, and were arrested and convicted and served time while A. Mitchell Palmer, the attorney general at the time, and a young man named J. Edgar Hoover were orchestrating the deportation of Alexander Berkman and Emma Goldman. And so when they are released from prison, they're sent for deportation hearings, and under a new law, the Anarchist Exclusion Act of 1918, the revision in that law allows anarchists to be deported at any time after entry, no matter how long they had been in the United States. And it's under the the Anarchist Exclusion Act of 1918, that Emma Goldman is finally deported from the United States with Alexander Berkman on what was known as the Red Ark, SS Buford to a new Soviet Russia in December, 1919. And by 1920, that's when you have not after the Red Scare the Palmer Raids. A. Mitchell Palmer and J. Edgar Hoover orchestrate these raids to gather up a number of radicals and attempt to deport them under the Anarchist Exclusion Act of 1918. And what happens with Emma Goldman is she ends up going to Soviet Russia, becoming disillusioned, marrying again, and gaining citizenship that way in Europe, and eventually sells in Canada, does a book tour for her autobiography, and is let in by Secretary of Labor Frances Perkins in the 1930s briefly to promote her book, and then returns to Canada just broken hearted because she missed the United States so much, and eventually dies and is buried close to the Haymarket martyrs in the Chicago cemetery where they're buried. So it's a very kind of poignant story, but a very important one in the history of ideological exclusion deportation, because you can see how this is not the first time, but also certainly not the last time that an individual would going to be going to be targeted for ideological deportation. We see this in other cases after Goldman, in terms of using ideological deportation as a tool to target was considered a threat and to suppress expressions of dissent. And then you also have is a change in the law so that you we see, and something that I trace throughout the book is how Congress changed the law to find new ways and make it easier to deport and to exclude, and also to change different categories of exclusion deportation. So in 1919 the threat was Bolshevik supporters and Wobblies and anarchists. That's going to change in the 1930s where it's going to be communist, and into the 1950s and into the 1960s and eventually we're going to switch by the 1980s and 1990s from communists to terrorists, and then what we have today.

Kelly Therese Pollock  43:36  
So, listeners might be thinking, what about the First Amendment? And you mentioned earlier that you know it was well, if you're being excluded, you don't have First Amendment Rights, because you're not here. How does the First Amendment, more broadly interact with these policies?

Julia Rose Kraut  43:54  
It's a great question. It's one of the things that I trace in the book, in terms of not just the change over time and evolution of ideological exclusion deportation provisions, but also placing it in the context of immigration restrictions as well as First Amendment law and restrictions. And what I find is is that you know, those who are pushing passage and implementation of ideological exclusion, deportation, interpreted those laws as immigration issues under immigration law, and those who were resisting them, and those who are pointing out how they were being used to suppress dissents, and this is really a First Amendment issue. Now I should say that what I show in the book is that we did not have a lot of First Amendment protection for advocacy and speech until, really, 1969 with our current standard. So we had is that I mentioned briefly in the discussion of the John Turner case that we had something called the bad tendency test that we got from kind of English common law, which was not a speech protective test, and was basically, if there was a tendency, a natural probable tendency to, you know, cause harm, that was enough to justify speech suppression, and would fall outside of First Amendment protection. Also the First Amendment did not apply to the States until 1925 so you had, you know, state regulation of speech. You also had state protection of speech. You know, state constitutions had their own speech protections and their own equivalent of the First Amendment free speech protection. But what fell under that protection? Not much, because you had this bad tendency test. Now eventually by World War I, and you have the introduction of the clear and present danger test, which doesn't quite take hold, but is introduced. And you also have a discussion of ideological exclusion and deportation at that time, particularly with the founders of the modern Free Speech Movement, which I discuss in the book, including a professor named Zachariah Chafee Jr, who's considered like the father of modern free speech, which is who is very critical of ideological deportation, and says it is a free speech issue and that you shouldn't do this, and you can trace this up. And ultimately, over time, there's more and more speech protection. Through the 40s into the 50s, there's McCarthyism, but then with the rollback of McCarthyism by the 1960s and as I mentioned, the late, late 1960s by 1969, we have a robust First Amendment protection for speech and advocacy, and the current standard that we have today, which is very speech protective. Now the issue is, how do we interpret ideological exclusion, deportation? Now deportation gets a little bit more protection for those within the United States, and there's a case called Bridges vs Wixon in 1945 which the Supreme Court articulates that citizens and aliens alike have first amendment rights. But when it comes to exclusion, what about that Turner precedent? And so in 1972 there's a case called Kleindienst vs Mandel, and that's where I do a case study in chapter six, including that kind of smoking gun archival research that I that I found, but that's where the Supreme Court upholds the exclusion of a Belgian Marxist economist named Ernest Mandel as visa denial by the Nixon administration. But there is a pathway to challenge ideological exclusion through the First Amendment rights of those within the United States seeking that foreign, non citizen entry and in terms of their rights have been violated by visa denial. So in that case, you had American professors who invited Mandel to come to United States to speak, and they sued. They challenged his exclusion as a violation of their First Amendment right to receive information and to hear. Now, they lost that case, but they did have standing to challenge the exclusion based on their First Amendment rights, and what the Supreme Court kind of holds is that the First Amendment legal standards do not apply in full to those seeking entry, and in that case, there is a facial, legitimate and bona fide reason that the government must articulate to deny a waiver of inadmissibility or to deny a visa. Now what's significant about this is this is a major step in terms of challenging ideological exclusion and providing a pathway, but it's that standard that facial, legitimate and bona fide reason standard is well below current First Amendment standards. So what happens? What happens is that there's a major push in the 1970s into the 1980s to get rid of ideological exclusion and deportation provisions that were in the 1952 McCarran Walter act, that was the current act that they were challenging. And there was a major push by members of the public, by the ACLU, by PEN America, by other civil liberties organizations, and by those who had faced exclusion themselves, including Carlos Fuentes and Gabriel Garcia Marquez, all pushing, saying," We got to get rid of these provisions. They're vestiges of McCarthyism, and even be before then we shouldn't be using them. In the 1980s the Reagan administration actually had started using them, and we need to get rid of these provisions." And so there's a push in Congress to get rid of these provisions, and it works. And what happens is that Congress applies current First Amendment standards. Or at least tries to incorporate that into the Immigration Nationality Act so people cannot be excluded or deported based on past, current or expected beliefs or statements or associations that would be protected under the United States Constitution. Now there was a provision that was added, a compromise provision in 1990 that authorized the Secretary of State to expel or exclude based on a threat to foreign policy. And that's a foreign policy provision that it would that the presence of an individual would compromise a foreign policy interest of the United States or produce an adverse foreign policy consequence. This was a compromise provision in repealing in Congress, so that in repealing the ideological exclusion and deportation provisions, this was one compromise of adding this foreign policy exception, but it was never intended to undo that repeal of ideological exclusion and deportation. The real focus was on an example of the admission of the former Shah of Iran in 1979 which had led to the Iranian hostage crisis and a major international incident. What the Congress articulated is that that foreign policy provision was to be used rarely in unusual circumstances, and certainly not just based on criticism of the United States. And we see now as as we are recording here in 2025 that that the Trump administration has turned to that provision in its legal justification to deport foreign, non citizen students and protesters from the United States. But this was not the intention of Congress at that time in 1990 when there had been so much progress made in terms of repealing ideological exclusion deportation, the intention of that foreign policy provision was never to undo or roll back that progress, and now we see it being used again, along with a turn in ideological exclusion deportation to terrorism, and that terrorists are now the main focus and threat. And it raises other First Amendment questions in terms of the expansion or broadening of an understanding of what is terrorism and how these laws, the foreign policy provision, as well as anti terrorism provision, can be used now to ideologically exclude and deport along with new tools like social media, using social media to vet individuals, and possibly exclude them from the United States, or use that the social media as tools to deport. And one thing that I've stressed in talking about this, and something that I articulate in the book, is that what's remarkable is that the threats and the targets have changed over time, and that's something that I show in this long narrative, and the technology has changed over time, but the motivation to use ideological exclusion deportation as a tool to suppress dissent and as a tool of political repression has not changed, nor has the consequence which has been the chilling effect on free speech.

Kelly Therese Pollock  53:42  
There are so many more questions I could ask you, but I want to encourage listeners to read your book, which is so so relevant to everything that is happening today. So please tell us how they can get a copy of the book.

Julia Rose Kraut  53:56  
Well, you can order it from your local independent bookstore. You can order it directly from Harvard University Press, or, if you so choose, from amazon.com, and it is available electronically and in paperback.

Kelly Therese Pollock  54:12  
Julia, thank you so much for speaking with me today. I learned so much reading your book. It's a little horrifying that you know this has just always been happening, but it was really, really great to learn about it and to speak with you. 

Julia Rose Kraut  54:25  
It was a pleasure to speak with you. 

Teddy  54:43  
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