Immigrants and Radicals Have the Same Free Speech Rights as Everyone Else
Campus protests against Israel have revived debates over the limits of First Amendment protections.
Can foreigners legally residing in the United States be tossed out of the country for engaging in controversial or even vile speech? Court cases suggest the answer is "no" and uphold the idea that free speech is a right adhering not only to Americans but also to those just visiting. On Tuesday, a federal judge in Massachusetts allowed a lawsuit against the Trump administration's deportation proceedings aimed at noncitizen anti-Israel college radicals to proceed on the grounds that the government is targeting protected speech in such a way that it chills the willingness of foreign university students and faculty at schools in this country to speak out about controversial issues.
Deportations Have a 'Chilling' Effect
Unlike some of the cases that have gone to court (such as that of Mohsen Mahdawi, whose release was ordered by a federal judge on Wednesday) American Association of University Professors v. Rubio doesn't revolve around the conduct of a particular individual. That means there's no grounds to debate whether a given graduate student or professor was engaged in speech alone or if that person crossed over into illegal conduct or support of a terrorist organization. In some cases, such as that of Rümeysa Öztürk, the government has alleged nothing beyond controversial speech. Instead, this case was brought by the American Association of University Professors, that organization's Harvard and New York University chapters, and the Middle East Studies Association alleging the "chilling" of noncitizen members' activities by federal policy.
In their lawsuit against the Trump administration's deportation policies, the plaintiffs allege that members of their organization "have, variously, taken down social media posts and previously published writing and scholarship, stopped assigning material about Palestine in class, withdrawn from a conference presentation, ceased traveling abroad for conferences, ceased engaging in political protest and assembly in which they previously participated, ceased teaching a course they previously taught, and foregone opportunities to write and speak at public events," among other abandoned activities out of fear that they might be targeted for deportation.
Trump Vowed To Punish Speech
Whatever one might think of campus protesters' often-noxious political opinions since October 7, their fears are grounded in reality. As pointed out in the case, President Donald Trump took office pledging in two executive orders to "combat anti-semitism" and "to prosecute, remove, or otherwise hold to account the perpetrators of unlawful anti-Semitic harassment and violence" as well as to protect citizens from aliens who "espouse hateful ideology."
In a related fact sheet, published January 30, the president vowed: "To all the resident aliens who joined in the pro-jihadist protests, we put you on notice: come 2025, we will find you, and we will deport you. I will also quickly cancel the student visas of all Hamas sympathizers on college campuses, which have been infested with radicalism like never before."
It's possible to agree with Trump's opinion of college campuses and the protests without endorsing the punishment of people who do nothing more than "espouse hateful ideology" or join in demonstrations of any sort without committing crimes against people or property. The government can't do that.
Noncitizens Have (Some) First Amendment Rights
"It is well established that noncitizens have at least some First Amendment rights," wrote Judge William G. Young of the U.S. District of Massachusetts. "Although case law defining the scope of noncitizens' First Amendment rights is notably sparse, the Plaintiffs have at least plausibly alleged that noncitizens, including lawful permanent residents, are being targeted specifically for exercising their right to political speech."
Based on the plaintiffs' allegations of chilled speech, and the Trump administration's very public efforts to target and remove noncitizens who study and work at U.S. universities while also engaging with controversial debates over Israel and Palestine or explicitly participating in protests, Young added: "First Amendment challenges may be brought against unwritten policies, and at this stage the existence of the policy the Plaintiffs allege is a factual issue on which this Court must draw all reasonable inferences in their favor."
The Trump administration argues that it's allowed to target loudmouth students and academics if they're not citizens, but "this Court cannot agree that this alleged conduct would be constitutional," Young continues. "The Public Officials' reliance on case law from the height of the second Red Scare era, such as Harisiades v. Shaughnessy, 342 U.S. 580 (1952), is misplaced, and this Court assumes instead that noncitizens lawfully present in the United States have at least the core rights protected by the First Amendment, chief among them the right to speak on political subjects at least where such speech poses no immediate threat to others."
As a result, the court allowed the plaintiffs to continue with their challenge to the deportation policy on First Amendment grounds and on a claim that it violates the Administrative Procedure Act. The judge turned away the plaintiffs' Fifth Amendment vagueness challenge. Overall, it was a victory for the organizations opposing the deportations.
'Certain Unalienable Rights'
As is always the case with free speech cases, it's necessary to separate opinions of what people say from considerations of their right to say it. The Declaration of Independence referred to "certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." The First Amendment strictly specifies that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press." Both are rooted in the understanding that rights don't come from government but are inherent in individuals. The government must respect our rights whether or not it agrees with how we exercise them so long as we, in turn, respect others' equal rights.
In February, Eugene Volokh of the Hoover Institution and the UCLA School of Law wrote that "when it comes to aliens and immigration law, the First Amendment questions aren't settled" in a discussion about the constitutionality of deporting noncitizens for their speech. That may still be true, but cases like American Association of University Professors v. Rubio show at least some federal judges viewing First Amendment protections as universally applicable, which squares with American history.
Campus radicals have the same free speech rights as we all possess, even if they're just visiting.
