May Aliens Be Deported Based on Their Speech?

The answer, oddly, isn't settled.

Thursday's Fact Sheet related to Wednesday's Executive Order, Additional Measures to Combat Anti-Semitism, says (among other things):

• Immediate action will be taken by the Department of Justice to protect law and order, quell pro-Hamas vandalism and intimidation, and investigate and punish anti-Jewish racism in leftist, anti-American colleges and universities.
• The Order demands the removal of resident aliens who violate our laws.

Now, President Trump has promised that the Federal Government will: …

• Deport Hamas Sympathizers and Revoke Student Visas: "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."

This suggests that aliens who commit crimes may be specially targeted for deportation because their behavior is "pro-Hamas" or "anti-Jewish." And it also suggests that aliens might be deported even if they don't commit crimes, but are merely "Hamas sympathizers" "who joined in the pro-jihadist protests."

Indeed, the order itself refers to 8 U.S.C. § 1182(a)(3), which provides (in subsections (B)(i)(VII) and B(iii)) that:

Any alien who … endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization … is inadmissible….

"[T]errorist activity" means any activity which is unlawful under the laws of the place where it is committed (or which, if it had been committed in the United States, would be unlawful under the laws of the United States or any State) and which involves any of the following:

1. The highjacking or sabotage of any conveyance (including an aircraft, vessel, or vehicle).
2. The seizing or detaining, and threatening to kill, injure, or continue to detain, another individual in order to compel a third person (including a governmental organization) to do or abstain from doing any act as an explicit or implicit condition for the release of the individual seized or detained.
3. A violent attack upon an internationally protected person [a Chief of State or the political equivalent, head of government, or Foreign Minister whenever such person is in a country other than his own and any member of his family accompanying him or someone protected as a diplomat] or upon the liberty of such a person.
4. An assassination.
5. The use of any - (a) biological agent, chemical agent, or nuclear weapon or device, or (b) explosive, firearm, or other weapon or dangerous device (other than for mere personal monetary gain), with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property.
6. A threat, attempt, or conspiracy to do any of the foregoing.

And 8 U.S.C. § 1227(a)(4)(B) makes clear that such aliens are "deportable."

Congress, then, has authorized both denying visas to people based on their speech endorsing a wide range of violence, and deporting based on such speech people who had already been admitted. Nor is this limited to illegal aliens; it is also applicable to lawfully admitted visitors, including those under student visas and, as best I can tell, those who are lawful (and longtime) permanent residents.

Does this statutory scheme, and Executive actions to enforce it, violate the First Amendment? After all, the First Amendment generally protects endorsing or espousing violence. Americans are perfectly free, for instance, to say that it would be good if Putin were assassinated (either in Russia or when visiting, say, Belarus), that Israel should start taking Palestinians as hostages (even if doing so would be unlawful under American law), or that Palestinians were right to take Israeli hostages. The list of generally constitutionally protected speech that would be covered as "endors[ing] or espous[ing]" would be very long.

Yet when it comes to aliens and immigration law, the First Amendment questions aren't settled. Here's my sense of the current rules, such as they are:

[1.] Criminal punishment and traditional civil liability: The government may not criminally punish aliens—or, presumably, impose civil liability on them—based on speech that would be protected if said by a citizen. "Freedom of speech and of press is accorded aliens residing in this country." Bridges v. Wixon, 326 U.S. 135 (1945).

[2.] Entry: The government may bar noncitizens from entering the United States based on their speech, even speech that would have been protected if said by a citizen. "It is clear that Mandel personally, as an unadmitted and nonresident alien, had no constitutional right of entry to this country as a nonimmigrant or otherwise," including if the denial were based on his speech (as it was in that case). Kleindienst v. Mandel, 408 U.S. 753 (1972). And this is true even when denying entry to foreigners also interferes with Americans' right to hear them (for instance, at university conferences) or to talk with them.

[3.] Deportation: Here, though, the rule is unclear. The leading case, Harisiades v. Shaughnessy, 342 U.S. 580 (1952), speaks about nearly unlimit­ed Con­gressional power over deportation, but that language is in the sec­tion dealing with the argument that the deportation of Harisiades violated the Due Process Clause. The First Amendment discussion rested on the con­clusion that active membership in the Communist Party was sub­stan­tive­ly unpro­tect­ed by the First Amendment—both for citizens and non­citi­zens—which was the law at the time (see Den­nis v. United States (1951)).

Lower court cases are mixed. For the view that Harisiades doesn't generally let the government act based on otherwise protected speech by aliens, see American-Arab Anti-Discrim. Comm. v. Reno, 70 F.3d 1045 (9th Cir. 1995), rev'd on other grounds, 525 U.S. 471 (1999):

[T]he Court has explicitly stated that "[f]reedom of speech and of press is accorded aliens residing in this country." … Furthermore, the values underlying the First Amendment require the full applicability of First Amendment rights to the deportation setting. Thus, "read properly, Harisiades establishes that deportation grounds are to be judged by the same standard applied to other burdens on First Amendment rights."

See also Parcham v. INS, 769 F.2d 1001 (4th Cir. 1985). For the view that the federal government generally has nearly unlimited immigration power over aliens, see Price v. INS, 962 F.2d 836 (9th Cir. 1991):

[T]he protection afforded resident aliens may be limited…. [T]he Court has historically afforded Congress great deference in the area of immigration and naturalization…. "[I]n the exercise of its broad power over immigration and naturalization, 'Congress regularly makes rules that would be unacceptable if applied to citizens.'" [A]lthough Price [as a lawful permanent resident] is justified in expecting the greatest degree of constitutional protection afforded a non-citizen, the protection afforded him under the First Amendment certainly is not greater than that of the citizen plaintiffs in Kleindienst [whose First Amendment claims were rejected -EV].

See also Bluman v. FEC (D.C.C. 2011) (Kavanaugh, J.), aff'd without opinion (U.S. 2012): "The Court has further indicated that aliens' First Amendment rights might be less robust than those of citizens in certain discrete areas. See Harisiades."

[4.] Selective prosecution: The Court has, however, held that if the government tries to deport someone who has violated immigration law (for instance, by over­stay­ing his visa, or working without authorization, or committing a crime), the person generally may not challenge the deportation on the grounds that he was selectively prosecuted based on his otherwise protected speech. See Reno v. American-Arab Anti-Discrim. Comm., 525 U.S. 471 (1999). Outside the immigration context, such selective prosecution based on protected speech is generally unconstitutional. See Wayte v. United States, 470 U.S. 598 (1985).

[5.] Citizenship: Price suggests that Congress can deny noncitizens citizenship based on speech that would be protected if said by a citizen: "While a resident alien may not participate in the process of governing the country, naturalized citizens may. Naturalization decisions, therefore, deserve at least as much judicial deference as do decisions about initial admission."

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Perhaps the Trump Administration will indeed start deporting aliens based on their pro-Hamas speech, and we'll get a clear answer from the Supreme Court. But we don't have one so far.

I should say that I don't support the deportation of aliens for supporting foreign violence (at least unless there is reason to think they will act violently here). As some of the examples I gave above suggest, there are lots of legitimate arguments for violence when it comes to foreign wars and other international matters. Which arguments are morally sound and which aren't should be a matter for debate, not for government fiat.

And I think that chilling the speech of lawful visitors to the U.S. does interfere with the marketplace of ideas for Americans. Indeed, even pro-Hamas speech on American university campuses has, I think, taught many Americans a valuable lesson about various speakers, groups, and ideologies. That would be true of speech by foreign students or by lawful permanent residents as well as by American citizens. (See also this piece by Sarah McLaughlin [FIRE]).

But in this post I've tried to lay out the legal rules as they are, rather than as I think they should be. I hope this has been helpful and accurate; please let me know if the analysis above needs correction or elaboration.