Free Speech Unmuted: Can Non-Citizens Be Deported For Their Speech?

Jane Bambauer and I discuss the First Amendment and immigration law: deportation, exclusion, denial of citizenship, and more.

See also our past episodes:

• Freedom of the Press, with Floyd Abrams
• Free Speech, Private Power, and Private Employees
• Court Upholds TikTok Divestiture Law
• Free Speech in European (and Other) Democracies, with Prof. Jacob Mchangama
• Protests, Public Pressure Campaigns, Tort Law, and the First Amendment
• Misinformation: Past, Present, and Future
• I Know It When I See It: Free Speech and Obscenity Laws
• Speech and Violence
• Emergency Podcast: The Supreme Court's Social Media Cases
• Internet Policy and Free Speech: A Conversation with Rep. Ro Khanna
• Free Speech, TikTok (and Bills of Attainder!), with Prof. Alan Rozenshtein
• The 1st Amendment on Campus with Berkeley Law Dean Erwin Chemerinsky
• Free Speech On Campus
• AI and Free Speech
• Free Speech, Government Persuasion, and Government Coercion
• Deplatformed: The Supreme Court Hears Social Media Oral Arguments
• Book Bans – or Are They?

Comments

[Joe_dallas]

No - non resident aliens should not be deported for exercising their 1A rights. Several commentators have provided excellent explanations as to why non resident aliens have 1A rights

However, Indications are reasonably strong that Khalil did more than just crossing the line and thus is being deported for reasons other than exercising his 1a right.

Why is so much effort being spent discussing 1a when it doesnt apply to the Khalil situation

[Dr. Ed 2]

It depends how one defines 1a....

There are people who claim that maintaining a Judenfrei campus constitutes free speech -- that the blockades are free speech.

The schmucks sitting on the floor in Trump Tower consider that free speech -- and not illegally preventing people from patronizing the businesses there.

[ReaderY]

Note the “should.” That’s a policy argument, not a constitutional one.

While aliens inside the US have 1A rights against criminal punishment, deportation is no more a punishment than not being elected President is,

People can choose not to elect someone President solely becuse of the individual’s speech, and there is no 1A violation in doing so. Visas and deportation work the same. Deciding who can and cannot be permitted ro enter or remain in the country is every bit as matter of pure discretion as deciding who can and cannot be President. The fact that the federal government and not state-appointed electors are making the decision in no way changes this.

A discretionary decision not to have an alien remain in the country because of the alien’s speech is no more a violation of the alien’s First Amendment rights than an equally discretionary decision not to re-elect an incumbent President because of the incumbent’s speech. In both cases, incumbency simply doesn’t create rights to remain in the same status. A decision to terminate the incumbancy is a purely discretionary decision, which can be made for any reason, no reason, or a bad reason.

Note: this equally applies to appointed offices, like federal judges, where the appointment is made entirely by government actors. The President no more violates an alien’s constitutional rights by choosing not to admit or choosing to deport that person than he violates a person’s rights by choosing not to appoint that person a cabinet officer, or firing that person, based on political views.

[David Nieporent]

A discretionary decision not to have an alien remain in the country because of the alien’s speech is no more a violation of the alien’s First Amendment rights than an equally discretionary decision not to re-elect an incumbent President because of the incumbent’s speech. In both cases, incumbency simply doesn’t create rights to remain in the same status. A decision to terminate the incumbancy is a purely discretionary decision, which can be made for any reason, no reason, or a bad reason.

That's an incredibly stupid analogy. Are you trying to make Dr. Ed look logical? The 1A doesn't bind voters; it binds the government.

[Dr. Ed 2]

Does the rule of law still apply in this country?!?

A judge has now ruled that probationary employees can not be fired, even though that is why they *are* probationary employees.

But I think here the real question is what constitutes "speech"? And what constitutes violence? Some seem to think that preventing other people from engaging in lawful activities constitutes "speech" and that a blockade does not constitute "violence" -- it actually does.

[Please, Daivd, Seek Help]

A judge has not ruled that probationary employees cannot be fired. You reply to every single post on this law blog so I know you spend a lot of time reading about developments in legal cases, and that's not what the judge said, and you know that's not what the judge said.

What the judge said is that OPM cannot force agencies to terminate probationary employees, and, based on the evidentiary record, that's what occurred in the case in front of them. The agencies can terminate the employees (and the president can almost certainly instruct agency heads to terminate the employees), but the agencies cannot be compelled to by the OPM, an unrelated part of the government. OPM is still, of course, free to request that agencies terminate employees.

For example, if a court were to order that _you_ cannot terminate me from my job, that is not the same as the court declaring that I cannot be terminated from my job.

The ruling is 20 pages, easily readable, and reproduces much of the evidence making it clear the terminations were directed by OPM.

It's fine if you disagree with the court on the law, or on the merits of the policy, but if you're going to post about it you should pull up your pants

[Dr. Ed 2]

OK, I did not realize that the OPM is a separate agency.

[Please, Daivd, Seek Help]

Perhaps it would be good not to have strong opinions about the collapse of the rule of law if you did not realize very basic institutional features of the US government? Again, stop shitting yourself in public. You're an adult, act like one. No one asked you to be like this.

[Dr. Ed 2]

This is what OPM said -- I don't see now it's them ordering agencies to fire anyone. Yes, it says create a list, and I don't speak FedSpeak well enough to know if "should" means "must", but even if it does, this is creating a list.

The added paragraph appears to indicate that OPM is *not* telling them to fire anyone. While i haven't found the decision, from what I see, the agencies aren't allowed to fire them either.

"No later than January 24, 2025, agencies should identify all employees on probationary periods, who have served less than a year in a competitive service appointment, or who have served
less than two years in an excepted service appointment, and send a report to OPM listing all such employees to [e-mail]. In addition, agencies should promptly determine whether those employees should be retained at the agency."
On March 4, OPM added:
"Please note that, by this memorandum, OPM is not directing agencies to take any specific performance-based actions regarding probationary employees. Agencies have ultimate decision-making authority over, and responsibility for, such personnel actions."

[rloquitur]

Regarding OPM, it's one government--that seems really silly from the judge.

I think that it's much better to look at the alien free speech right issue in terms of society having the power to dictate the terms upon which non-citizens get to be here. This guy, Khalil, has clearly crossed the line from pure speech into actions.

[windycityattorney]

I think most people would agree...expressing an opinion is one thing. Acting on it devolves into conduct and that conduct or actions likely should be treated differently than merely voicing an opinion.

I have been following this case a little and lots of discussion of potential crimes he committed are being referenced but I don't see that he has been charged with any specific crimes. Does 'suspected of criminal acts' mean anything? Surely there are a plethora of federal crimes for material support of designated terrorist organizations.

There is the slippery slope argument; that the Govt in its sole discretion can determine who or what organizations are 'designated terrorist organizations' and then punish people who nominally support those groups accordingly. I am looking at the designation of mexican drug cartels as terrorist organizations with a skeptical eye. They are certainly criminal organizations, drug dealers and responsible for countless murders. But do they act for a political aim or for normal criminal aims like securing territory from rivals, securing drug routes for smuggling, making more money, trying not to get caught, etc...? If some green card holder who routinely sends money back to relatives in Mexico has a cousin who (unknowingly to the person in the US) joins a cartel providing material support to a terrorist organization? Should their green card status be revoked? Should they be charged with a crime first and if convicted, then lose legal status and be deported as a collateral consequence of the conviction? The accusation alone as grounds to deport seems flimsy at best and easy to manipulate. Especially to an administration whose stated goal is to deport as many people as possible as quick as possible.

[rloquitur]

If the society has (should have) the right to dictate the terms upon which someone joins it, why do we have to worry about an actual criminal conviction? Mahmoud Khalil seems clearly undesirable. He made common cause with protesters who prevented students from going to class. There are photos of him in buildings etc. when he shouldn't have been. And I think people forget how pernicious these protesters were--just imagine someone trying to go to class, and he's wearing a yarmulke.

As a side note, this is why I believe in the 2A. People should not have to cave to mob rule.

[Joe_dallas]

concur - his actions appear to significantly more than exercising his 1a rights., ie trespassing, interferring with others property and 1a rights, hostile actions or threats of hostile actions. thought his apologists would say "mostly peacefull"

[Dr. Ed 2]

Isn't immigration law civil law?
if so, the civil preponderance standard applies -- you can be booted without being convicted because of the lower civil standard.

[Brett Bellmore]

And there's the fraud element, too. He made certain representations about his behavior in order to get that green card, and his violations of them came so soon after he got it that there's a strong case to be made that he'd lied when he applied for it.

[JonFrum]

If visitors have 1st amendment rights, then there is no difference between a visitor and a citizen. Did the founders - or citizens who discussed the coming Constitution - ever say that the Constitution would grant the world American rights? Did they say explicitly that anyone wandering in over the border would have full American rights? I may be wrong, but not that I know of This is a simple principle - I will feed a guest in my home, but a guest has no right to my food.

[gdanning]

The Fourteenth Amendment refers to the privileges and immunities of citizens, but the rights of persons.

And see https://firstamendment.mtsu.edu/article/bridges-v-wixon/

[Dr. Ed 2]

Does the 14th Amd apply to the Federal Govt -- it wasn't intended to...

[not guilty]

As to the Due Process clause of the Fourteenth Amendment, which applies to states, there is a corresponding Due Process clause in the Fifth Amendment applicable to the federal government.

The Fifth Amendment Due Process clause includes an equal protection component applicable to the federal government to the same extent as the Fourteenth Amendment Equal Protection clause applies to the states. As Chief Justice Warren opined in Bolling v. Sharpe, 347 U.S. 497, 498-99 (1954):

We have this day held that the Equal Protection Clause of the Fourteenth Amendment prohibits the states from maintaining racially segregated public schools. The legal problem in the District of Columbia is somewhat different, however. The Fifth Amendment, which is applicable in the District of Columbia, does not contain an equal protection clause as does the Fourteenth Amendment which applies only to the states. But the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive. The "equal protection of the laws" is a more explicit safeguard of prohibited unfairness than "due process of law," and, therefore, we do not imply that the two are always interchangeable phrases. But, as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process. [Footnotes omitted.]

“The liberty protected by the Fifth Amendment’s Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws.” United States v. Windsor, 570 U.S. 744, 774 (2013).

[Commenter_XY]

Professor Volokh, I was a little surprised when you said you weren't sure if Khalil's green card could be revoked by the SecState. Was that b/c you wanted to know more about the circumstances around 'espousing terror'?

I have said this before, and want to say it again. Thank you for continuing to stay focused on free speech issues for many years now. It makes a difference.

[not guilty]

As I have written on the open thread regarding Mahmoud Khalil:

First Amendment freedoms and due process liberties apply to persons, not merely to citizens. Privileges and Immunities of citizenship is accordingly not the applicable metric.

SCOTUS has expressly rejected a contention that (even undocumented) aliens, because of their immigration status, are not "persons within the jurisdiction" of a state, and that they therefore have no right to the equal protection of state law. Plyler v. Doe, 457 U.S. 202, 210 (1982). The Court there elaborated:

Whatever his status under the immigration laws, an alien is surely a "person" in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as "persons" guaranteed due process of law by the Fifth and Fourteenth Amendments. Shaughnessv v. Mezei, 345 U. S. 206, 345 U.S. 212 (1953); Wong Wing v. United States, 163 U.S. 228, 163 U.S. 238 (1896); Yick Wo v. Hopkins, 118 U.S. 356, 118 U.S. 369 (1886). Indeed, we have clearly held that the Fifth Amendment protects aliens whose presence in this country is unlawful from invidious discrimination by the Federal Government. Mathews v. Diaz, 426 U.S. 67, 426 U.S. 77 (1976).

457 U.S. at 210 (footnote omitted). The Plyler court also rejected the contention that the Fourteenth Amendment Equal Protection clause has a broader scope than the Fifth and Fourteenth Amendment Due Process clauses:

We have never suggested that the class of persons who might avail themselves of the equal protection guarantee is less than coextensive with that entitled to due process. To the contrary, we have recognized that both provisions were fashioned to protect an identical class of persons, and to reach every exercise of state authority.

Appellants seek to distinguish our prior cases, emphasizing that the Equal Protection Clause directs a State to afford its protection to persons within its jurisdiction, while the Due Process Clauses of the Fifth and Fourteenth Amendments contain no such assertedly limiting phrase. In appellants' view, persons who have entered the United States illegally are not "within the jurisdiction" of a State even if they are present within a State's boundaries and subject to its laws. Neither our cases nor the logic of the Fourteenth Amendment support that constricting construction of the phrase "within its jurisdiction." We have never suggested that the class of persons who might avail themselves of the equal protection guarantee is less than coextensive with that entitled to due process. To the contrary, we have recognized that both provisions were fashioned to protect an identical class of persons, and to reach every exercise of state authority.

"The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. It says: "Nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

"These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality, and the protection of the laws is a pledge of the protection of equal laws."

457 U.S. at 211-212, quoting Yick Wo, supra, at 118 U.S. 369 (footnote omitted; italics supplied in Plyler). "There is simply no support for appellants' suggestion that "due process" is somehow of greater stature than "equal protection," and therefore available to a larger class of persons. To the contrary, each aspect of the Fourteenth Amendment reflects an elementary limitation on state power." Id., at 213.

Courts have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control. Shaughnessy v. U.S. ex rel. Mezei, 345 U.S. 206, 210 (1953). Despite that, however, "It is true that aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law." Id., at 212. "To be sure, a lawful resident alien may not captiously be deprived of his constitutional rights to procedural due process." Id., at 213.

Content or viewpoint discrimination as to First Amendment protected expression violates equal protection. As SCOTUS opined in Police Dept. of City of Chicago v. Mosley, 408 U.S. 92, 96 (1972):

Necessarily, then, under the Equal Protection Clause, not to mention the First Amendment itself, government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views. And it may not select which issues are worth discussing or debating in public facilities. There is an "equality of status in the field of ideas," and government must afford all points of view an equal opportunity to be heard. Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the basis of what they intend to say. Selective exclusions from a public forum may not be based on content alone, and may not be justified by reference to content alone.

(Footnote omitted.)

If the Secretary of State could not summarily revoke a resident alien's green card for speaking out in opposition to Hamas, neither can he revoke Mr. Khalil's green card for speaking out in opposition to Hamas. As Justice Robert Jackson opined, "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein." West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642 (1943). Plyler v. Doe and Bridges v. Wixon, 326 U.S. 135, 162 (1945) ("[T]he First Amendment and other portions of the Bill of Rights make no exception in favor of deportation laws or laws enacted pursuant to a "plenary" power of the Government") teach that Justice Jackson's famous comment applies equally to non-citizen resident aliens as well.

[Dr. Ed 2]

the same Justice Jackson said that the Constitution was not a "suicide pact" -- Terminiello v. Chicago.

[David Nieporent]

That was a dissent. It's a clever turn of phrase but has no legal meaning.

[emanate in my penumbra]

Due process is not coextensive with every amendment within the bill of rights, even if the due process clause was the (dubious) means by which the BOR was incorporated to the states

[salamander]

Professor Volokh, you make mention in this discussion the protection that you now have as a naturalized citizen. But, unlike native-born citizens, naturalized citizens can have their citizenship revoked for, inter alia, being "...affiliated with any organization that advocates or teaches ... (C) the unlawful damage, injury, or destruction of property...". 8 USC §1424.
So, even if Khalil were a naturalized citizen, he still wouldn't necessarily be protected, if he was affiliated with a group of students who advocated damage to Columbia property.

[Brett Bellmore]

I think you've seriously misread that law. It applies to people who have not yet taken their final oath of citizenship.

" The provisions of this section shall be applicable to any applicant for naturalization who at any time within a period of ten years immediately preceding the filing of the application for naturalization or after such filing and before taking the final oath of citizenship is, or has been found to be within any of the classes enumerated within this section, notwithstanding that at the time the application is filed he may not be included within such classes."

Basically the only way you lose citizenship AFTER that oath is if it can be demonstrated that you obtained the citizenship fraudulently. So, if you had concealed the above sort of conduct prior to taking the oath, or engaged in it so quickly after taking the oath that it could reasonably be concluded that you'd sworn falsely, then you could lose your citizenship.

This, by the way, probably describes Khalil's situation.

By contrast, if Somin were, today, to join a terrorist organization, (Note: I'm not suggesting this is in any way likely!) he'd safely retain his citizenship, because at this remove there would be no reason to suspect that his terrorist affiliation had predated the oath.

[ObviouslyNotSpam]

The UK has bravely revoked the citizenship of its own natural-born citizens, but the US has not yet taken that step.

However, I predict that it will, in the not too distant future.

[salamander]

I appreciate your comment. But doesn't 8 USC §1451(c) (Revocation of Naturalization) incorporate by reference the requirements of §1424(a)(4)? This does seem to be primarily about the first five years after naturalization, and I certainly do admit that I'm a bit confused by all this.

[Voize of Reazon]

You summarize Kleindienst as the Supreme Court affirming that the government could exclude Mandel based on his speech. That may have been argued at trial but the question on appeal was whether his exclusion offended the First Amendment rights of the audience.