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Free Speech

May Aliens Be Deported for Praising Assassination of American Political Advocates?

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Axios (Rebecca Falconer) reports:

Fox News' Gillian Turner noted during her interview with [Secretary of State Marco] Rubio that Deputy Secretary of State Christopher Landau had been "calling out on social media foreigners who he says are celebrating, glorifying" the fatal shooting of Kirk in Utah last Wednesday.

  • Landau had indicated in his Thursday post that the State Department would review the legal status of immigrants "praising, rationalizing, or making light" of Kirk's killing and Turner asked Rubio about plans for those U.S. visa holders.
  • Rubio said a visa "means you're a visitor to the United States" and "we are not in the business of inviting people to visit our country who are going to be involved in negative and destructive behavior."
  • People who "celebrate the murder, the execution, the assassination, of a political figure" should not be allowed in the country, he said. "And if they're already here, we should be revoking their visa."

Is that legal?

[1.] Since 2005, federal immigration law (8 U.S.C. § 1182(a)(3)(B)(i)(VII), (B)(iii)) has provided 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….

And "terrorist activity" is defined very broadly; it's not limited to actions by designated foreign terrorist organizations, and it's not even limited to actions by organized groups. Rather,

"[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. [Emphasis added.]

Endorsing the murder of Charlie Kirk appears to be endorsing an "assassination"; the term isn't defined in the statute, so it would be read in light of its normal meaning, which appears to be "murder [of] (a prominent person) by surprise attack, as for political reasons." And it appears to be endorsing the use of a firearm, other than for mere personal monetary gain, with intend to endanger a person's safety. To quote Landau's categories, merely "rationalizing" or "making light" of Kirk's murder without endorsing or espousing it would likely not be covered, at least by this section; but "praising" it may well be endorsement.

Moreover, 8 U.S.C. § 1227(a)(4)(B) makes clear that such aliens are "deportable," so they can be removed even after they've been living here for some time, rather than just excluded at the border. 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.

[2.] 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. As I've noted before, 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).

But 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.

As to deportation, 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."

Note also that the Court has 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).

[3.] To be sure, even if one concludes that deporting noncitizens for their speech doesn't unduly burden the rights of the noncitizen speakers, such deportations diminish the marketplace of ideas for Americans as listeners. When noncitizen speakers are deterred from speaking, Americans hear less of the viewers of foreigners; in a world where 96% of the population consists of non-Americans, it's important for Americans to understand how others think, and foreigners' speech in the U.S. can provide a valuable window on that.

Just to give one example, consider a conversation in a college classroom about, say, international law or a bloody foreign conflict or for that matter the proper attitudes towards foreign terrorism or domestic revolutions. Such a conversation would be sharply truncated if foreign students in the class are worried about being deported for saying something that might praise violence—which under the statute includes praise of foreign violence (e.g., assassination of Putin), not just of violence in the U.S. That's bad for the American students and not just the foreign ones.

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.