First Amendment Broadly Protects Against Speech-Based Deportation of Noncitizens, Court Rules

Some short excerpts from the >35K-word decision by Judge Noël Wise (N.D. Cal.) in Stanford Daily Pub. Corp. v. Rubio:

Plaintiffs, Stanford Daily Publishing Corporation and Jane Doe, a noncitizen student holding an F-1 visa issued by the United States, bring their claims against Marco Rubio, in his official capacity as Secretary of State, and Markwayne Mullin, in his official capacity as Secretary of Homeland Security …. Plaintiffs allege that, since March 2025, the government has changed its immigration policy and pattern of enforcement, namely by arresting, detaining, and deporting students with F-1 visas when those students use their freedom of speech to express opinions that the government does not like—such as expressing support or empathy for Palestinian people, or criticizing Israel's actions regarding Palestine or the conflict in Gaza.

Plaintiffs argue that the provisions of the Immigration and Nationality Act … that the government relies on for its authority to cancel student visas and initiate deportation proceedings are unconstitutional…. [Those provisions are that an alien may be deported] if "… the Secretary of State personally determines that the alien's [presence] would compromise a compelling United States foreign policy interest" … [and that] "[a]fter the issuance of a visa or other documentation to any alien, the consular officer or the Secretary of State may at any time, in his discretion, revoke such visa or other documentation."

The court concluded that the First Amendment generally fully protects resident aliens pretty much the same way as it protects aliens:

The First Amendment acknowledges no "distinction between citizens and resident aliens." The right to freedom of speech, and its correlative protection from government retribution based on hostility towards speech, has generally been accorded to noncitizens living in the United States. Am.-Arab Anti-Discrimination Comm. v. Reno ("AADC") (9th Cir. 1995); Bridges v. Wixon (1945) ("Freedom of speech and of press is accorded [to noncitizens] residing in this country.").

In AADC, the Ninth Circuit held the First Amendment prohibits deporting aliens for protected speech. As the court explained, "The Framers explicitly recognized that aliens within this country participate in a reciprocal relationship of societal obligations and correlative protection. 'As [aliens] owe, on one hand, a temporary obedience, they are entitled, in return, to their protection and advantage.'" Therefore, "the values underlying the First Amendment require the full applicability of First Amendment rights to the deportation setting." After all, "[i]f aliens do not have First Amendment rights at deportation, then their First Amendment rights in other contexts are a nullity, because the omnipresent threat of deportation would permanently chill their expressive and associational activities."

For reasons I'll explain below, I think this decision, like AAUP v. Rubio (D. Mass. 2025), is a plausible interpretation of the First Amendment precedents, but not the only plausible one. We'll likely know more when the First Circuit decides the appeal in that case, and then later when the Ninth Circuit decides the likely appeal in this one. And I expect that the matter will get to the Supreme Court if at least one appellate court rules in favor of the First Amendment claimants. Meantime, more from the opinion:

The government argues that noncitizens present in the United States have "reduced" First Amendment protection that "varies" based on an "ascending scale." The government fails to cite any case applying their purported "ascending scale" doctrine to lawfully present noncitizens' First Amendment rights. The Ninth Circuit, considering similar arguments, held it is an "uncontested proposition" that student visa holders in the United States can assert claims under the First Amendment. Ibrahim v. Dep't of Homeland Sec. (9th Cir. 2012) (further holding that the plaintiff, a Stanford student, whose student visa was revoked while traveling outside the United States, could assert First Amendment claims). Indeed, the government does not explain what First Amendment protections it believes are accorded noncitizens – it only states that whatever "reduced" First Amendment rights "nonimmigrant visa-holders" may have are insufficient for purposes of challenging the Revocation and Deportation Provisions.

{The government also relies on authority holding that noncitizens are subject to one unique speech abridgment: restrictions on financial contributions to federal election campaigns. The government chiefly points to then-Judge Kavanaugh's opinion in Bluman v. FEC (D.D.C. 2011). But Bluman did not hold that noncitizens have reduced First Amendment rights. Instead, it upheld the contribution restriction under a line of authority allowing the government "to bar [noncitizens] from voting, serving as jurors, working as police or probation officers, or working as public school teachers" because the activities are integral to "democratic self-government." The court reasoned that direct campaign expenditures "constitute part of the process of democratic self-government." Critically, Bluman explicitly cited Wixon as mandating that "resident aliens [are] protected by the First Amendment in the context of deportation." And the court explicitly cautioned that "speaking on issues of general public interest is a quite different context from participation in a political campaign for election."}

Some of the government's proffered authority involves exclusion or admissibility of noncitizens (i.e., refusal to permit entry) rather than removal of lawfully present noncitizens. See, e.g., ECF No. 84 at 17 (citing Dep't of State v. Muñoz (2024); Kleindienst v. Mandel (1972)). But the Supreme Court has explained that "[t]he distinction between an alien who has effected an entry into the United States and one who has never entered runs throughout immigration law." Zadvydas v. Davis (2001).

"The Supreme Court has consistently distinguished between aliens in the United States and those seeking to enter from outside the country, and has accorded to aliens living in the United States those protections of the Bill of Rights that are not, by the text of the Constitution, restricted to citizens." AADC; see also id. ("[W]e decline to extend Kleindienst to apply to the deportation context."). And the very authority the government relies upon confirms that "resident aliens [are] protected by the First Amendment in the context of deportation." Bluman v. FEC (D.D.C. 2011) (Kavanaugh, J.) (citing Wixon). Plaintiffs' claims here do not concern questions of admissibility or exclusion, so the government's references to legal authority that addresses admissibility or exclusion instead of visa revocation or deportation, are not relevant.

As to the Fifth Amendment's prohibition against vague laws, it equally protects citizens and noncitizens, including in the immigration context. In Sessions, the Supreme Court held that because deportation is a "grave" and "drastic measure, often amounting to lifelong banishment or exile," the "most exacting vagueness standard" applicable to criminal laws also applies to immigration laws. Sessions v. Dimaya (2018) (plurality op.) (applying heightened vagueness test to invalidate an INA provision).

The court's decision fits well with the Ninth Circuit AADC case, as well as a similar decision from the Fourth Circuit, Parcham v. INS (4th Cir. 1985). But it doesn't discuss a different view set forth by Price v. INS (9th Cir. 1991) (which, to be sure, said this in the context of a decision to deny citizenship, not a deportation decision):

[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 challenging the denial of a visa to a foreigner were rejected -EV].

It also doesn't discuss another passage from then-Judge Kavanaugh's opinion in Bluman:

"The Court has further indicated that aliens' First Amendment rights might be less robust than those of citizens in certain discrete areas. See Harisiades v. Shaugnessy (1952) (First Amendment does not protect aliens from deportation because of membership in the Communist Party)."

To be sure, the First Amendment discussion in Harisiades 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)). But in its Due Process Clause discussion, Harisiades, spoke generally about the breadth of Congressional power to authorize deportation of aliens:

Under our law, the alien in several respects stands on an equal footing with citizens, but in others has never been conceded legal parity with the citizen. Most importantly, to protract this ambiguous status within the country is not his right but is a matter of permission and  tolerance. The Government's power to terminate its hospitality has been asserted and sustained by this Court since the question first arose….

It is pertinent to observe that any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.

The district court decision in this case (Stanford Daily) didn't discuss Harisiades, either, nor did it discuss the Supreme Court's decision in a follow-up phase of the AADC case, Reno v. AADC (1999), which held that the usual First Amendment protections against selective enforcement of laws based on speech generally didn't apply to deportation.

Colin McDonell, Conor Fitzpatrick, and Daniel Zahn (FIRE) and John Sinodis, Marc Van Der Hout, and Oona Cahill (Van Der Hout, LLP) represent plaintiffs.