First Amendment Alienation: Speech Rights of Non-U.S. Citizens

Finishing up our summer newsletter season is Hasala Ariyaratne’s contribution about speech rights for non-U.S. citizens! Thanks Hasala and to all of our summer fellows for their newsletter issues!
   
            Imagine being in the United States for fifteen years and you are ordered to be deported without a hearing because of your speech against the immigration system? This is what happened to immigrant rights activist Ravi Ragbir whose deportation proceeding was initiated seemingly because he exercised his First Amendment rights. Ragbir was fortunately able to settle his First Amendment retaliation lawsuit against the U.S. government and was granted three years of deferred action. However, other non-citizens who exercised their First Amendment rights have not been so fortunate. Non-citizens face significant challenges when exercising their First Amendment rights, making it more important than ever for American courts to protect those rights. 
 
            The First Amendment protects free expression in the United States. But it’s unclear whether it provides non-U.S. citizens with the same types of protections as U.S. citizens. The text of the First Amendment itself refers to “people” as opposed to “citizens”. The Supreme Court in Verdugo-Urquidez, a Fourth Amendment case, defined “people” as “a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community”. Although this definition is not entirely clear, I would argue that presence in the United States is sufficient for an individual to receive the protection of the First Amendment, since that individual is subject to the United States Constitution and American laws by being in the United States.
 
            One challenge for non-citizens in exercising their First Amendment rights comes from the Supreme Court’s plenary power doctrine on immigration. This doctrine gives Congress near unlimited power over immigration law and hardly allows for judicial review. This congressional plenary power doctrine combined with the Supreme Court’s deference to the executive branch in prosecutorial decisions on immigration, makes it dangerous for non-citizens to exercise their First Amendment rights. For example in Kleindienst, the Supreme Court held that the government did not violate the First Amendment rights of students and scholars in the United States by denying a visa to a scholar they wanted to hear from. This scholar was twice previously granted visas to enter the United States. The Patriot Act of 2001 is another example where the government treats non-citizen speech differently. The Patriot Act allows for summary deportation of non-citizens based on the attorney general’s view on whether the individual is a threat to national security. This in practice chills non-citizen speech because such policies usually target people based on national origin. 
 
            Even if non-citizens in theory enjoy the protections of the First Amendment, in practice it may not be so easy to exercise those First Amendment rights as they navigate immigration processes. First, immigrants on temporary visas will need to return to their home country in the future for visa renewal. There have been increasingly invasive visa and immigration entrance procedures, such as the U.S. government requiring social media information, that may chill otherwise protected core political speech (such as speech critical of the U.S. government). Very little is known about how the government is using social media information in making immigration determinations. Second, the plenary power that Congress has over immigration is even more pronounced in foreign countries, where the U.S. embassy visa decisions are not subject to review by independent courts under the consular nonreviewability doctrine. Third, even if a non-citizen is present in the United States, the risk of deportation for speech that the government may consider to be a risk, is a massive deterrence on the free exercise of speech. Finally, speech that is protected in the United States may be punishable in the non-citizen’s home country (this of course is not the fault of the United States government) and therefore the non-citizen may not fully exercise their speech rights. 
 
            Despite such challenges, there have been many instances of non-citizens exercising their First Amendment rights and making a difference. DACA recipients in particular, have shown tremendous courage in exercising their First Amendment rights, even at the risk of deportation. Such expression is the type of First Amendment speech that is regularly targeted by the government and that is precisely why it deserves the highest protection. It is time for American courts to recognize that the First Amendment protects the rights of non-citizens without any reservations, and to take these rights into account in the context of visa renewal and other similar immigration procedures.
   
Hasala Ariyaratne is a J.D. Candidate and Technology Law and Policy Scholar at Georgetown University Law Center. He is interested in First Amendment law and how it is applied in today’s technological landscape. Prior to law school, Hasala worked as an analyst for a technology company. He earned his Bachelor of Science in Business and Engineering from Drexel University in Philadelphia. 

Learn more about IfRFA’s cohort at: https://ifrfa.org/fellows.