US Citizens Don’t Have First Amendment Rights If Noncitizens Don’t

Controlling noncitizens' speech involves controlling US citizens' speech.

I just had a disturbing conversation with a green card holder—a legal permanent resident of the United States. He had asked if he thought traveling internationally was wise for him as someone who has criticized President Trump and Israel, and whether he should avoid any further criticism and/or remove any past criticism from his social media before he travels.

In a free society, the answer would be: “You should say whatever you want, criticize whoever you want, and not worry about traveling because the government cannot punish you for what you say.” But until the Supreme Court reaffirms that the First Amendment protects noncitizens in the United States from banishment for their speech—and until President Trump obeys the Supreme Court—we do not live in a free country.

The Trump administration is revoking green cards and visas solely based on speech. Individuals are explicitly being targeted based on "beliefs, statements, or associations" that are “lawful within the United States” but which Secretary of State Marco Rubio has deemed “adverse to the foreign policy of the United States.” Even authoring an op-ed criticizing a foreign government’s foreign policy can now trigger visa revocation. The administration is also searching electronic devices at ports of entry for evidence of “adverse” views.

This reality meant that I had to tell the green card holder that it would be prudent to delete any criticism and refrain from further criticism if he wanted to limit the possibility of becoming a target and be able to stay in America with his family. When I say I had to say this, I mean it was the direct result of government intervention into society. I could not encourage him to speak his mind. I couldn’t, in good faith, encourage him to criticize President Trump, though I believe there is much to criticize. It was the first time in my life that I felt the government had coerced me (a US citizen) into suppressing what I wanted to say.

Every restriction on the free speech rights of noncitizens is also a restriction on the free speech rights of Americans. For one thing, free speech is a protection for listeners as much as it is for speakers, and in that way, it undermines everyone’s right to hear when the government shuts down anyone’s right to speak freely.

The threat to US citizens becomes even more acute when they know a noncitizen. Should you bring a noncitizen family or friend to a protest? Would you feel as confident protesting the abuses of the US government or an allied foreign government if you were married to a legal permanent resident? Should you share articles critical of the administration’s foreign policy with them? What happens if they reshare, comment on, or like your post?

I know noncitizen researchers who study trade, immigration, national security, and other matters of intense public interest and debate. Should they and their employers be concerned about publishing research that Secretary of State Marco Rubio could deem “adverse to the foreign policy interest of the United States”? Unfortunately, the answer may very well be yes.

Whether it is a serious threat or not, the administration’s attack on free speech has forced people to seriously consider questions that they should never have to even think about in a free society. As American Enterprise Institute’s Stan Veuger has noted, there is no one who is properly “off-limits” from the speech crackdown:

Every single person who knows a noncitizen in the United States will have to consider this problem—not just “adverse speech” according to this president right now but “adverse speech” according to any future president that wields the same power. Consider that none of the noncitizens targeted by the US government today would have had any way of discovering that the US government would start deporting people for what they said months ago. In fact, the immigration charges against these dissidents don’t even include any specific statements or actions.

This uncertainty about what is even prohibited is one reason why President Trump’s sister, U.S. District Judge Maryanne Trump Barry, declared that the law was unconstitutionally vague in 1996. She quoted the Supreme Court: “Living under a rule of law entails various suppositions, one of which is all persons are entitled to be informed as to what the State commands and forbids.” No one could ever predict precisely what conduct could be deemed “adverse to” US foreign policy in the future. Unfortunately, Judge Barry’s decision was overturned on technical grounds unrelated to her constitutional points, and the Supreme Court has never ruled on the issue.

Zooming out from those direct effects on speech, this assault on noncitizens undermines the moral and philosophical foundations that are necessary for a robust defense of free speech for US citizens. The administration’s defenders cannot explain why free speech is good for Americans but bad for noncitizens, so they just revert to the argument that the government has the power to crack down on dissident speech, so it should since it is obvious that we shouldn’t want “adverse” speech in America.

But once we accept that the government knows The Truth and should enforce The Truth with guns, why should its efforts be limited only to noncitizens? Clearing house of problematic noncitizen speakers won’t solve the problem of “bad speech” since the number of “deluded” US citizens outnumber the deluded noncitizens by an order of magnitude.

It is no surprise then that President Trump’s administration is threatening US citizen free speech rights in many other ways, such as threatening arrests of people who inform noncitizens of their constitutional rights, filing shakedown lawsuits against media companies, attacking law firms who defend unpopular clients, canceling contracts in states where governors have criticized Trump, threatening sanctions against media companies for negative coverage of him, banning disfavored media from the White House, and sanctioning federal contractors for use of the words “diversity, equity, or inclusion.”

The administration’s assault on noncitizen speech reveals a much deeper problem. A significant portion of the American public has simply forgotten the value of free speech entirely, and that’s the biggest threat to free speech of all.