Noncitizens and the First Amendment: It’s Complicated

Stanford Daily v. Rubio

​Does the First Amendment’s protection of free speech extend to non-citizens? To paraphrase Avril Lavigne’s old hit, it’s complicated.
 
In this era of rising immigration enforcement, the speech rights of legal visitors to the United States have suddenly become an acute issue. The latest test case comes from The Stanford Daily and two unnamed legal resident noncitizens and student journalists who are suing Secretary of State Marco Rubio and Secretary of Homeland Security Kristi Noem for what they see as the chilling effect administration policies are having on their freedom of expression.
 
“As an independent student paper whose mission is to represent the voices of the Stanford community, this fear of the government directly impacts the quality of our work,” the editors declared. Given that a foreign student could be arrested and expelled from this country and have his or her education terminated, that is a real and palpable fear.
 
The Foundation for Individual Rights and Expression (FIRE) is representing the student newspaper of Stanford University (here is the full complaint and this description of the lawsuit and its background). FIRE has also published a full-throated response to critics in defense of this lawsuit. It’s part civics lesson, part philosophical exposition, and well worth reading.
 
Given, however, that this suit is at the intersection of First Amendment rights and laws concerning foreign policy this case is, as we said, complicated.
 
The courts have periodically wrestled with the extent to which constitutional rights apply to non-citizens since the 1880s. Foreign visitors can certainly have their constitutional rights violated, as in the case of Tufts Ph.D. student Rümeysa Öztürk’s right to due process. After this student from Turkey added her name to an opinion-editorial that made moderate criticisms of Israel, Öztürk was arrested by a group of masked federal agents dressed in all black who whisked her off, for a time, to a detention facility in Louisiana.
 
Understandably, the young woman at first thought she was being kidnapped, not arrested.
 
Öztürk was later released by an international outcry (including from 27 Jewish groups, whose amicus brief accused the government of using antisemitism “as pretext for undermining core pillars of American democracy, the rule of law, and the fundamental rights of free speech and academic debate”).
 
Thanks to cases like this, overreach may end up being the Oxford English Dictionary’s Word of the Year for 2025. It’s happened in Öztürk’s case and elsewhere, and FIRE’s lawsuit suggests it may be happening again. Yet FIRE’s Stanford Daily case is less clear cut.
 
It’s complicated in part because the suit isn’t about a specific incident. Instead, the focus is the interpretation of two foreign policy provisions that have been in place for 60 years, since the passage of the Immigration and Nationality Act:

• One provision allows Secretary Rubio to deport noncitizens if he “personally determines” their speech “compromises a compelling foreign policy interest.”

 

• The other enables the secretary to revoke the visa of a noncitizen “at any time” for any reason.

FIRE’s lawsuit seems to be aiming for a declaration of unconstitutionality if the reason for deportation is clearly protected First Amendment speech. And therein lies another complication: Unlike citizens, non-citizens can be deported if their speech is deemed to fall into one of the categories historically unprotected by the First Amendment, such as incitement, true threats and obscenity.
 
Finally, protected categories of speech are simply less robust in reach when it comes to noncitizens:
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• Immigration law can weaponize otherwise lawful speech against non-citizens, depending on whether the expression is interpreted as advocating for terrorism or anti-U.S. policies. Consider Secretary Rubio’s justification for arresting protestor Mahmoud Khalil, for posing “potentially serious adverse foreign policy consequences for the United States.”

 

• As the Freedom Forum points out, “The Constitution does not specify whether the First Amendment applies only to citizens. Rather, those who wrote it talked about ‘the people.’”

Columbia’s Knight First Amendment Institute offers an exhaustive analysis of these points. In sum, the law governing potential actions against resident aliens grants the government sweeping power. With such power comes the responsibility to use it with wisdom and restraint.

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