Tuesday, July 14, 2020


Article Index

G. Speech

The text of the First Amendment bars Congress from passing any law abridging free speech without limitation as to the status of the speaker. The Supreme Court has interpreted this language to protect a variety of expressive activity beyond pure speech, from artistic expression to association and advertising, to name just a few. In the early twentieth century, the Court occasionally seemed to employ a weaker form of First Amendment scrutiny in cases involving non-citizens in deportation and exclusion proceedings. However, by mid-century, the Court stated unequivocally that “[f] reedom of speech and of press is accorded [to] aliens residing in this country.” Thus, in Bridges v. Wixon, the Court found that the First Amendment protected the former communist affiliation of the Australian labor organizer, Harry Bridges. Although in Harisiades v. Shaughnessy the Court later rejected a broad First Amendment challenge to the statute that made Bridges deportable, it nowhere stated in its decision that non-citizens have lesser First Amendment rights than citizens.

Contemporary decisions cast some doubt on Bridges's holding that non-citizens enjoy full First Amendment protection. In Reno v. American-Arab Anti-Discrimination Committee, the Court rejected a selective enforcement claim raised by members of the Popular Front for the Liberation of Palestine, who contended that the government had singled them out because of their affiliation with an unpopular group. The Court found that it lacked jurisdiction to assess their claim, but nonetheless opined that where the Government has a legitimate reason to deport an unauthorized immigrant, “[T] he Government does not offend the Constitution by deporting him for the additional reason that it believes him to be a member of an organization that supports terrorist activity.” The implication of American-Arab Anti-Discrimination Committee is that non-citizens without lawful status might be entitled to less First Amendment protection than lawful residents.

This was essentially the holding of a D.C. District Court panel in Bluman v. Federal Election Commission. In Bluman, the court considered a provision of the McCain-Feingold campaign finance reform law barring non-citizens other than lawful permanent residents from making campaign contributions. The court read Harisiades as support for the proposition “that aliens' First Amendment rights might be less robust than those of citizens in certain discrete areas.” It then relied on the political participation line of cases to find that “[i] t is fundamental to the definition of our national political community that foreign citizens do not have a constitutional right to participate in, and thus may be excluded from, activities of democratic self-government.” Although the court purported to apply strict scrutiny to the provision, it rejected arguments that it was seriously over- and under-inclusive as to its alleged purpose of limiting foreign influence over American politics. Ultimately, the court was convinced that LPRs enjoy a special place in the American polity that justified affording them what it considered a membership right.

The Supreme Court affirmed Bluman last term without comment, thus avoiding the messy task of distinguishing Bluman from Citizens United v. Federal Election Commission, where it had found that corporations have a free speech right that insulates them from governmental regulation of their contributions. Corporate non-persons now have more rights in this arena of First Amendment law than non-citizen persons. The justification for this departure can only be that the courts have found campaign contributions to be a membership right and that corporations are members, but non-citizens other than LPRs are not.

Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law