When Immigrants Speak: The Precarious Status of Non-Citizen Speech Under the First Amendment

INTRODUCTIONIn the 2016 presidential campaign, nearly every candidate had something to say about immigrants. What if immigrants join these debates and speak for themselves? Do they have a constitutional right to participate in American political discourse, or may they do so only by the grace of those in power? Although the First Amendment clearly protects the right of citizens to talk about immigrants, free speech jurisprudence is less clear about whether immigrants may speak up on their own behalf. This article highlights the fact that immigrants' freedom of speech is on insecure legal ground, in large part because the Supreme Court has sent contradictory signals about it. If the White House were to be occupied by a president who is hostile to immigrants and intolerant of dissent, immigrant activists could not be confident that the courts would protect their expressive liberty.The proposition that immigrant freedom of speech is in doubt may be surprising given the surge in public political activism by immigrants in recent years. Many of these activists make their unlawful presence in the United States a central part of their message. The campaign for the Dream Act mobilized unauthorized immigrants who were brought to the country as children.1 In a nationally televised address, President Obama highlighted the story of Astrid Silva, a Nevada-based activist who, in the President's words, came to the United States with nothing more than "a cross, her doll, and the frilly dress she had on" and who now has multiple university degrees.2 Ms. Silva later spoke in support of Hillary Clinton at the 2016 Democratic National Convention ("DNC") while other unauthorized immigrants were given other roles at the DNC.3 A Google image search for "immigrant activism" finds photographs of protesters holding up signs identifying themselves as "undocumented, unafraid." One protest initiative called the "No Papers, No Fear Ride for Justice" organized a tour of immigrant activists on an "UndocuBus."4 There are bloggers who speak openly about their immigration situation and advise others in similar predicaments about how to pursue educational and career opportunities.5 A Pulitzer Prize winning journalist, Jose Antonio Vargas, produced a film for CNN called Documented: A Film By An Undocumented American.6 On the surface, it certainly seems that even unlawfully present immigrants feel that they can talk freely about their situations and add their voice to the national debate about immigration policy.Yet, although such activism has blossomed, the Department of Justice ("DOJ") has argued in federal court that non-citizens who were not legally admitted to the country have no claim to protection under the First Amendment.7 The Supreme Court affirmed a decision holding that federal election law may prohibit immigrants from making even small expenditures to speak for or against candidates in an election.8 The Supreme Court has also affirmed the power of the federal government to single out certain immigrants for deportation for political activities that would have qualified as protected speech but for their immigration status.9 It may be that immigrant activism has flourished in recent years not because the activists had a clear legal right to speak but because the Obama Administration has chosen not to try to silence them. A future president may be able to use this discretion very differently. Although current law is somewhat more protective of free expression for legal permanent residents than for other non-citizens in the United States, it is not currently clear whether this is a matter of constitutional law or merely a statutory choice that Congress could opt to revoke.10In March 2016, an Egyptian student legally in the United States was forced to leave the country after a social media outburst against presidential candidate Donald Trump, highlighting how immigrant speech is uniquely vulnerable to suppression.11 The student, Emadeldin Elsayed, wrote on his Facebook page: "I literally don't mind taking a lifetime sentence in jail for killing this guy, I would actually be doing the whole world a favor. …