The Trump administration has tried in recent weeks to deport several immigrants who spoke out against Israel. First, it arrested Mahmoud Khalil, a green-card holder who’d joined pro-Palestinian protests at Columbia University. Officials also arrested a Georgetown University researcher with an academic visa. They deported a nephrologist at Brown University, even though she had a valid visa. Another student activist at Columbia fled to Canada after immigration officials came to her home.
President Trump has said that more arrests will come — a test of the government’s ability to deport people with views that he disagrees with.
How is this legal? The First Amendment, after all, protects freedom of speech in nearly absolute terms. It allows people to espouse even the most unsavory views, including support for genocide, and face no criminal penalty as a result.
But Trump is taking advantage of a genuinely unsettled aspect of the law: Does the Constitution protect noncitizens’ freedom of speech? Today’s newsletter will look at the arguments.
Trump’s case
The Supreme Court has said that the First Amendment applies to noncitizens in the United States when it comes to criminal and civil penalties. But those protections don’t necessarily apply to deportations, the court has found. The federal government has nearly absolute power over immigration, including its ability to deport noncitizens; it gets to decide who comes and then stays in this country, potentially at the expense of constitutional rights.
In 1952, for example, the Supreme Court ruled that the government could deport immigrants for Communist Party membership without violating the First Amendment. (I experienced this firsthand: A government official asked me if I was a communist during my interview to become a U.S. citizen in the 2000s.)
More specifically, administration officials cite a 1952 statute that lets the government deport immigrants, even green-card holders, for views that hamper U.S. foreign policy. The administration says that Khalil and others supported Hamas and Hezbollah, designated terrorist groups. That supposed support seems to be limited to the immigrants’ advocacy — social media posts, fliers, protests, attendance at a Hezbollah leader’s funeral. The government has not accused them of sending money or other assistance to those groups. It says that speech is enough to justify deportation.
Last week, the administration leveled new accusations against Khalil. It said that he failed to disclose his membership in pro-Palestinian groups or his work for the British government when he applied for a green card. The hastily added accusations appear to be an attempt to sidestep free speech concerns about his case, my colleague Jonah Bromwich wrote.
Immigrants do have due process rights, and Khalil’s case is currently going through the courts. But the administration has tried to bypass even those protections in other cases. It cited the Alien Enemies Act of 1798 to deport hundreds of Venezuelan migrants without any kind of hearing in court. It claimed, but did not prove, that these migrants were members of criminal gangs supported by the Venezuelan government.
The administration’s efforts to punish speech and bypass due process would be blatantly unconstitutional for a U.S. citizen. But for immigrants, the legality of the government’s actions is less certain.
The opposition
This approach leaves immigrants with no practical free speech rights, Nadine Strossen, former president of the A.C.L.U., told me. The First Amendment allows us to speak freely without fear of legal retribution. But if an immigrant’s political advocacy gets him deported, he does have to worry about retribution — and may choose not to speak at all.
While conservatives may feel empowered now, their approach could backfire in the future. Suppose that conservative immigrants — say, Trump-supporting Venezuelans, known as MAGAzuelans — attend a Make America Great Again rally. A Democratic administration could claim that participants of the rally supported an enemy of the United States by, for example, opposing aid to Ukraine. That administration could then try to deport the immigrants for their speech.
This is the slippery slope of exceptions to free speech and other constitutional rights: What counts as a violent act? What is a terrorist group? Who is an enemy of the United States? What does it mean to support them? A president can twist the answers to these questions to fit any agenda and go after people with opposing views, bypassing fundamental rights.
What’s next
The Supreme Court has not directly addressed the issue of immigrants’ free speech rights since the Red Scare of the 1940s and ’50s. Lower courts have, but they have been divided. As the Trump administration tests the law, the Supreme Court will likely have to chime in once again.
In the meantime, immigrants have reason to worry. Already, college officials have warned immigrant students that nobody can protect them. In that sense, the Trump administration’s approach is already working: It has likely persuaded immigrants to stay quiet about causes that the president disagrees with.
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