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

Abstract

Although many unauthorized immigrants have become politically active in campaigning for immigration reform, their ability to speak out publicly may depend more on political discretion than on the constitutional protections that citizens normally take for granted. Potential threats to immigrant free speech may be seen in three areas of law. First, the Department of Justice has made a broad claim that immigrants who have not been legally admitted to the country have no First Amendment protection at all. Second, the Supreme Court has approved broad prohibitions on non-citizens spending money on speech that is related to electoral campaigns. Third, the Court has indicated that the federal government might, in its discretion, act to deport immigrants because of their political activities. The Supreme Court should revisit these questions because current case law is in tension with other principles of free speech law, especially the prohibition on identity-based speech restrictions as articulated in Citizens United v. FEC. As the Court explained, the First Amendment protects the rights of marginalized people to have a voice and does not allow the government to prefer some speakers over others based on their identity.