Civil Rights

Do Immigrants Have Free Speech Rights?

By E.A. Gjelten, Author and Editor
U.S. residents are generally entitled to freedom of expression, regardless of their citizenship status. But the federal government may have the right to select undocumented immigrants for deportation (removal) proceedings because of their opinions.

The language in the First Amendment to the U.S. Constitution doesn’t make a distinction between citizens and noncitizens when it guarantees the right to freedom of expression. This important right protects actions like taking part in demonstrations, publicly expressing opinions critical of the current government, and even burning the U.S. flag as a protest. Still, it’s not clear whether undocumented immigrants can freely exercise their First Amendment rights without fear of deportation.

Freedom of Expression for Legal U.S. Residents

The U.S. Supreme Court has consistently said that noncitizens living in this country have free speech rights. (See, for example, Bridges v. Wixon, 326 U.S. 135 (1945).) However, the Court has approved legal restrictions on political contributions (a form of expression) by people who aren’t either citizens or permanent residents (green card holders). That would include people who are here on temporary work, student, tourist, or other "nonimmigrant" visas. (See 52 U.S.C. § 30121; Bluman v. Federal Election Commission, 800 F.Supp.2d 281 (D.C. Cir. 2011); affirmed, 565 U.S. 1104.)

Grey Area for Undocumented Immigrants

The federal government has claimed in legal proceedings that people who aren’t in this country legally have no rights under the First Amendment, so they shouldn’t be able to sue a federal detention center for violating their free speech rights. But so far, the Supreme Court has never directly ruled on the question of whether free speech protections apply to undocumented immigrants.

Deportation as Censorship?

When people talk about free speech rights, they’re usually referring to the right to be free from government censorship, criminal punishment, or civil lawsuits based on something they said or wrote. But immigrants face the possibility of a different penalty for speaking their minds or being politically vocal: being deported.

As early as 1904, the Supreme Court said that the federal government could single out immigrants for deportation because of political activities that would otherwise be protected speech (Turner v. Williams, 194 U.S. 279 (1904)). Nearly 100 years later, the Court decided that residents who were in the country illegally didn’t have a constitutional right to claim that they’d been targeted for deportation because of their political affiliations. However, the Justices suggested they might rule differently in a case involving “outrageous” discrimination in immigration enforcement. (Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999).) It remains to be seen what the Supreme Court will decide if and when it hears a case like that.

Talking With a Lawyer

Immigration law is complicated, confusing, and changing all the time. If you’re worried about potential deportation, you can start by learning more from one of Nolo’s articles on deportation or removal proceedings. But if you’re an immigrant dealing with a possible violation of your First Amendment rights, it’s probably a good idea to talk with an immigration lawyer or an attorney experienced in both civil rights and immigration law.

Go to main FAQ page on the First Amendment and free speech.
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