President Trump is taking advantage of an unsettled aspect of the law.
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.
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.)
