How have US courts treated First Amendment defences for non‑US nationals in national security prosecutions?
Executive summary
United States courts have repeatedly recognized that many First Amendment protections extend to non‑U.S. nationals lawfully present in the country, yet have carved out important limits where immigration control, exclusion at the border, or asserted national‑security interests are implicated — producing a doctrinal split between robust protection for resident speech and high deference to the political branches when admission, exclusion, or national security policies are at issue [1] [2]. Lower courts and agencies also treat removal and national‑security prosecutions differently from ordinary criminal cases, applying civil immigration standards, plenary‑power principles, and sometimes heightened deference that can undermine free‑speech defenses [3] [4].
1. The baseline: courts recognize First Amendment rights for lawfully present noncitizens
Since at least Bridges v. Wixon, courts have treated resident aliens as entitled to core First Amendment freedoms, and multiple scholarly and practical sources echo that legal baseline: “once situated lawfully in the United States, aliens enjoy First Amendment rights,” a principle cited in encyclopedic overviews and law‑review accounts [1] [5]. Scholars and advocates point to recent district court rulings — for example AAUP v. Rubio — that explicitly reinforced the proposition that noncitizens lawfully present can invoke the First Amendment against government action [6] [7].
2. The exception: admission and exclusion at the border draw strong deference
The Supreme Court has long signaled that foreign nationals seeking admission or those located outside U.S. territory have far weaker constitutional claims, and courts defer heavily to the Executive and Congress in exclusion decisions under the plenary‑power doctrine (Kleindienst v. Mandel and related precedents) — a rule repeatedly summarized in Supreme Court compilations and constitutional annotations [3] [2] [4]. Kleindienst means that when the political branches give a “facially legitimate and bona fide” reason to exclude a speaker, courts will usually not substitute First Amendment balancing for the Executive’s foreign‑policy judgment [3] [4].
3. National‑security prosecutions and deportation: civil labels, different standards
When speech becomes entangled with national‑security prosecutions or grounds for deportation, courts often treat removal as a civil process and apply distinct standards that can limit remedies available for alleged First Amendment violations; the Justia and law‑review literature emphasize that protections available in criminal trials do not always carry over into removal hearings [3] [8]. Courts have sometimes allowed national‑security rationales to outweigh resident aliens’ speech claims, but they have also struck down agency secrecy and exclusionary policies when access or due process is plainly infringed [1] [9].
4. Recent administrations and litigation: tension between enforcement and First Amendment limits
Contemporary episodes — including government memos on vetting and statements about revoking visas for political speech, and ICE recognition that non‑U.S. persons “can invoke protections under the First Amendment” — show a tug of war: agencies claim expansive removal tools for security, while courts and institutional memos caution that core expressive rights constrain deportation and revocation decisions [10] [11]. News reporting and legal commentary around cases like Khalil and visa‑revocation efforts illustrate how courts may pause executive action and subject it to judicial review when factual records show only protected advocacy rather than genuine security threats [12] [11].
5. Doctrinal fault lines: territoriality, “the people,” and judicial restraint
The Supreme Court’s stray language in Verdugo‑Urquidez raised questions about whether the phrase “the people” in the Bill of Rights excludes aliens outside the national community, and lower courts and scholars continue to debate territorial and associational tests for extending rights — a dispute tracked in Harvard Law Review and other scholarly outlets [7] [13]. That doctrinal ambiguity produces inconsistent outcomes: resident aliens usually win First Amendment protection, but extraterritorial actors, foreign affiliates, and visa applicants face constrained relief and high judicial deference [13] [4].
6. Practical effect and competing agendas
The net effect is a cautious protection: courts protect noncitizen speakers when they are inside U.S. borders and the speech is plainly within First Amendment coverage, yet they often defer to national‑security and immigration rationales that are politically salient — a posture that serves both institutional security claims and executive prerogatives while leaving open litigation pathways for advocacy groups and courts to check overreach [1] [10]. Reporting and scholarship indicate both an expansion of recognition for resident noncitizens’ speech rights and enduring exceptions that reflect hidden institutional agendas to preserve immigration control and foreign‑policy discretion [3] [8].