Anyone who is in the United States legally—regardless of citizenship status—has a basic right to freedom of speech. However, it’s not clear whether undocumented immigrants can freely exercise their First Amendment rights without fear of deportation.
This article explains why immigrants are generally entitled to the same First Amendment rights as citizens, the limited exceptions to those rights, and how U.S. law might apply to undocumented immigrants.
Freedom of Expression for Legal U.S. Residents
The First Amendment does not make a distinction between U.S. citizens and noncitizens (such as temporary visitors on visas) when it guarantees the right to freedom of expression. This might include actions like taking part in demonstrations and publicly expressing opinions critical of the current government. The U.S. Supreme Court has consistently held that noncitizens living in this country have free speech rights. (See, for example, Bridges v. Wixon, 326 U.S. 135 (1945).)
At the same time, however, the high 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.)
And the Trump Administration has been testing the limits of noncitizens' free speech rights, by arresting visa holders who have, for example, participated in pro-Palestinian protests or other forms of expression on grounds that this violates an executive order. It has also instituted heightened vetting for student visas, with a warning that visas will be denied to those who "bear hostile attitudes toward our citizens, culture, government, institutions, or founding principles." This could be broadly construed.
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 (in the relevant court case) 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.
And of course, any undocumented immigrant is at risk of deportation simply by virtue of their lack of immigration status in the United States.
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 are 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.