Michael Kagan (University of Nevada, Las Vegas, William S. Boyd School of Law) has posted Do Immigrants Have Freedom of Speech? (California Law Review Circuit, 2015, Forthcoming) on SSRN. Here is the abstract:
The Department of Justice recently argued that immigrants who have not been legally admitted to the United States have no right to claim protections under the First Amendment. If the DOJ argument is right, then most of the 11 million unauthorized immigrants in the U.S. could be censored or punished for speaking their minds – as many of them have in support of comprehensive immigration reform and the Dream Act. This Essay explores the complicated and conflicted case law governing immigrants’ free speech rights, and argues that, contrary to the DOJ position, all people in the United States are protected by the First Amendment. Moreover, it argues that for reasons that have not been widely appreciated, Citizens United v. FEC offers significant doctrinal support for immigrant speech rights, because it articulates a strong rule against speech discrimination based on identity rather than content.
Interesting. From an originalist perspective, it seems clear that "incorporation" of the freedom of speech would have to be justified on the basis of the privileges or immunities clause of the 14th, which protects only citizens. But there is no similar limitation on the First Amendment itself. But from the point of view of a public meaning originalist, it seems difficult to conceive of an argument that that the distinction between citizens and noncitizens is baked into the communicative content of the First Amendment itself.