Caleb Yong (Yale University – Law School) has posted First Amendment Coverage in the Immigration Context on SSRN. Here is the abstract:
The Trump administration has announced and carried out a campaign of ideological deportation and exclusion. It has screened applications for admission to the country, and sought the deportation of noncitizens living in the United States, based on the affected noncitizens’ expression of pro-Palestinian messages and viewpoints. The critical issue in any First Amendment challenge to such ideological deportation and exclusion grounds is the threshold question of whether the First Amendment “covers” noncitizen speech in the deportation and exclusion contexts; when speech is not covered, courts decline to review First Amendment claims or apply deferential review instead of heightened scrutiny.
This Article delineates, first, where prevailing precedent draws the boundaries of First Amendment coverage in the immigration context. It argues that while Supreme Court precedent makes clear that resident noncitizens’ speech is covered in the domestic regulatory context, existing case law is deeply unsettled regarding coverage of resident noncitizens’ speech in the deportation context. On the one hand, the Court has implicitly affirmed First Amendment coverage when it has reviewed challenges to ideological deportation grounds. On the other hand, the Court more broadly embraces the plenary power doctrine, which precludes constitutional challenges to substantive deportation grounds. The Court has more clearly invoked the plenary power doctrine to reject First Amendment coverage in the exclusion context. Even when exclusion decisions burden American citizens’ listener rights, the Court has prescribed highly deferential review.
Given the ambivalence of existing precedent concerning First Amendment coverage in the deportation context, and scholars’ persistent and persuasive criticisms of the plenary power doctrine, this Article moves beyond prevailing doctrine to theorize the justified boundaries of the First Amendment’s coverage in the immigration context. Reasoning from the interests grounding the First Amendment’s protections for expressive freedom and the duties that the U.S. government owes to American citizens and noncitizens to serve those interests, it elaborates an account of citizens and noncitizens’ rights in relation to noncitizens’ freedom of expression in the United States. This Article argues that resident noncitizens and American citizens alike have justified rights claims, grounded in their interests as speakers and listeners respectively, that the U.S. government protect resident noncitizens’ enjoyment of free expression in the United States. It therefore urges that First Amendment coverage should extend to the deportation context. This Article also contends that American citizens have rights, grounded in their interests as democratic citizens to hear from and speak with noncitizens from abroad, that the U.S. government respect the expressive freedom of noncitizens seeking admission. From this, it concludes that First Amendment coverage should encompass the exclusion context.