NEW YORK—The Knight First Amendment Institute at Columbia University today published two newly released U.S. Immigration and Customs Enforcement (ICE) memos that provide insight into how the First Amendment would limit recent proposals to revoke student visas and remove foreign nationals who express support for Hamas or criticize Israel’s response to Hamas’ attack. The Institute obtained the memos through a Freedom of Information Act (FOIA) lawsuit for records relating to the government’s ideological screening of immigrants and visitors at the border. The memos appear to have been drafted in connection with the Trump administration’s “extreme vetting” program.
“It turns out that government lawyers have considered at length whether proposals to remove people from the country based on their political speech are constitutional, and the answer is almost certainly no,” said Carrie DeCell, senior staff attorney at the Knight First Amendment Institute. “The First Amendment gives very broad protection to political speech, including to speech that may be controversial or offensive, and that protection extends to non-citizens as well as citizens in the United States.”
The recently disclosed ICE memos include
- “Constitutional Considerations Relating to Proposed Enhanced Vetting of Aliens in the United States for Counterterrorism Purposes,” which recognizes that non-U.S. persons in the United States have due process rights and “can invoke protections under the First Amendment and the Equal Protection Clause.” Available here.
- “Inadmissibility Based on Endorsing or Espousing Terrorist Activity: First Amendment Concerns,” which was reviewed and revised by the White House Office of Legal Counsel and recognizes it is likely that, “to the extent the government seeks to regulate the content of speech of aliens [in the United States] through its power to exclude or expel, its laws must meet the dictates of strict scrutiny—that is, be narrowly tailored to achieve a compelling government interest.” Available here.
“The First Amendment is meant to ensure that political debate in this country is open, uninhibited, and free from government interference,” said Alexia Ramirez, legal fellow at the Knight First Amendment Institute. “Deporting non-citizens on the basis of their political speech would end up chilling legitimate political debate about war, human rights, and foreign policy, and it would also be unconstitutional.”
The two ICE memos confirm that proposals to revoke the visas of student demonstrators on the basis of their political speech would be subject to strict scrutiny and almost certainly held unconstitutional. So too would proposals to use the Immigration and Nationality Act’s security-related ground of inadmissibility to remove individuals who express support for Hamas. Regulations that target political speech on the basis of viewpoint almost never survive strict scrutiny.
In 2017, the Knight Institute filed a FOIA lawsuit seeking documents concerning the government’s claimed authority to exclude or remove non-citizens from the United States based on their speech, beliefs, and associations. In September 2019, the district court ordered ICE to conduct a more thorough search for responsive records, resulting in the release of the two records published today. Read more about Knight Institute v. DHS here.
Documents obtained through this litigation are available on the Knight Institute’s website here.
Lawyers on the case include DeCell and Ramirez of the Knight First Amendment Institute. Catherine Crump and Megan Graham of the Samuelson Law, Technology & Public Policy Clinic at UC Berkeley School of Law previously served as co-counsel.
For more information, contact: Adriana Lamirande, [email protected].