Centering Noncitizens' Free Speech

• Publication year: 2022

Centering Noncitizens' Free Speech

Gregory P. Margarian
Washington University in St. Louis School of Law, gpmagarian@wustl.edu

Centering Noncitizens' Free Speech

Cover Page Footnote

Thomas and Karole Green Professor of Law, Washington University in Saint Louis School of Law. Thanks to Jason Cade and participants in the Georgia Law Review's 2022 symposium, Immigrants and the First Amendment: Defining the Borders of Noncitizen Free Speech and Free Exercise Claims; to participants in the Drexel University Kline School of Law's 2019 symposium, Not Your Father's First Amendment, where I presented some elements of this Essay in early form; and to Kate Griffin and Tim Zick.

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CENTERING NONCITIZENS' FREE SPEECH

Gregory P. Magarian^*

First Amendment law pays little attention to noncitizens' free speech interests. Perhaps noncitizens simply enjoy the same First Amendment rights as citizens. However, ambivalent and sometimes hostile Supreme Court precedents create serious cause for concern. This Essay advocates moving noncitizens' free speech from the far periphery to the center of First Amendment law. Professor Magarian posits that noncitizens epitomize a condition of speech inequality, in which social conditions and legal doctrines combine to create distinctive, unwarranted barriers to full participation in public discourse. First Amendment law can ameliorate speech inequality by promoting an ethos of free speech obligation, amplifying the voices of politically and socially disadvantaged speakers while encouraging more mainstream, advantaged audiences to hear those voices out. Centering noncitizens' free speech would establish a paradigm of free speech obligation. That paradigm would directly ensure noncitizens' First Amendment rights while also, by extension, strengthening speech protections for other groups afflicted by speech inequality—identity minorities, political dissidents, and social outcasts. As to immediate, particular outcomes, centering noncitizens' free speech would necessarily bar the government from deporting noncitizens in retaliation for their political speech and from imposing special constraints on individual noncitizens' spending to support candidates for public offices.

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Table of Contents

I. Introduction..................................................................1565

II. Speech Inequality and Noncitizens' Speech...........1567

A. SPEECH INEQUALITY'S SOCIAL AND LEGAL DIMENSIONS ..............................................................................1567
B. NONCITIZENS AS EXEMPLARS OF SPEECH INEQUALITY ..............................................................................1571

III. Transcending Speech Inequality............................1575

A. MEIKLEJOHN'S FIRST STEPS....................................1576
B. FREE SPEECH OBLIGATION......................................1578

IV. Listening to Noncitizens...........................................1580

A. POLITICAL DISSENT AND PROTEST AGAINST GOVERNMENT POLICIES..........................................1581
B. SPENDING IN ELECTION CAMPAIGNS.......................1586

V. Conclusion....................................................................1590

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I. Introduction

Noncitizens in the United States get the First Amendment's table scraps. Nearly all case law about First Amendment speech protections¹ deals with citizens. The Supreme Court has said little about noncitizens' expressive freedom.² Law reviews publish few articles that thoroughly address the subject.³ An optimistic way of viewing this state of affairs is that noncitizens' expressive freedom requires little or no elaboration because noncitizens clearly have the same First Amendment rights as citizens. Unfortunately, the Supreme Court has expressed enough ambivalence about noncitizens' First Amendment rights to cause worries that those rights are tenuous or incomplete.⁴

The great irony of this situation is that noncitizens played an outsized role in the birth of First Amendment law. The earliest First Amendment cases to reach the Supreme Court, just over a century ago, involved prosecutions of agitators against the United States' entry into World War I.⁵ Those defendants emerged from a left-wing political milieu heavily influenced by recent European immigrants. Indeed, when Justice Holmes made his famous pragmatic appeal to

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let ideas compete freely in pursuit of truth,⁶ he was arguing—unsuccessfully—to overturn convictions of five Russian-born noncitizens.⁷ First Amendment law emerged when it did for many reasons, but one viable reason is the social upheaval and the heterogeneity of experiences and ideologies caused by massive immigration around the turn of the last century.⁸ Contrast that origin with the present state of First Amendment doctrine. The Supreme Court pays no mind to noncitizens' distinctive interests in free expression and assembly or to the distinctive burdens noncitizens face in pursuing those interests.

This Essay proposes a corrective. Instead of ignoring noncitizens' distinctive speech interests or paying noncitizens merely tangential attention, what if we placed noncitizens' free speech at the very heart of First Amendment concern? Though I have no hope that the present Supreme Court would ever take this notion seriously, I advance it earnestly. The best part of our First Amendment tradition, which the Supreme Court built during roughly the first half century of First Amendment law, emphasizes speech with two qualities: value for promoting political and social change, and vulnerability to government suppression. Noncitizens' speech exemplifies those qualities. If we want constitutional speech protection to mean something honorable and to accomplish something worthwhile, courts and free speech advocates should move noncitizens from the fringes to the center of First Amendment thinking.

Part II of this Essay critiques present First Amendment doctrine's indulgence and exacerbation of a pathology that I call speech inequality. I describe speech inequality generally and then explain how it particularly disadvantages noncitizens. Part III contends that our public discourse and constitutional doctrine should resist speech equality by reorienting expressive freedom around a collective obligation to hear and consider unfamiliar, challenging ideas. I explain how that obligation should cause First Amendment law to prioritize protection for socially marginal

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speakers, with noncitizens as the paradigm. Part IV suggests how focusing First Amendment protection on noncitizens' speech should change outcomes in two prominent areas of legal controversy: retaliation for protest against government policies, and financial support for political candidates.

II. Speech Inequality and Noncitizens' Speech

A. SPEECH INEQUALITY'S SOCIAL AND LEGAL DIMENSIONS

Social conditions create disparities in speakers' opportunities to reach and persuade audiences. Present First Amendment doctrine reinforces those social disparities by favoring the speech interests of majorities and empowered groups. We can call this two-layered phenomenon speech inequality. My diagnosis of speech inequality is hardly novel. Commentators for decades have argued that First Amendment law should promote distributive justice values and have criticized First Amendment law for failing to do so.⁹ Speech inequality matters now more than ever because it has been accelerating for decades.

The unequal distribution of resources in our society is one important social cause of speech inequality. Income and wealth disparities in the United States continue to get worse.¹⁰ These disparities substantially dictate opportunities to participate effectively in public discourse. You can influence an audience only if you have the means to reach that audience. New communications technologies have restructured this opportunity gap, letting more people reach large audiences but also perpetuating resource inequalities and creating new structures of concentrated control.¹¹

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A second major social cause of speech inequality is identity difference. Just as election law recognizes minority populations' vulnerability to polarized voting,¹² minority and marginalized communities face what I have called identity-polarized discourse.¹³ Members of politically and culturally distinct identity groups tend to speak and argue politically in ways that reflect group members' common interests, experiences, and values. Group polarization promotes speech inequality because, to the extent that identity-driven modes of argument generate opposing viewpoints, conflicts between those viewpoints in public political debate will advantage larger and more empowered groups while disadvantaging smaller and less empowered groups. That skew worsens when majority and empowered communities deliberately press their advantages to silence or drown out voices from minority and marginalized communities. The Internet and social media, for all their value in facilitating communication and propagating information, have exacerbated identity-polarized discourse, for example by enabling concerted trolling against women and people of color.¹⁴

Courts have been developing First Amendment law for just over a century.¹⁵ Across its first fifty years, from 1919 until about 1970, First Amendment doctrine gathered increasing momentum to ameliorate speech inequality. Political and social outsider groups—notably left-wing dissidents,¹⁶ Jehovah's Witnesses,¹⁷ and African

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American civil rights activists¹⁸ —brought a succession of forceful First Amendment claims. Their efforts prompted the Supreme Court to develop a free speech doctrine, cresting during the Warren Court's rights revolution of the 1960s, that conceived of free speech as an engine for social and political change. This foundational free speech doctrine placed the expressive rights of minority and marginal communities at the center of First...