The Contested "bright Line" of Territorial Presence

• Publication year: 2022

The Contested "Bright Line" of Territorial Presence

Shalini Ray
University of Alabama School of Law, sray@law.ua.edu

The Contested "Bright Line" of Territorial Presence

Cover Page Footnote

Associate Professor, University of Alabama School of Law. Thanks to Prof. Jason A. Cade and the editors of the Georgia Law Review for inviting me to participate in this symposium.

[Page 1511]

THE CONTESTED "BRIGHT LINE" OF TERRITORIAL PRESENCE

Shalini Bhargava Ray^*

For this symposium on "Immigrants and the First Amendment," this Essay considers the current scope of First Amendment protection for noncitizens abroad. Courts have interpreted the constitutional rights of noncitizens to vary with factors including status, ties, and location. But in a recent case, Agency for International Development v. Alliance for Open Society International, the Supreme Court announced that the First Amendment simply does not apply to noncitizens abroad. This Essay considers this new rule and its implications, concluding that a bright-line rule based on territorial presence masks more complex questions about the meaning of "here" and "abroad."

[Page 1512]

Table of Contents

I. Introduction..................................................................1513

II. Status, Connection, and Territorial Presence in Immigrants' Rights Jurisprudence...........................1513

III. AOSI II'S Bright Line..................................................1517

A. AOSI II'S READING OF THE EXTRATERRITORIALITY PRECEDENTS..........................................................1518
B. ALTERNATIVE POSSIBILITIES..................................1523
C. THE BRIGHT LINE BLURS.........................................1524

IV. The Interconnectedness of Citizen-Noncitizen Interests.....................................................................1526

V. Conclusion....................................................................1530

[Page 1513]

I. Introduction

What protection does the First Amendment afford noncitizens abroad? None, according to a recent Supreme Court decision, Agency for International Development v. Alliance for Open Society International (AOSI II).¹ For this symposium on "Immigration and the First Amendment," this Essay considers the Supreme Court's new bright-line rule limiting constitutional protection for noncitizens abroad. It first considers the key determinants of immigrants' rights-status, connection to the United States, and territorial presence. It then evaluates the Court's bright-line rule limiting the First Amendment abroad with respect to noncitizens, finding that conclusion to be neither necessary nor inevitable under key precedents. Finally, it explores how this rule might falter in practice, demonstrating that geographic judgments of "here" and "abroad" remain contested. This Essay ultimately calls for less reliance on the purported "bright line" of the border and greater attention to the interconnectedness of citizen and noncitizen First Amendment rights.

II. Status, Connection, and Territorial Presence in Immigrants' Rights Jurisprudence

The Constitution protects some noncitizens some of the time.² In her important essay synthesizing immigrants' rights jurisprudence in three areas—Equal Protection, Due Process, and the Fourth Amendment—Judge Karen Nelson Moore analyzes the roles of an immigrant's status,³ ties to the United States,⁴ and territorial

[Page 1514]

presence⁵ in determining noncitizens' rights in these settings. Professor David A. Martin has similarly analyzed modern immigrants' rights jurisprudence, concluding that the Court has taken a "graduated categorical approach to noncitizens' rights."⁶ This means that some categories of noncitizens enjoy substantial constitutional protection, whereas others enjoy less, and some are wholly unprotected, depending on certain factors.⁷

Immigrants' rights jurisprudence has evolved in the shadows of a longstanding distinction in immigration law between "excludable" noncitizens and "deportable" ones.⁸ Since the nineteenth century, the government regarded "excludable" noncitizens as not yet having effectuated an entry.⁹

In Shaughnessy v. Mezei, the Supreme Court affirmed the government's plenary power to detain such noncitizens, even indefinitely.¹⁰ Though screened on U.S. soil at ports of entry and held in detention facilities in places like Ellis Island, the government deemed these noncitizens to be standing on the cusp of entry. This characterization is known as the "entry fiction."¹¹ Accordingly, these noncitizens could not claim the same protections available to those who had successfully entered.¹² In contrast to excludable noncitizens, deportable noncitizens were those who had

[Page 1515]

effectuated an entry. Even recent entrants, including those who had entered illegally,¹³ could claim the protection of the Constitution, although this typically yielded minimal protections.¹⁴

In 1996, Congress replaced the excludable-deportable distinction with a distinction between inadmissible noncitizens and removable ones.¹⁵ Such a move eliminated the advantage that unauthorized entrants enjoyed, as they were previously deemed "deportable" and would now be subjected to the more severe provisions applicable to "inadmissible" noncitizens. Professor Martin notes the lack of clarity as to whether Congress "thought this change might affect the constitutional status of [noncitizens who entered the U.S. without inspection]."¹⁶ Congress further distinguished "arriving" noncitizens from inadmissible noncitizens in the interior, suggesting the enduring importance of the distinction between noncitizens who are inside the United States from those who are outside.¹⁷

Although immigrants' rights jurisprudence has often featured claims under the Due Process Clause, noncitizens have also claimed protection under the First Amendment.¹⁸ Unlike other provisions of

[Page 1516]

the Bill of Rights, which bestow rights on "the people"¹⁹ or "person[s],"²⁰ the speech and religion clauses of the First Amendment articulate a seemingly structural constraint on the government, at least with respect to restrictions on speech and religious exercise.²¹ The First Amendment reads in full: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."²²

In Bridges v. Wixon, the Court considered a habeas petition by a noncitizen, Harry Bridges, whom the government had detained pending deportation.²³ Government officials sought to deport Bridges based on a statute providing for the deportation of noncitizens with a past affiliation to the Communist Party.²⁴ Here, Bridges had published a newspaper for workers in a labor union that was affiliated with the Communist Party.²⁵ The Court adopted a narrow conception of affiliation, concluding that Bridges was not deportable.²⁶ In reaching this conclusion, the Court approvingly

[Page 1517]

quoted the hearing examiner's analysis that "'affiliation' implies a 'stronger bond' than 'association;'" it means "less than membership but more than sympathy."²⁷

The majority's narrow interpretation of the statute made no mention of the First Amendment, but the concurring opinion made the constitutional question plain. According to Justice Murphy, the statute violated the First Amendment.²⁸ Modern cases demonstrate that noncitizens' First Amendment rights in the U.S. are not equal to citizens' First Amendment rights,²⁹ but courts recognize some basic protection—even for deportable noncitizens.³⁰ Longstanding precedents demonstrate that the First Amendment applies, at least to some extent, to noncitizens of various statuses within the United States.³¹ Although the First Amendment does not substantially constrain the government's power to exclude noncitizens,³² the scope of the First Amendment as a constraint on government action not relating to the exclusion or removal of noncitizens has only recently become clear.

III. AOSI II's Bright Line

In its 2020 decision in Agency for International Development v. Alliance for Open Society International (AOSI II), the Supreme

[Page 1518]

Court held that foreign organizations affiliated with American organizations had no First Amendment right to disregard a policy requiring recipients of federal funds to oppose prostitution.³³ Justice Kavanaugh framed the question presented as one of the constitutional rights of foreign entities abroad rather than the constitutional rights of American entities with foreign counterparts.

A. AOSI II'S READING OF THE EXTRATERRITORIALITY PRECEDENTS

In AOSI II, the Supreme Court considered the constitutionality of a provision of the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act (Leadership Act), which allocated billions of dollars to American and foreign NGOs to address the spread of HIV/AIDS.³⁴ Congress limited funding to organizations that explicitly opposed prostitution and sex trafficking, and this restriction became known as the "Policy Requirement."³⁵

In a 2013 case also involving Alliance for Open Society International, the Supreme Court had ruled in favor of American NGOs challenging the Policy Requirement on First Amendment grounds.³⁶ The Court there noted that Congress can impose limits on the use of federal funds that incidentally curb recipients' First Amendment rights, but Congress cannot "reach [speech] outside" the federal program.³⁷ In this case, however, the Court held that corporate structuring made all the difference. When an American NGO operates in other countries through NGOs incorporated under foreign law, the Policy Requirement does not violate their First Amendment rights when applied to their foreign affiliates.³⁸

The majority explained that noncitizens "in the United States may enjoy certain constitutional rights," but in its reading, the Court had...