Why FIRE is suing Rubio — and what our critics get wrong about noncitizens’ rights

FIRE is suing Secretary of State Marco Rubio to challenge two federal immigration law provisions that give him unchecked power to revoke legal immigrants’ visas and deport them just for speech protected by the First Amendment.

And yes, we knew full-well we’d get blowback. You don’t exactly file a First Amendment lawsuit against a cabinet member without knowing it will be unpopular with parts of the American public.

But for nonpartisan free speech defenders, that comes with the job.

One of our plaintiffs is the student-run paper The Stanford Daily, where writers on student visas are turning down assignments related to the war in Gaza because they fear reporting on it could endanger their immigration status. We are also representing two legal noncitizens who engaged in pro-Palestinian speech and now fear being deported.

Some of the questions we’ve received have been quite thoughtful. Others, however, are mistaken on the premises. So let’s clear the air.

Happy to help, Obsequious Deacon. The First Amendment in the Constitution’s Bill of Rights prohibits the government from “abridging the freedom of speech,” without any distinction between citizens and aliens. If the U.S. government is acting against someone on U.S. soil, the Constitution applies.

Remember, our liberties don’t spring from the kindness of government, but are inherent to each and every individual. The First Amendment presumes there is free speech, and is simply a restriction against government infringement of it. This recognition is what makes the American experiment exceptional and worth defending.

This has been firmly established by the Supreme Court in a long line of cases. In Bridges v. Wixon (1945), the Court made clear that under the protection of the First Amendment, “Freedom of speech and of the press is accorded aliens residing in this country.”

Or take it from Justices Antonin Scalia and Ruth Bader Ginsburg, who famously disagreed on a lot! Here they discuss how even immigrants not here legally (which isn’t the case in this lawsuit, where the plaintiffs are here on visas) enjoy the protection of the First Amendment.

Additionally, in Yick Wo v. Hopkins (1886), the Court said the Equal Protection Clause of the Fourteenth Amendment applies to “all persons” in the country, not just citizens. In Plyler v. Doe (1982), the Court struck down a Texas law that denied public education to undocumented children, explaining that undocumented immigrants are still “persons” under the Constitution.

The same goes for due-process protections. In Wong Wing v. United States (1896), the Court ruled that noncitizens accused of crimes are entitled to Fifth and Sixth Amendment protections, including due process and the right to a jury trial. And in Zadvydas v. Davis (2001) and Sessions v. Dimaya (2018), the Court has since affirmed that due process applies to everyone in the United States, including noncitizens.

We’ve never been conservative, liberal, or any other political label. We’re nonpartisan defenders of the First Amendment.

Before we expanded our mission to defend free speech everywhere, we focused on college campuses where censorship, in recent decades, has overwhelmingly come from the left of the speaker. As a result, we often found ourselves challenging liberal administrators and defending the rights of conservative and moderate students, professors, and speakers. But we don’t care about the viewpoint involved. FIRE’s motto is, “If it’s protected, we’ll defend it.”

As for the claim that we support Hamas, defending someone’s right to speak is not the same as endorsing what they say. Defending the speech of ideological allies and opponents is the foundation of any principled defense of free expression.

No. The terms “lawful” and “illegal” are opposites, of course. The “lawfully present noncitizens” mentioned first are legally allowed to be in the country while the “illegal aliens,” by definition, are not. That said, the First Amendment applies to everyone on U.S. soil. This is America, and you shouldn’t have to prove your citizenship before offering an opinion.

Think of it this way, would you be comfortable if a Democratic administration deported Canadian Jordan Peterson for his speech or a European student whose Ph.D. research concentrated on proving the Wuhan lab leak theory of Covid’s origins? We hope not.

The censorship of noncitizens affects Americans, too. If international students and green-card holders have to censor themselves out of fear, we stand to lose many ideas as a result. Should John Oliver have been forced to censor his criticism of the Iraq War on The Daily Show before he became a U.S. citizen? Should British politician Nigel Farage have been prohibited from criticizing Joe Biden during last year’s Republican National Convention? Of course not, and Americans interested in hearing their perspectives would have been all the worse for it.

If you’re having a conversation with someone, you deserve to hear their full opinion, not one sanitized to avoid retaliation from government censors. And if the current administration’s actions don’t worry you, just imagine the other side wielding the same power.

Bear in mind our lawsuit and this discussion are not about admitting noncitizens, the focus is throwing people who are already here legally out of the country for protected speech. As our preliminary injunction brief explained (check out footnote 7), the law has long distinguished the discretion afforded in determining whom to allow into the country from permissible considerations when attempting to deport someone legally here. Our client The Stanford Daily is suing Rubio because its noncitizen student writers are afraid to practice basic journalism for fear they could be deported. That’s not very American.

Another problem here is there is not exactly universal agreement on what constitutes “American values.” Quite the contrary, it’s frequently been misused to silence dissent, which is ironic because the most fundamental of American values is to protect dissent in what increasingly seems to be the uniquely American belief that all people should be free to fully speak their minds.