President Donald Trump campaigned to restore free speech in America. But since taking office, his administration has engaged in a sweeping crackdown on, in particular, anti-Israel speech from lawful residents like Tufts University student Rümeysa Öztürk. She was arrested and her visa was revoked solely for writing a newspaper article. To do all this, Secretary of State Marco Rubio has cited two archaic federal statutes that seemingly give the feds sweeping authority to deport lawful residents who say just about anything the administration dislikes. 

But are those statutes actually constitutional? The nonpartisan Foundation for Individual Rights and Expression says not, and it just launched a lawsuit challenging them on First Amendment grounds. (Disclaimer: I do a small amount of freelance work with FIRE.)

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“In the United States of America, no one should fear a midnight knock on the door for voicing the wrong opinion,” FIRE attorney Conor Fitzpatrick said in a statement. “Free speech isn’t a privilege the government hands out. Under our Constitution, it is the inalienable right of every man, woman, and child.” 

One key question here: do legal immigrants have First Amendment rights? After all, the refrain from the Trump administration and its supporters has been that they are guests in this country and do not have the right to stay if they say objectionable things. 

Yet the First Amendment itself makes no distinction between citizens and noncitizens. It restricts what the government can do, not who it can apply to. Multiple Supreme Court cases have found that immigrants are entitled to some degree of First Amendment protection, even the late conservative Supreme Court justice Antonin Scalia famously agreed that the First Amendment protects immigrants. 

Considering this reality, it’s hard to see how the sweeping statutes Rubio cites could be constitutional. The secretary of state has pointed to two parts of the Immigration and Nationality Act, one of which entitles him to deport anyone whose speech “compromises a compelling foreign policy interest.” The other part of the INA Rubio cites would allow them to revoke any noncitizen’s visa anytime.

There’s no way for these statutes to coexist with the First Amendment. If the government can arrest you and deport you for your political opinion, you don’t have any freedom of speech at all. 

And, frankly, even staunch conservatives and/or supporters of Israel shouldn’t want the federal government playing speech police like this. After all, the same INA authority Rubio cites could have easily been used by the Biden administration to deport conservative legal immigrants like Dr. Jordan Peterson, who criticized former President Joe Biden’s foreign policy, or by a future liberal president to deport immigrants who support Israel. It’s not at all a stretch to imagine future President Alexandria Ocasio-Cortez going after college students for writing op-eds in support of Israel. Unfortunately, that’s the precedent this administration is setting. 

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To be clear, no one is arguing against the federal government’s ability to revoke the visas of those who come here and break our laws. This could easily include some anti-Israel protesters who engaged in illegal encampments or provided material support to Hamas, a designated terrorist group. The president simply shouldn’t be policing speech and deporting people for their political opinions alone. 

And this isn’t actually about the underlying Israel-Palestine debate. The real question is whether we want to live in a country where all lawful residents are free to speak their minds, or one where a chilling cloud hangs over political discourse if you have the wrong paperwork.

Brad Polumbo is an independent journalist and Brad vs Everyone podcast host.