In recent weeks, former President Trump and other Republicans have called upon government officials to revoke student visas and remove foreign nationals who express support for Hamas or criticize Israel’s response to Hamas’ attack. For example, former President Trump said at a campaign event that, if elected, his administration would “revoke the student visas of radical, anti-American and antisemitic foreigners at our colleges.” Senator Scott said that “[t]he foreign national students on visas who are protesting against our ally Israel should be sent back to their country.” Senator Rubio sent a letter to Secretary of State Antony Blinken regarding a “disturbing increase in demonstrations in support of Hamas” and urging the State Department use a provision of the Immigration Nationality Act (INA) “to revoke the visas of those who have endorsed or espoused Hamas’ terrorist activity ... to eradicate this hate from our country.” Senator Cotton similarly urged the Department of Homeland Security to use the same INA provision to “immediately deport any foreign national—including and especially any alien on a student visa—that has expressed support for Hamas,” noting that “[w]hile American citizens may have a First Amendment right to speak disgusting vitriol if they so choose, no foreign national has a right to advocate for terrorism in the United States.”

These proposals raise grave First Amendment concerns. And as it turns out, government lawyers have considered at length whether proposals like these would be constitutional, and their analysis makes clear that the answer is likely no.

On Monday, we published two U.S. Immigration and Customs Enforcement (ICE) memos that reveal the government’s assessments of the constitutional limits on its ability to screen and exclude people from the United States based on their speech, beliefs, or associations. We obtained these documents through a Freedom of Information Act (FOIA) lawsuit against ICE and other government agencies. 

ICE’s memo titled Constitutional Considerations Relating to Proposed Enhanced Vetting of Aliens in the United States for Counterterrorism Purposes analyzes the constitutional frameworks that constrain government agencies’ “counterterrorism vetting” programs. Significantly, the memo 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.”

ICE’s other memo, titled Inadmissibility Based on Endorsing or Espousing Terrorist Activity: First Amendment Concerns and revised by the White House Office of Legal Counsel (OLC), discusses constitutional limits on the enforcement of an INA provision for the exclusion or expulsion of non-U.S. persons who “endorse or espouse” terrorist activity. The memo concludes that, in cases involving lawful permanent residents, non-U.S. persons within the United States, or non-U.S. persons outside the United States who have significant U.S. contacts, “applications of the INA’s content-based restriction on speech will likely be subject to a heightened standard of review,” and that “it is rare for a statute to survive strict scrutiny.” Accordingly—in text apparently inserted by the OLC—the memo casts doubt on the constitutionality of the provision as applied to such persons “who have expressed support for terrorism at a more abstract level or in contexts that would not implicate the security of the United States or its nationals.”

These recently obtained memos appear to have been drafted in connection with the Trump administration’s “extreme vetting” program, which began with the issuance of an executive order declaring that the United States “must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles.” Beyond recognizing the constitutional limits noted above, the memos provide a few broader takeaways.

First, the Constitution protects non-U.S. persons who are admitted to the United States, lawful permanent residents inside or outside the United States. Second, those people may challenge the collection of identifying information that reveals their political views or associations or infringes their privacy rights. Third, the government’s use of a non-U.S. person’s expressive or associational information to rescind an immigration benefit may be challenged as unconstitutional—particularly when the government action implicates core First Amendment activity. Fourth, the First Amendment limits the government’s ability to remove lawful permanent residents and non-U.S. persons from the United States for engaging in protected speech. And fifth, the First Amendment rights of U.S. citizens to hear from and assemble with non-U.S. persons may limit the government’s ability to exclude such persons from the country.  

We don’t know whether these memos were widely circulated among agencies or whether they’re still operative. Nevertheless, the memos reflect the government’s awareness of the rights of individuals targeted by extreme vetting policies and a recognition of the serious—and likely unconstitutional—burdens such policies impose on individuals’ expressive rights.

Together, the two memos confirm that proposals to revoke the visas of student demonstrators who express controversial or even offensive views about Israel or Hamas would likely be held unconstitutional. So too would proposals to use the INA’s terrorism-related ground of inadmissibility to remove individuals who merely express support for Hamas at an “abstract level.”

The First Amendment gives very broad protection to political speech, including to speech that is contentious or unpopular. Accordingly, regulations that target political speech on the basis of viewpoint almost never survive judicial review.

This is for good reason. It is a dangerous proposition to allow the government to determine what qualifies as “good” and “bad” viewpoints. It is particularly troubling when regulations would aim to do just that using broad, undefined categories such as “anti-American,” which could reasonably be interpreted to include a great deal of protected political speech, including criticisms of the Biden administration’s foreign policy or advocacy regarding the U.S.’s response to human rights violations. Removing people from this country based on their political viewpoints chills expressive activity and deprives people in the United States of diverse perspectives. More broadly, the legitimacy of democracy, particularly during times of conflict and intense disagreement, depends on public discourse that is robust, uninhibited, and wide open.