Russian interference in the United States’ 2016 presidential election has rekindled Americans’ fear of foreign speech. One of the few areas of consensus across the political spectrum in the past few years has been the need to clamp down on foreign influence on politics. This has resulted in frequent public calls and significant legislative and executive-branch efforts to restrict the speech of non-U.S. citizens (what we call in this post “foreign speech”).
Take, for example, the bipartisan Honest Ads Act, introduced in 2017 as a response to the 2016 revelations and reintroduced a number of times since (including as part of H.R. 1, the For the People Act). The Act would require television, radio, and online platform providers to make reasonable efforts to ensure that no ad “relating to any political matter of national importance” was purchased, directly or indirectly, by a foreign national. Despite its breathtakingly broad restriction of foreign speech, the bill did not inspire much controversy and instead received wide support from civil society (including the provisions about foreign ads specifically).
As another example, see the State Department requirement, introduced during the Trump administration but preserved by the Biden administration, that every visa applicant must register all their social media handles. Or the ramping up of law enforcement partnerships with private platforms to share information and threat intelligence about “foreign influence actors,” with little transparency about which actors and which activities are being targeted. Or calls for social media platforms to restrict accounts, including those of media organizations, “affiliated with” the Russian government following the invasion of Ukraine.
Each of these examples would or already does impose chilling effects or other burdens on foreign speech that would trigger significant concern if imposed on American citizens. But because it is foreigners’ speech being regulated, these kinds of proposals rarely cause anyone to blink an eye. And while the First Amendment gets invoked constantly (and often erroneously) in almost all other conversations about online speech regulation, it is curiously absent from the conversations about these laws and policies. It’s almost as if people assume the First Amendment is irrelevant when it comes to foreign speech.
It is not hard to understand why those who craft and support laws like the Honest Ads Act might not feel the need to defend their constitutionality (or, maybe, not give it much thought at all). The Supreme Court has not shown itself to be a vigilant defender of the speech rights of foreigners. While it has not recently addressed head-on the issue of foreign speech’s First Amendment status, the Court has suggested in a number of cases that the First Amendment might apply differently to the speech of foreign citizens—including foreign citizens living within the United States. But on a closer reading, the precedents send conflicting signals. They reveal a judiciary apparently reluctant to explicitly define when the speech of non-U.S. citizens is entitled to constitutional protection, but one that also acknowledges that such protection should, in many contexts at least, be substantial. Courts are not always clear on the interests they rely on when evaluating the constitutional status of foreign speech—self-governance? listeners’ interests? the autonomy interests of foreign speakers?—but at various times, all have been invoked to justify limiting the government’s ability to restrict it. This is one reason why throughout this post we focus on the constitutional status of foreign speech, not foreign speakers. Protection of the former does not necessarily have to be predicated on recognizing the rights of the latter.
The most recent time the Supreme Court confronted the question of foreign citizens’ free speech rights in some form was when it summarily affirmed the opinion written by then-Judge Kavanaugh for the D.C. District Court in Bluman v. Federal Election Commission. Bluman upheld a law banning foreign nationals from making political contributions to election campaigns or political parties. The district court sustained the law because it found the government possessed a compelling interest “in limiting the participation of foreign citizens in activities of American democratic self-government, and in thereby preventing foreign influence over the U.S. political process.” That might not sound promising from the perspective of the First Amendment protections for foreign speakers. But the D.C. court was careful to limit the reach of its decision.
In this post, we reread Bluman in an effort to correct misconceptions about the legal status of foreign speech—to show it is more protected than some, including the drafters of the Honest Ads Act, apparently assume. The idea that foreigners can be treated as second-class speakers, subject to far more onerous speech restrictions than those imposed on American citizens, is not sound as a matter of doctrine. Nor, we argue, is it sound as a matter of principle. Important free speech interests remain at stake when foreigners speak too. Existing First Amendment precedents clearly recognize these interests, and future ones should too.
The Limits of Bluman
Bluman concerned a First Amendment challenge to provisions in the Bipartisan Campaign Reform Act of 2002 (BCRA) that barred foreign nationals—a group the law defined to include all foreign citizens living in the United States, except permanent U.S. residents—from contributing to local, state, or federal election campaigns, from giving money to political parties, and from paying for speech that advocated the election or defeat of a political candidate. Crucially, while the law banned express advocacy, the law did not bar foreign nationals from paying for speech that advocated for any political position but did not expressly endorse, or argue against, the election of a political candidate.
Although the Court ultimately held that the restrictions that BCRA imposed on foreign political speech were constitutional, it only did so after applying “strict scrutiny,” the most stringent constitutional test of government power and as big a sign as is possible that the Court believed there was a high risk that the law might intrude on important rights. Judge Kavanaugh’s opinion acknowledged that there is “more than a century of Supreme Court case law that foreign citizens in the United States enjoy many of the same constitutional rights that U.S. citizens do,” including First Amendment rights. Kavanaugh nevertheless drew from the line of Fourteenth Amendment alienage cases that govern when states may discriminate against foreign residents to conclude that the government had a compelling interest in excluding foreign citizens from activities “intimately related to the process of democratic self-government.”
Kavanaugh declared it “self-evident” that express-advocacy expenditures were intimately related to the process of democratic self-government, and that the government could therefore ban foreign nationals from this kind of political expression. But he was careful not to go any further, noting that the case did not concern the question of whether Congress could ban foreign nationals from engaging in issue advocacy and “our holding should not be read to support such bans.”
It is not at all apparent, given Kavanaugh’s argument, why different rules would apply to a law that banned foreign nationals from engaging in issue advocacy than to a law, like BCRA, that banned foreign nationals from advocating for particular political candidates. Kavanaugh, without explanation, called Congress’ distinction between the two types of advocacy “sensible” but this simply begs the question. Policies are, after all, what those political candidates are elected to government to implement—why is advocating for one “self-evidently” part of the “activities of democratic self-government” and the other not? In both cases, a ban on foreign speech could be justified by the need to, as Kavanaugh put it in his opinion, “prevent foreign influence over the U.S. political process.” And in both cases, the ban would be narrowly “tailored to achieve that compelling interest” because it would “limit the participation of non-Americans in the activities of democratic self-government” just as the D.C. District Court found that BCRA did.
Indeed, modern First Amendment cases recognize a huge variety of speech—not just overtly political speech—to contribute to the processes of democratic self-government. Taken to its logical conclusion, the argument Kavanaugh makes in Bluman could be used to justify excluding foreign nationals not only from funding political campaigns and paying for issue ads, but also from funding or contributing to movies, television shows, newspapers, and many other kinds of speech. This is the reading of the opinion that defenders of the Honest Ads Act would have to rely on, but it does not appear to be the reading Kavanaugh intended.
In going out of his way to insist that the opinion did not imply this result, Kavanaugh appeared to reflect an anxiety present in a lot of discussion about constitutional protections for foreign speech. On the one hand, there is the impulse—often unexamined—that foreigners are somehow a threat to democratic self-governance. But on the other, there is the realization that this impulse is nearly impossible to square with the normally trenchant belief (and doctrinal principle) that censorship is not the appropriate remedy for “bad” speech and that the identity of the speaker is irrelevant to the worth of the speech.
This anxiety likely explains the many other ways Kavanaugh was careful to draw lines around the Court’s holding in Bluman. The opinion also notes that were Congress to try to extend BCRA’s ban to noncitizen permanent residents, it would “raise substantial [constitutional] questions” because of permanent residents’ “more significant attachment to the United States.” And it insists that, in order to convict a foreign national for violating BCRA’s ban on political advocacy, the government must show not only that she engaged in the prohibited activity but that she did so knowing that it was unlawful. This (unusually demanding) mens rea restriction on the reach of the law, Kavanaugh argued in another opinion, was necessary to “mitigate the risk of abuse and unfair lack of notice” that these kinds of broad statutory speech bans could impose. Finally, as noted above, the opinion applies the same strict scrutiny test (!) to restrictions on foreign speech that courts apply whenever the government imposes a content-based restriction on speech. The fact that the statute targeted foreign speakers did not, in form at least, change this aspect of the Court’s constitutional analysis.
The upshot is that Bluman is a somewhat tortured decision. On the one hand, the opinion suggests lawmakers should think quite carefully before restricting foreign speech.Indeed, the case’s only binding holding is to affirm the constitutionality of a very limited restriction on foreigners’ expressive freedom, albeit one that implicates what would ordinarily be considered core political speech: the right of non-U.S. resident speakers to directly contribute to political parties and campaigns. There’s doctrinal support for this reading of the case. Since Buckley v. Valeo, the Court has recognized that these kinds of expressive activities pose the greatest dangers of corruption and the appearance of corruption, and that limitations on direct contributions to campaigns and parties impose “only a marginal restriction upon the contributor’s ability to engage in free communication” in marked contrast to other, broader restrictions on political advocacy. But on the other hand, there are sweeping statements in Kavanaugh’s opinion that are difficult to square with this narrow reading. At one point, for example, the opinion suggests that any statute that limited foreigners’ political activity would be narrowly tailored to further the government’s compelling democratic ends.
The limited reach of Bluman’s holding therefore stands in marked tension with the expansive logic of its argument about the prerogatives of democratic government. For courts and regulators trying to interpret and resolve this tension, there are good precedential as well as normative reasons why Bluman should be read narrowly.
The Doctrinal Basis for Foreign Speech’s First Amendment Protection
Bluman can hardly be considered a thorough examination of, or persuasive answer to, what should be a difficult constitutional question. At 12 pages, the opinion is short. It also, curiously enough, does not engage with most of the limited corpus of Supreme Court cases that examine the First Amendment status of foreign speech.
The opinion does not mention, for example, the Supreme Court’s decision in Lamont v. Postmaster General, which struck down a law that required those who wished to receive mail from abroad that the government identified as “communist propaganda” to send the Postmaster General a card affirmatively opting-in to delivery. Although the law did not foreclose the dissemination of any foreign speech—recipients could, after all, always send in the card!—the Court nevertheless found the law violated the First Amendment rights of the would-be recipients of the propaganda by creating a deterrent effect against them receiving the mail. The opinion held, in other words, that the law was “at war with the ‘uninhibited, robust, and wide-open’ debate and discussion that are contemplated by the First Amendment” and that it was unconstitutional for the government to “control the flow of ideas to the public” even when those ideas were communist political propaganda. To be sure, the decision did not say anything about First Amendment protection for foreign speakers, but it established robust protection for foreign speech.
The opinion in Bluman also does not discuss the Court’s decision in Meese v. Keene. In that case, the Supreme Court upheld provisions in the Foreign Agents Registration Act (FARA) that required individuals engaged in propaganda on behalf of foreign powers to register and disclose their status. But the Court only did so after finding that the Act neither censored nor denigrated the speech it regulated. Instead, the Court upheld FARA’s labeling requirements because it recognized “that the best remedy for misleading or inaccurate speech contained within materials subject to the Act is fair, truthful, and accurate speech.”
Nor, most strikingly, does the opinion in Bluman engage with the majority opinion in Citizens United v. FEC—perhaps the most important recent Supreme Court case to examine how the First Amendment applies to campaign finance laws. Kavanaugh relied heavily on dicta in Justice Stevens’ dissenting opinion (which all four liberal members of the Court joined) that casually waved aside the interest of Americans in hearing from foreigners.But when it came to the Citizens United majority opinion, Kavanaugh noted only that it “did not have occasion to expressly address [the] issue” of how the First Amendment applies to laws designed to limit foreign influence in U.S. elections. That is true—the majority did in fact reserve for another day the question of whether laws that restricted foreign corporations’ campaign expenditures could be justified by the government’s compelling interest in limiting foreign influence in U.S. elections. But in doing so, it clearly did not endorse Justice Stevens’ casual assumptions about foreign speech. Instead, the majority’s opinion expressed strong reservations about the constitutionality of laws that, like the Honest Ads Act or the provisions at issue in Bluman, restrict speech based on the identity of the speaker. It argued, for example, that it is inherent in the nature of the political process that voters must be free to obtain information from diverse sources in order to determine how to cast their votes.” It also quoted approvingly from Bellotti that “[t]he inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source.”
There is no reason why such statements about the irrelevance of the identity of the speaker to the value of speech should be limited to the corporations who were the focus of the Citizens United majority’s concern, and not equally apply to the speech of people from other countries. As Rick Hasen has noted, “it is difficult to see how any of the arguments supporting a foreign spending limit could be squared with the reasoning of the majority in Citizens United.” More generally, like the decisions in Lamont and Meese, Citizens United strongly suggests that courts should treat laws that restrict foreign speech with marked disfavor in order to safeguard the democratic and truth-seeking interests of the U.S. listeners, as well as the dignitary interests of foreign speakers themselves. As Justice Kennedy put it in that opinion, when the government “take[s] the right to speak from some and giv[es] it to others … it deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect. … The First Amendment protects speech and speaker, and the ideas that flow from each.”
Of course, there are also contrary Supreme Court precedents that might suggest that First Amendment protection for foreign speech is less robust than for other kinds. For example, in Holder v. Humanitarian Law Project, the Court (in)famously upheld expansive restrictions on the ability of speakers to speak to or otherwise associate with foreign terrorist organizations—restrictions that it would be hard to imagine surviving if applied to domestic terrorist groups. However, the reasoning in that case relied heavily on the federal government’s extensive authority in the context of national security matters and foreign affairs.
Similarly, Kleindienst v. Mandel—which involved a challenge to the government’s refusal to grant a visa to a foreign scholar—was highly context-specific. While the decision makes clear that the First Amendment rights of both foreign speakers and U.S. listeners may be significantly reduced in the immigration context, the reach of Kleindienst is strictly cabined by other precedents—such as, for example, Bridges v. Wixon—that assert that, once admitted to the country, foreigners “become invested with the rights guaranteed by the Constitution to all people within our borders” and for that reason, cannot be summarily deported for their speech or association.
More recently, in Washington Post v. McManus, the Fourth Circuit Court of Appeals agreed without hesitation, in the context of online paid advertising, that deterring foreign interference in elections was “undoubtedly an important state interest.” But the Court again affirmed that there are First Amendment interests that still require careful protection, holding that a law that required certain websites to publish information about the ads on their sites in an effort to limit foreign influence in elections was unconstitutional because it was not sufficiently narrowly tailored.
Neither Holder nor Kleindienst nor McManus (nor, necessarily, Bluman!) therefore establishes as a general principle that foreign speech is less protected than U.S. citizen speech. They articulate much more modest limits on the First Amendment rights of foreign speakers and American audiences. And there are good reasons why courts should be careful in this way.
The Normative Basis for Foreign Speech’s First Amendment Protection
Arguing against First Amendment protection for foreign speech puts people in an awkward position because such an argument suggests a lack of confidence in the notion of the “marketplace of ideas,” an (overly) robust conception of which underpins much First Amendment thinking, including the campaign finance cases. As Alexander Meiklejohn—the First Amendment scholar most associated with advocating for a theory of free speech that is based on the idea of self-governance—observed, a fear of foreign speech suggests a lack of faith in the electorate:
Why may we not hear what these men [sic] from other countries, other systems of government, have to say? … Do We, the People of the United States, wish to be thus mentally “protected”? To say that would seem to be an admission that we are intellectually and morally unfit to play our part in what Justice Holmes has called the “experiment” of self-government.
Like Meiklejohn, we think the marketplace of ideas may require regulation in order to function properly. But such regulation should be carefully scrutinized to ensure it does not overly infringe on free speech. And efforts to remedy these market failures by targeting foreign speech alone are highly likely to be both overinclusive—by prohibiting a great deal of valuable speech—as well as under-inclusive. Manipulative foreign speech is a small subset of manipulative political speech, and there is no reason to believe it is an especially effective one.
Nor can restrictions on foreign speech be easily justified by free speech arguments that focus on the importance of the search for truth. Americans, after all, have no monopoly on the truth. John Stuart Mill’s iconic argument in this tradition was explicitly internationalist for this reason. Mill worried about people not expanding their frame of reference beyond their own borders and wrote passionately about how free speech facilitated the spread of ideas throughout Europe. This is the ethos that underpins the International Covenant on Civil and Political Rights guarantee that everyone has the right to freedom of expression “regardless of frontiers.”
Recognizing the value of foreign speech does not require feeling very concerned about the constitutional rights of non-Americans, if that bothers you. It requires only wanting to protect the constitutional rights of Americans as listeners—as the decision in Lamont makes plain. There can be no serious argument that foreigners do not have important contributions to make to American political debates. Consider the speech of foreigners on U.S. foreign policy or military interventions, communicating information about global affairs, or revealing information about the international activities of American corporations. Such speech may be some of the most informative perspectives on these issues.
This is why judges like Kavanaugh often find themselves in a pickle as they uphold restrictions on foreign political speech. Clearly excluding all foreign speech is at odds with the motivating rationales for freedom of expression. But it is difficult to articulate a compelling reason why some restrictions are justified but all are not.
None of this is to deny the ways the online environment can be manipulated by foreign actors. There are, without a doubt, many kinds of manipulative foreign information operations that democracies need to be worried about. But while it is important to be on guard against manipulative information operations (either foreign or domestic), the fear of manipulation does not justify painting with a broad brush to devalue foreign speech in general. Rhetoric that focuses on the fact that the speech is foreign rather than the fact that it is manipulative creates a foreign scapegoat for a much larger problem. And such rhetoric threatens to result in policies that sweep aside much valuable foreign speech as collateral damage in a way that would never be accepted in the context of any other speakers, including corporations.
Resisting the Slide Toward a Parochial First Amendment
There is therefore little doctrinal basis for the assumption that seems to pervade public debate—and many regulatory proposals—that there are few constitutional obstacles to regulating foreign speech. Nor, we have suggested, is there a normative one. What the review of the Supreme Court precedents in this post reveals instead is a deep tension between an instinct many appear to have that surely foreign speech is not as highly protected as American speech, on the one hand, and the difficulty of articulating precisely why this should be so on the other. This tension is dramatically illuminated by the mismatch between the (narrow) reach of the holding in Bluman, and the expansive reach of its argument. This makes the decision potentially dangerous. Although like most precedents on the issue of foreign speech, it leaves most of the difficult questions for another day and certainly can be read narrowly, its logic could easily be mobilized to justify all sorts of restrictions on foreign speech.
That Bluman might be mobilized in this way is not at all unlikely. Indeed, the instinct that surely foreign speech can and should be regulated has been quietly becoming increasingly dominant.
This is evident in the case law. In contrast to the language of earlier opinions, like Lamont and Bridges, which contain statements asserting robust protection for foreign speech (if not foreign speakers), recent opinions have been more ambiguous. Take the casual aside by the minority in Citizens United that “we have never cast doubt on laws that place special restrictions on campaign spending by foreign nationals” or, for that matter, Kavanaugh’s cursory opinion in Bluman that did not bother to examine the relevant precedents or explain any limiting principles.
This increasing judicial indifference (hostility?) to foreign speech rights has been accompanied by a marked push in recent years to restrict foreign speech, such as the examples given in our introduction. Ironically enough, this push can be blamed in part on the strongly deregulatory view of the First Amendment adopted by the Citizens United majority. The very significant roadblocks the opinion imposed on the regulation of domestic political spending prompted lawmakers to search for whatever loopholes they could find, and the majority’s noncommittal stance on the regulation of foreign spending made this an attractive option. Indeed, bills targeting foreign election spending were introduced into Congress days after the decision was handed down. Concern about other kinds of foreign interference in U.S. elections in the years since has only intensified efforts to limit the flow of foreign speech into the domestic public sphere.
The sub-silentio nature of these judicial and political shifts is aided by the fact that many of these efforts to restrict foreign speech are bipartisan in nature. While Kavanaugh (a conservative judge) did not engage much with the Citizens United majority in his Bluman opinion, for example, he quoted extensively from the liberal Justice Stevens’ dissenting opinion for the proposition that campaign finance laws that distinguish between foreign and domestic speakers are not always constitutionally problematic. Agreement about the importance of these kinds of speaker-based distinctions continues to extend across the political divide. For example, sponsors of the Honest Ads Act include Sen. Lindsey Graham (R-S.C.) and Sen. Mark Warner (D-VA) and Amy Klobuchar (D-MN).
Rereading the cases shows that the Supreme Court has given little more than cursory attention to the free speech interests imperiled by broad-based restrictions or dismissals of the value of foreign speech. This seems somewhat intentional, given the number of times the Court has ducked the issue. The Court keeps kicking the can down the road, consistently refusing to face head-on or fully explain the constitutional status of foreign speech—particularly foreign speech that occurs in the United States—and never articulating a comprehensive theory. It’s not hard to see why. As the opinion in Bluman shows, how to coherently define the borders of foreign speech restrictions that go further than domestic speech restrictions is hard. But the difficulty of doing so is no excuse for slowly chipping away at the protections afforded foreign speech quietly and without explanation. None of the answers to these questions are “self-evident.” We, as one foreigner and one former foreigner, respectfully submit that the issue deserves greater scrutiny.
For an excellent examination of the case and the people involved, listen to this podcast: https://www.npr.org/2019/11/22/782132264/episode-954-what-is-foreign-interference-anyway.
Kavanaugh does not note that the authorities that he relies on in asserting that the government has a compelling interest “for purposes of First Amendment analysis in limiting the participation of foreign citizens in activities of American democratic self-government, and in thereby preventing foreign influence over the U.S. political process” come from precedents relating to a different amendment (the Fourteenth). Bluman v. Fed. Election Comm'n, 800 F. Supp. 2d 281, 288 (D.D.C. 2011) (emphasis added). His opinion therefore also does not address the different considerations that would apply in each context.
The opinion only addresses how the First Amendment applies to the speech of foreigners residing in the United States. The plaintiffs, all of whom were residents of the United States, conceded that the government could ban foreign citizens residing abroad from making campaign expenditures and the Court did not contest this concession. Hence, the opinion sheds no light on the First Amendment rules that apply when the government regulates the speech of foreigners living in foreign countries.
Bluman, 800 F. Supp. 2d at 290 (holding that BCRA is narrowly tailored because it “serves the compelling interest of limiting the participation of non-Americans in the activities of democratic self-government” and noting that any “statute that excludes foreign nationals from political spending is therefore tailored to achieve that compelling interest”).
Citizens United v. FEC, 558 U.S. 310 (2010) (“we have never cast doubt on laws that place special restrictions on campaign spending by foreign nationals … [and] [t]he notion that Congress might lack the authority to distinguish foreigners from citizens in the regulation of electioneering would certainly have surprised the Framers.”)
Evelyn Douek is an assistant professor of law at Stanford Law School and was a senior research fellow at the Knight First Amendment Institute at Columbia University from 2021-22.
Genevieve Lakier is a professor at the University of Chicago Law School and was the Knight Institute's senior visiting research scholar, 2021-2022.