Hours after landing in Minneapolis on Wednesday, Yassmin Abdel-Magied was on a flight back to London. Border agents reportedly pulled her aside upon arrival, took her cellphone, and – following a minutes-long review of her case – canceled her visa and denied her entry into the country.

A prominent Muslim Australian activist, Abdel-Magied was scheduled to speak at the PEN World Voices Festival in New York, including at one event prophetically titled The M Word: No Country for Young Muslim Women. U.S. Customs and Border Protection (CBP) claimed Abdel-Magied was traveling on the wrong visa, though she had traveled to the United States on the same visa for similar events in the past.

Without more information, we can’t say definitively that CBP’s justification for turning Abdel-Magied away was pretextual. But her experience aligns with those of other activists, artists and experts who have been denied entry into the United States in recent months.

Earlier in April, a Toronto-based Syrian trans activist named Ziva Gorani was reportedly denied a visa to speak at an LGBTQ conference in New Jersey. In February, the producer of the Academy Award nominated film Last Men in Aleppo, Kareem Abeed, was denied a visa to attend the ceremony. And in January, the Iran-born and London-based neuroscience PhD student Arman Eshaghi was denied entry to the United States to participate in a scientific conference.

American activists, too, have confronted increased government scrutiny at the border. Also this month, border agents interrogated the journalist and civil rights advocate Shaun King upon his return from a family trip to Cairo. Along with his exhausted wife and children, King fielded questions about his reasons for traveling to Egypt and his role in the Black Lives Matter movement. King reported that the officer who questioned him had “clearly been reading my tweets and knew all about me.”

It is the fulfillment of a promise to resurrect a cold war–era "ideological screening test" for admission into the US.  

And there is mounting evidence that even within U.S. borders, non-citizen activists now face a significant threat of deportation in retaliation for their advocacy on issues relating to immigration. Ravi Ragbir, Jean Montrevil, Maru Mora-Villalpando, and Alejandra Pablos are among a growing number of activists whom U.S. Immigration and Customs Enforcement (ICE) has targeted in the past few months.

Several of them were detained after they attended demonstrations or made public comments about immigration issues. An ICE document on Mora-Villalpando, who was detained after speaking to the media, noted her “extensive involvement with anti-Ice protests and Latino advocacy programs.”

These recent incidents are part of a broader government scheme to wield immigration authority to silence activists both within and beyond the U.S. borders. CBP and ICE agents conduct suspicionless searches of travelers’ electronic devices –including their text messages, emails, social media posts, and photographs – when they cross the U.S. border. Under the rubric of “extreme vetting”, the administration now plans to require immigrant and non-immigrant visa applicants to surrender their social media handles, including pseudonyms and aliases, in connection with their applications.

It has also contracted for the creation of an automated program that will scan social media and other websites to generate at least 10,000 “investigative hits” per month, which may lead to visa revocations and deportations. Finally, it retains records of individuals’ social media and other online activities within the files used to inform immigration determinations.

Thus, from the time a non-citizen applies for a visa to her arrival at the border, through her time spent in the United States, the government will be collecting and storing her social media information, possibly scouring her private electronic communications, and continuing to monitor her expressive activities online – and the results of this surveillance may eventually trigger removal proceedings against her.

These extreme vetting measures threaten to chill the expressive and associative activities of any individual who may seek to enter or remain in the United States. Required disclosure of social media handles, including pseudonyms and aliases, deprives individuals of the ability to speak and associate privately or anonymously. Suspicionless searches of travelers’ personal or professional devices at the border represent a gross intrusion not only into their privacy, but into their communications and affiliations as well.

Moreover, the exclusion and removal of activists and other individuals invited to speak in the United States, like Abdel-Magied, denies American audiences the opportunity to hear from diverse viewpoints around the world – a right that the first amendment presumptively protects. (To understand the full first amendment implications of the extreme vetting program, the Knight Institute is litigating a Freedom of Information Act request for records regarding the government’s exclusion of individuals from the country based on their speech, beliefs, or associations.)

Just as the travel ban effectively excludes individuals from this country on the basis of their religion, extreme vetting explicitly excludes individuals from this country on the basis of their statements and beliefs. This is censorship under the guise of immigration enforcement. The public has a right to know how the administration is conducting its new ideological screening test, and at what cost to the broader public discourse.

The following can be attributed to Carrie DeCell, senior staff attorney and legislative advisor at the Knight First Amendment Institute at Columbia University:

“The First Amendment protects everyone in the United States, including foreign citizens studying at American universities. Government lawyers have already considered at length whether proposals to remove people from the country based on their political speech are constitutional, and their answer is almost certainly no. They’re right. Deporting non-citizens on the basis of their political speech would be unconstitutional.”

In November 2023, the Knight First Amendment Institute published two U.S. Immigration and Customs Enforcement (ICE) memos that provide insight into how the First Amendment would limit the Trump administration’s efforts to revoke student visas and remove foreign nationals who express support for Hamas or criticize Israel’s response to Hamas’ attack. The memos were apparently drafted in connection with the first Trump administration’s “extreme vetting” program. The Institute obtained the memos through a Freedom of Information Act (FOIA) lawsuit for records relating to the government’s ideological screening of immigrants and visitors at the border. 

The two ICE memos confirm that proposals to revoke the visas of student and other protestors on the basis of their political speech would be subject to strict scrutiny—the highest level of legal review—and almost certainly held unconstitutional. So too would proposals to use the Immigration and Nationality Act’s security-related ground of inadmissibility to remove individuals who express support for Hamas. Regulations that target political speech on the basis of viewpoint almost never survive strict scrutiny. 

Read the “Constitutional Considerations Relating to Proposed Enhanced Vetting of Aliens in the United States for Counterterrorism Purposes” memo here.

Read the “Inadmissibility Based on Endorsing or Espousing Terrorist Activity: First Amendment Concerns” memo here.

Additional documents obtained through the Knight Institute’s litigation are available here.

For more information, contact: Adriana Lamirande, adriana.lamirande@knightcolumbia.org.

“It turns out that government lawyers have considered at length whether proposals to remove people from the country based on their political speech are constitutional, and the answer is almost certainly no,” said Carrie DeCell, senior staff attorney at the Knight First Amendment Institute. “The First Amendment gives very broad protection to political speech, including to speech that may be controversial or offensive, and that protection extends to non-citizens as well as citizens in the United States.”

The recently disclosed ICE memos include

• “Constitutional Considerations Relating to Proposed Enhanced Vetting of Aliens in the United States for Counterterrorism Purposes,” which 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.” Available here.
• “Inadmissibility Based on Endorsing or Espousing Terrorist Activity: First Amendment Concerns,” which was reviewed and revised by the White House Office of Legal Counsel and recognizes it is likely that, “to the extent the government seeks to regulate the content of speech of aliens [in the United States] through its power to exclude or expel, its laws must meet the dictates of strict scrutiny—that is, be narrowly tailored to achieve a compelling government interest.” Available here.

“The First Amendment is meant to ensure that political debate in this country is open, uninhibited, and free from government interference,” said Alexia Ramirez, legal fellow at the Knight First Amendment Institute. “Deporting non-citizens on the basis of their political speech would end up chilling legitimate political debate about war, human rights, and foreign policy, and it would also be unconstitutional.”

The two ICE memos confirm that proposals to revoke the visas of student demonstrators on the basis of their political speech would be subject to strict scrutiny and almost certainly held unconstitutional. So too would proposals to use the Immigration and Nationality Act’s security-related ground of inadmissibility to remove individuals who express support for Hamas. Regulations that target political speech on the basis of viewpoint almost never survive strict scrutiny. 

In 2017, the Knight Institute filed a FOIA lawsuit seeking documents concerning the government’s claimed authority to exclude or remove non-citizens from the United States based on their speech, beliefs, and associations. In September 2019, the district court ordered ICE to conduct a more thorough search for responsive records, resulting in the release of the two records published today. Read more about Knight Institute v. DHS here.

Documents obtained through this litigation are available on the Knight Institute’s website here.

Lawyers on the case include DeCell and Ramirez of the Knight First Amendment Institute. Catherine Crump and Megan Graham of the Samuelson Law, Technology & Public Policy Clinic at UC Berkeley School of Law previously served as co-counsel.

For more information, contact: Adriana Lamirande, adriana.lamirande@knightcolumbia.org. 

“We are disappointed by today’s decision, which allows the government to hide immigration policies and practices that raise significant First Amendment concerns from public view,” said Catherine Crump, director of the Samuelson Clinic, who argued the case in the Second Circuit in January.

In August 2017, the Knight Institute filed a FOIA request for agency records relating to these “extreme vetting” policies and to the government’s claimed authority to exclude or remove non-citizens from the United States based on their speech, beliefs, and associations. Later that year, the Knight Institute filed a lawsuit, Knight Institute v. DHS, to enforce the request. In September 2019, the district court ordered the agencies to release key portions of records that would shed light on these policies, which the government appealed.

“While these policies nominally apply only to foreigners, they have significant implications for Americans as well,” said Carrie DeCell, senior staff attorney at the Knight First Amendment Institute. “The government should not be conducting ideological screening tests for visitors whose views we are constitutionally entitled to hear.”

In response to the Knight Institute’s lawsuit, the government has released thousands of pages of records relating to the government’s ideological screening policies. These records include internal presentations and memoranda noting First Amendment and other “speech related” concerns raised by the Trump administration’s policies, as well as internal emails and databases discussing hundreds of traveler complaints about intrusive questioning or searches at the border. Taking them together—and reading through excessive redactions—these records reveal how extreme vetting policies threaten the freedom of expression and association of people entering the United States. The records are available in a Knight Institute Reading Room here. 

In addition to reversing the district court’s ruling requiring disclosure of two sets of records, the appeals court remanded the case with regard to a third record. Read today’s decision here.

Read more about the lawsuit here.

Lawyers on the case include, in addition to Crump and Megan Graham of the Samuelson Law, Technology and Public Policy Clinic, U.C. Berkeley School of Law; DeCell, Alex Abdo, and Jameel Jaffer of the Knight First Amendment Institute at Columbia University.

“Neither border officials nor consular officers should be conducting ideological screening tests,” said Jameel Jaffer, executive director of the Knight First Amendment Institute. “The routine collection and long-term retention of social media posts, search histories, and other information relating to expressive and associational activity raises serious First Amendment concerns.”

"The government’s new vetting policies threaten to chill free speech to the detriment of U.S. residents and non-residents alike."Carrie DeCell, Knight Institute Staff Attorney  

Shortly after his inauguration, the president issued an executive order directing agency heads to develop a program of “extreme vetting” of immigrants, refugees, and visitors to the United States, and in May the State Department adopted a questionnaire requesting that certain visa applicants  disclose their social media handles. The Knight Institute filed its FOIA request on August 7 seeking records relating to the government’s consideration of individuals’ speech, beliefs, or associations when making immigration decisions, and any existing or proposed policies relating to the removal or exclusion of non-citizens on those grounds.

“People around the world use social media to express their beliefs, associate with others who share their beliefs, and debate those who don’t,” said Carrie DeCell, staff attorney at the Knight Institute. “The government’s new vetting policies threaten to chill free speech to the detriment of U.S. residents and non-residents alike.”

Thus far, the government has released only a single document—one already posted on a public website—in response to the Knight Institute’s FOIA request. The Institute’s suit seeks an order requiring various government agencies to process the request and disclose responsive records.

Download the complaint and the August 7 FOIA request.

About the Knight Institute

The Knight First Amendment Institute is a non-partisan, not-for-profit organization established by Columbia University and the John S. and James L. Knight Foundation to defend the freedoms of speech and press in the digital age through strategic litigation, research, and public education.

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.

This review signaled that the Biden administration would eventually reverse (or at least narrow) this unjustified and unconstitutional policy. But now the administration is doing the exact opposite. Rather than rescind or restrict this surveillance policy, the administration is seeking to expand it to another 15 million people per year—adding visitors to the United States who do not need visas (including many from European countries).

The existing State Department policy casts a wide net. It requires nearly all visa applicants to disclose all social media handles they’ve used during the previous five years on any of 20 different platforms—including Facebook, Twitter, YouTube, and others. The State Department and the Department of Homeland Security can retain this information indefinitely, share it with other federal agencies, and disclose it, in some circumstances, to foreign governments.

The dragnet approach and the indefinite retention of social media information have far-reaching effects, even if they are hard to measure. Many people—scholars, artists, and activists—will change the way they use social media if they know that the U.S. government is systemically surveilling their speech and associations. Some will steer clear of controversial topics for fear that their speech might be misunderstood, opting for self-censorship over visa delays or denials. (There may be good reason for self-muting: The nuances of different languages, cultures, and contexts make interpreting social media posts extremely difficult, potentially leading U.S. officials to bar foreigners from entry through misunderstandings.) Would-be travelers may also hesitate to engage with others online, concerned that U.S. officials may someday impute an online acquaintance’s speech to them. This concern is well-founded: In 2019, a border agent at Boston Logan International Airport reportedly turned away an incoming Harvard freshman from Lebanon because of his friends’ social media posts.

Human rights activists, political dissidents, and others who use pseudonymous handles have additional reasons to fear the repercussions of revealing their social media handles to the U.S. government. These travelers face the risk that U.S. officials will intentionally share their handles with foreign governments or inadvertently share them with other third parties (through hacks, for instance). Rather than risk exposure to retaliation by repressive regimes, many of these travelers will simply stop using social media, while others will decide not to travel to the United States at all—decreasing opportunities for personal connection, professional collaboration, and cultural exchange on both sides of the border. Because of these chilling effects, more than 50 civil-society groups have condemned the State Department policy and two documentary film organizations have sued to challenge it. (Our organization, the Knight First Amendment Institute, represents the plaintiffs in that case.)

The government has never adequately explained, let alone provided evidence of, the need for this policy. Obama-era pilot programs failed to show that social media screening is a useful visa vetting tool. And during the early days of the Biden administration, the Office of Information and Regulatory Affairs, which analyzes the cost and benefits of regulations, rejected a previous DHS proposal to expand the State Department policy; it concluded that DHS had failed to demonstrate the policy’s “practical utility” and to justify its “monetary and social” costs.

And yet the Biden administration is now doubling down on the Trump-era policy by expanding it. Under the administration’s proposal, U.S. Customs and Border Protection (CBP) would require foreign travelers who apply to enter the United States under the Visa Waiver Program to turn their social media handles over to the government. (At present for this group, submitting that information is voluntary.)

The question this move demands is: Why? More than a year after the Biden administration began a review of the usefulness of social media screening for visa vetting purposes, the administration has offered no evidence or explanation to justify the State Department policy it inherited from the Trump administration. Yet through the CBP proposal, the Biden administration now seeks to adopt that policy as its own. That’s why the Knight Institute this month filed a Freedom of Information Act lawsuit seeking to bring the findings of the administration’s review to light.

Whatever information that suit turns up, it’s clear that the Biden administration’s proposed new policy would vastly expand the social media surveillance dragnet cast by the Trump administration, with terrible consequences for freedoms of speech and association. This is the kind of policy we ordinarily associate with authoritarian states, not open societies. It does a disservice to our democratic values, and from all available evidence, it’s not even effective. Biden should be ditching this dragnet, not expanding it.

For example, ICE has categorically withheld the legal guidance that it uses when enforcing the Immigration and Nationality Act’s “endorse or espouse” provision, which states that “any alien . . . who endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity” is inadmissible. If given a broad sweep, that text plainly raises First Amendment concerns. In fact, ICE acknowledged the existence of a memo entitled “Inadmissibility Based on Endorsing or Espousing Terrorist Activity: First Amendment Concerns,” which it seems to have circulated to the attorneys in its National Security Law Division as a reference text. But we don’t know how ICE is answering the serious constitutional questions raised by the endorse or espouse provision because the agency has completely redacted the memorandum.

The State Department responded similarly. The Department turned over copy after copy of its Foreign Affairs Manual, the “authoritative source” that “codifie[s]” policies for staff reference, but redacted in every instance its interpretation of the endorse or espouse provision. It’s difficult to see how this redaction could possibly be justified. The Department didn’t redact its discussion of the other speech-related provision in the Immigration and Nationality Act (INA)—the incitement provision. And it didn’t redact its discussion of a previous incarnation of the endorse or espouse provision, which—in an interpretation out of step with First Amendment values—the Department read to cover “irresponsible expressions of opinion.”

When it comes to current policy, the State Department has provided blank space, which makes us wonder whether the administration’s view today is just as broad—or even broader. Indeed, as far as we can tell, the State Department released no records concerning its proposal to collect years’ worth of social media identifiers from the fifteen million foreigners who apply for visas each year. The policy is out of proportion to any legitimate security interest, but well-tailored to allowing bureaucrats to scour the visa applicant pool for voices unfriendly to the administration.

The Office of Legal Counsel (OLC), for its part, turned over nothing but blank pages. That secrecy is of a piece with OLC’s insistence that the public has no right to see the opinions that constitute the “binding law of the executive,” even where, as here, they determine individuals’ concrete rights. (We’ve challenged that position in another case, and we’re challenging it here.)

This excessive secrecy conceals the extent to which the government is (mis)using immigration laws to exclude critical voices from the United States. In turn, American listeners may be deprived of the chance to hear from speakers who choose to self-censor rather than run afoul of this administration’s immigration policies––or who speak out and find themselves shut out. For every Graham Greene or Pablo Neruda visibly excluded by a political litmus test, in all likelihood, dozens of softer voices fall quiet entirely. Like any other effort to punish dissent or purchase silence, tying immigration benefits to ideological conformity distorts the marketplace of ideas. And to what end? As Justice Thurgood Marshall once objected, “the government has no legitimate interest in stopping the flow of ideas.” For just that reason, this White House has no right to “selectively pick and choose which ideas to let into the country.”

The records the Knight Institute has obtained are available on our case page, where you can also follow the progress of our litigation. The Samuelson Law, Technology & Public Policy Clinic at UC Berkeley School of Law serves as co-counsel.