Do foreigners have free speech rights in the United States?

Two Indian scholars are among those targeted by Trump administration for what it calls 'support' for Hamas. In India, foreigners don't enjoy constitutional protection of freedom of speech. But the situation is more complex in America , because of its First Amendment. Here's a short explainer on the legal ambiguity
Ranjini Srinivasan and Badar Khan Suri have been at the receiving end of America’s new deportation policy targeting those seen to be sympathising with the Palestinian group Hamas. The latter is banned as a terrorist organisation by US, and the Trump administration has been clear that foreign scholars in the American university system found supporting Hamas will have their visas revoked and deported. But can merely expressing a political opinion attract deportation proceedings? Does freedom of speech only apply to citizens? What does Indian law say in similar context? Here’s a breakdown of the legal nuances: What’s the Indian legal view?

Article 19(1)(a) of the Constitution of India provides for the fundamental right to freedom of speech and expression. The article begins with ‘All citizens shall have the right... to freedom of speech and expression’. Therefore, the position in India about applicability of this right is unambiguous and applies only to citizens, not foreigners. What about the US First Amendment? Are foreigners in US with legal visas covered?

US Constitution states that ‘Congress shall make no law... abridging the freedom of speech’. Moreover, the constitution makers in US spoke about ‘the people’, which could be extended to any person who is validly within the territory of the country, a throwback to America’s founding. Thus, given that the First Amendment essentially is a restriction on Congress, from plain reading it applies even when Congress is making a law governing non-citizens of the country with valid visas. One can also argue that this applies to illegal immigrants. In fact, on this basis, institutions like Columbia University’s Knight First Amendment Institute have called Trump’s deportation of students partaking in political pro-Palestine speeches, as illegal and unconstitutional.

What is Trump’s position? However, the current US administration is likely to take the defence of the interplay of US constitution with other existing statutes that regulate the activities of non-citizens. In the past, similar ploys have been used by other presidents to stifle political opposition. These are some examples.

Alien Enemies Act 1798 was introduced by president John Adams to restrain political debate, convicting multiple non-citizens, which were later overturned when president Jefferson came to power. During the 1950s at the height of the anti-communism wave in US, Congress passed laws banning the Communist Party and allowing the deportation of noncitizen members. Robert Galvan, a longtime US resident, faced deportation for past Communist Party membership before the laws were enacted. The US Supreme Court upheld his deportation, though Justice Hugo Black dissented, arguing it was unfair to punish Galvan for past actions which were legal.

In Reno v. American Arab Anti-Discrimination Committee, US govt sought to deport eight legal US residents for their involvement in a Palestinian liberation group. The group argued they were being selectively targeted for their political views, but the US govt shifted to immigration law violations instead. The Supreme Court, with Justice Scalia writing the majority opinion, ruled that non-citizens unlawfully in US cannot use selective enforcement as a defence against deportation. However, the question of rights of lawful non-citizens was per se not touched upon.

So, there is no clear-cut answer whether the First Amendment protects non-citizens. US Constitution allows for interpretation, particularly regarding undocumented immigrants, and the Supreme Court has yet to make a definitive ruling. Additionally, the First Amendment does not specify whether “the people” entitled to freedoms like speech, religion, and assembly refers strictly to citizens or includes a wider group, such as visitors, students, and workers in the US.