The First Amendment promises to change our world, but like any legal doctrine, its radical potential is stymied by the status quo bias of the legal system that administers it. For migrants, I urge here, this guarantor of free speech and expression does even less than it does for other subordinated groups. The formal and informal disabilities that migrants face in the public square—like the omnipresent threat of deportation—make existing First Amendment doctrine a weak and unreliable ally in the fight for migrants’ rights. It is possible to imagine another, emancipatory First Amendment law that might better facilitate the alteration of migrants’ relationship to our polity; but getting there would require jettisoning cherished elements of current doctrine, like the speech-action distinction and the law’s commitment to neutrality with respect to the social status of the speaker. Unless the doctrine commits to elevating the powerless over the powerful, free speech will always fall short of its potential to help to liberate the downtrodden of all stripes, especially migrants.
"A First Amendment Law for Migrant Emancipation,"
Georgia Law Review: Vol. 56:
4, Article 2.
Available at: https://digitalcommons.law.uga.edu/glr/vol56/iss4/2