First Amendment law pays little attention to noncitizens’ free speech interests. Perhaps noncitizens simply enjoy the same First Amendment rights as citizens. However, ambivalent and sometimes hostile Supreme Court precedents create serious cause for concern. This Essay advocates moving noncitizens’ free speech from the far periphery to the center of First Amendment law. Professor Magarian posits that noncitizens epitomize a condition of speech inequality, in which social conditions and legal doctrines combine to create distinctive, unwarranted barriers to full participation in public discourse. First Amendment law can ameliorate speech inequality by promoting an ethos of free speech obligation, amplifying the voices of politically and socially disadvantaged speakers while encouraging more mainstream, advantaged audiences to hear those voices out. Centering noncitizens’ free speech would establish a paradigm of free speech obligation. That paradigm would directly ensure noncitizens’ First Amendment rights while also, by extension, strengthening speech protections for other groups afflicted by speech inequality—identity minorities, political dissidents, and social outcasts. As to immediate, particular outcomes, centering noncitizens’ free speech would necessarily bar the government from deporting noncitizens in retaliation for their political speech and from imposing special constraints on individual noncitizens’ spending to support candidates for public offices.
Margarian, Gregory P.
"Centering Noncitizens' Free Speech,"
Georgia Law Review: Vol. 56:
4, Article 9.
Available at: https://digitalcommons.law.uga.edu/glr/vol56/iss4/9