By John Q. Hosedrinker 
In a recent case, Judge Amul Thapar argued that the First Amendment’s protection of free speech may not definitively apply to non-citizens within the United States. This assertion contradicts the Supreme Court’s ruling in Bridges v. Wilson (1945), which explicitly recognized free speech rights for resident aliens. Thapar’s historical argument, citing the Alien and Sedition Acts, is also flawed as these acts were widely criticized and deemed unconstitutional due to their infringement on speech, and were meant to apply to both citizens and non-citizens. Furthermore, restricting the speech of non-citizens would inevitably harm the free speech rights of citizens who wish to hear from them.
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Yes, the First Amendment applies to non-citizens present in the United States. This might seem like a simple statement, but it’s a fundamental principle of our legal system, and understanding it is crucial. The U.S. Constitution, in its brilliance, uses the word “people” when it comes to many of the rights it guarantees, not just “citizens.” This seemingly small distinction carries immense weight.
The core idea is this: the First Amendment restricts the government. It explicitly states that the government cannot infringe on the rights to freedom of speech, religion, the press, assembly, and the right to petition the government. Crucially, the amendment doesn’t differentiate between citizens and non-citizens when it comes to this protection. It applies to everyone within U.S. borders. Therefore, it’s not a matter of debate – the government is prevented from infringing on these rights regardless of citizenship status.
It’s often mentioned that some laws on the books do appear to diminish First Amendment rights for non-citizens, such as the law regarding deporting those who “endorse or espouse terrorist activity.” It’s worth noting, however, that the First Amendment stands as a foundational principle. The fact that certain laws might seem to contradict this doesn’t invalidate the amendment itself, and these laws are open to challenge in the courts. This means that a non-citizen’s freedom of speech, while potentially subject to legal limitations, is still fundamentally protected by the First Amendment.
This principle extends to other constitutional rights as well, although the interpretation can sometimes be more nuanced. The Fourteenth Amendment, for example, defines citizenship but also emphasizes that all “persons” within the U.S. are entitled to due process and equal protection under the law. It clarifies that rights are not solely for citizens, but for all who are subject to the jurisdiction of the United States.
However, the application of the Second Amendment is more complex. While the First Amendment’s protections are generally extended to non-citizens, the Second Amendment, which concerns the right to bear arms, has seen varying interpretations. It uses the word “people” as well. While some argue this should encompass everyone, including non-citizens, legal precedents have established a more restricted view. Non-citizens, especially those on specific visas, often face limitations regarding firearm ownership, creating a distinction from the broader protection of free speech. The question is “does the government infringe” and the answer should be no.
The Supreme Court has, in fact, addressed this directly over the years. Cases like *Bridges v. Wixon* have affirmed that non-citizens are protected by constitutional rights like due process and freedom of association. Further, the Supreme Court has extended these constitutional protections to *all* aliens within the United States, including those who may have entered unlawfully. This principle, established over time, is that those physically within the U.S., regardless of their immigration status, are considered “persons” and entitled to the protections guaranteed by the Fifth and Fourteenth Amendments.
It’s important to understand that the Constitution’s protections are not some kind of reward given only to those who behave in a way the government approves of. The Constitution’s purpose is to restrain the government, not to dictate how the people should act. That’s why those rights can’t be taken away simply because someone doesn’t agree with them.
In short, while the legal landscape can be complex and subject to interpretation, the core principle remains clear. The First Amendment’s protection of free speech, and indeed, many other constitutional rights, extends to non-citizens who are present within the United States. It’s a cornerstone of American law, ensuring that everyone within our borders can express themselves freely, regardless of their origin or immigration status.