The Fine Print | Notes from the Legal Director
April 28, 2025 | Margaret Valentin & Daanesh Jamal
How Free is My Free Speech? Understanding the Intersection of Freedom of Speech and Immigration Status Under the 2nd Trump Administration an Executive Summary
This educational document was produced by the Muslim Legal Fund of America, authored by Margaret Valentín and Daanesh Jamal with support from Kathryn Brady and Sufia Khalid. We present information on the freedom of speech in the United States, how that freedom intersects with an individual’s immigration status, and what legal advocates can do to challenge the deportation of non-citizens. This document serves as an overview. It will be updated as facts evolve. Nothing in this document should be read as legal advice. Readers should consult First Amendment and/or immigration attorneys to address their specific circumstances.
Protected Speech v. Unprotected Speech
There is no absolute right to “freedom of speech” in the United States. Some speech is “protected” under the First Amendment, and other speech is “unprotected.” Unprotected speech includes incitement to illegal conduct that intends and is likely to incite imminent lawless action, defamation, and obscenity, inter alia. If speech is “unprotected,” the government can abridge the speaker’s free speech rights without running afoul of the First Amendment—so long as the government’s restrictions pass rational basis review (i.e., the restrictions are not arbitrary or capricious).
Protected speech is all speech that does not fall within the “unprotected” categories.
Even for protected speech, the government can still restrict free speech rights if the government proves there is a compelling government interest, and it narrowly tailors its action to achieve that interest.
The Supreme Court has held that while “independent” advocacy—advocacy not coordinated with or directed by a designated foreign terrorist organization remains constitutionally protected speech. However, speech coordinated with, or made at the direction of, designated foreign terrorist organizations is not protected by the First Amendment.
Congress has criminalized such coordinated/directed advocacy as material support of terrorism. Since the Supreme Court declined to define clear boundaries between independent advocacy and coordinated/directed advocacy, the current administration will likely ruthlessly exploit the grey area to aggressively prosecute individuals expressing pro-Palestinian viewpoints.
Where Freedom of Speech meets Immigration Status
U.S. citizens possess greater legal protections than non-citizens. Within the category of non-citizens, legal permanent residents possess greater legal protections than non-immigrants, including those on work and student visas. Visa holders have the lowest level of legal protection. The Immigration and Nationality Act (1952) grants the executive branch broad powers to deport non-citizens.
Visa holders attempting to (re-)enter the United States are subject to the discretion of Customs and Border Protection officers who may refuse the visa holder entry on a variety of criminal, national security, and foreign policy grounds, including “endorsing or espousing” terrorist activity, persuading others to do the same, or persuading others to support a terrorist organization. The relevant statute declines to define exactly what “endorsing” or “espousing” terrorism means, and thus, offers wide latitude to the current administration to penalize otherwise protected political speech. The Secretary of State may also revoke a non-citizen’s visa “in his discretion” at any time.
Visa holders within the United States may become deportable at the discretion of the Secretary of State if the Secretary has “reasonable ground to believe” that the non-citizen causes “potentially serious adverse foreign policy consequences.” To become deportable simply means that the individual can be placed into removal proceedings, not that they will necessarily be removed from the country.
All non-citizens, including legal permanent residents, may also become deportable at the discretion of the Secretary of State, if the Secretary determines that the legal permanent resident “compromise[s] a compelling United States foreign policy interest.” The “compelling” interest standard, which applies when the non-citizen is engaged in protected speech, is a higher bar than the “serious adverse” standard, which applies when a non-citizen engages in unprotected or unlawful speech.
As mentioned above, in theory, a U.S. citizen may perform “independent” advocacy for a designated foreign terrorist organization without fear of punishment. In practice, even circumstantial or tangential evidence from social media has been enough to prove coordinated/directed advocacy in court. Given the ambiguity that surrounds the definition of “independent” advocacy, U.S. citizens can face serious penalties for what they thought was protected speech. If their advocacy is found to be insufficiently independent, they may suffer considerable criminal and/or civil liabilities.
What can we do?
Legal advocates possess three possible avenues to challenge the chilling of non-citizens’ freedom of speech:
1) Argue that the individuals charged (e.g., Mahmoud Khalil, Rümeysa Öztürk) do not meet the standards set forth in the Immigration and Nationality Act, whether “serious adverse” consequences to or compromising a “compelling” foreign policy interest.
2) Argue that the various grounds in the Immigration and Nationality Act that justify rendering non-citizens inadmissible or deportable — such as the meaning of “endorsing” or “espousing” terrorism — are unconstitutional because of their vagueness and violation of due process.
3) Argue that the government’s actions against the individuals charged are retaliatory/selective prosecution, though this would require demonstrating particularly “outrageous” discrimination by the government.
Civil society, including and especially ordinary citizens, also has actionable possibilities of their own, chief among them being:
1) Pressure their congressional representatives to pass a statute which unequivocally states that non-immigrants and legal permanent residents have the constitutional rights to the same level of freedom of speech as U.S. citizens do.
2) Implore the Courts to uphold their commitment to Bridges v. Wixon and unequivocally state that non-immigrants and legal permanent residents have the constitutional rights to the same level of freedom of speech as U.S. citizens do.
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The Fine Print | Real power and protection is always hidden in the fine print. MLFA brings the fine print to life with this series of articles, cutting through the noise to break down the rights, risks, and realities you need to know. No loopholes, no confusion, just clear, unapologetic insight into the laws that shape the lives of Muslims in America.
