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The First Amendment
The First Amendment protects expression—primarily words, not deeds. Its enumerated actions, peaceable assembly and petitioning the government, are narrow. Aside from those, it almost exclusively protects words. Since the Bill of Rights’ ratification in 1791, it has unquestionably protected Americans. But the extension of those protections to aliens inside the United States developed slowly, unevenly, and without early doctrinal clarity—and not much more now. Who is protected, under what circumstances, and to what extent remains unsettled 235 years later.
The first hints of constitutional protection for aliens appear not in a majority opinion but in Justice Brewer’s dissent in Fong Yue Ting v. United States (1893), where he argued that the Constitution constrained the government’s treatment of resident aliens, especially in matters of due process. (Ed.: though paraphrased, keep the concepts described in mind as they’ll be important later.) That idea sat dormant for decades.
Critically, early cases addressed resident aliens—individuals who had settled in the country and developed ties to the national community—not mere visitors. That distinction is not cosmetic; it is structural. The Court’s earliest gestures toward alien constitutional protection were confined to people who lived here, worked here, and were woven into the nation’s fabric. The gap between what the Court said about residents and what it never said about visitors matters.
It was not until 1945, in Bridges v. Wixon, that the Court articulated a modern rule: once an alien is lawfully admitted and integrated into the national community, they are protected by the Bill of Rights. But even that rule was unstable. Knauff v. Shaughnessy (1950) held that aliens seeking admission had no First Amendment speech protection. Harisiades v. Shaughnessy (1952) held that lawful resident aliens could have reduced protection when their conduct was at issue. These early cases do not form a coherent rule; they show only that speech protections for aliens were uneven and unsettled.
Still, one point has remained constant from 1791 to 2026, and is best emphasized with the oft‑misunderstood line from Justice Holmes in Schenck v. United States (1919):
The First Amendment protects words; it does not inherently insulate an individual speaking or writing them from potential consequences related to those words. And before people scroll down to the comment section to tell me I’m a fascist with no idea what I’m talking about, the First Amendment recognizes a narrow set of unprotected categories. At the top is incitement, which requires intent to provoke—and likelihood of producing—imminent lawless action (Brandenburg v. Ohio). Next are true threats, where a speaker communicates a serious intent to commit unlawful violence toward a specific person or group (Virginia v. Black). Below that sit fighting words, face‑to‑face abuse likely to provoke an immediate breach of the peace (Chaplinsky v. New Hampshire). Defamation follows: false factual assertions that materially injure reputation (New York Times v. Sullivan for public figures; Gertz v. Robert Welch, Inc. for private individuals). Obscenity comes next, defined by its prurient appeal, patent offensiveness, and lack of serious value (Miller v. California). Last is speech integral to crime, where the communication itself is the mechanism of extortion, fraud, conspiracy, or similar unlawful conduct (Giboney v. Empire Storage & Ice Co.).
Types of Aliens and Degrees of Protected Speech
For resident aliens—those lawfully admitted for permanent residence—the line between protected words and unprotected acts matters. Once expression becomes conduct, protection narrows, with deportation as an added consequence. Non‑resident aliens—nonimmigrants, parolees, and those granted relief—occupy thinner doctrinal space. Unlawfully present aliens do not lose First Amendment protection solely because of status, but their relationship to the sovereign differs: they cannot form domicile without consent, and their presence can be acted on independently of anything they say. Across categories, the government may rely on information gathered before entry or during presence, with margins for error varying accordingly.
Early cases reflected the same uneven treatment. Knauff denied speech protection to aliens seeking admission; Harisiades allowed limits on resident aliens when conduct intersected with governmental interests. Modern litigation shows the same pattern. Then‑expired DACA recipient Daniela “Dani” Vargas’ 2017 suit was mooted before motive was reached. Mortgage‑fraudster scumbag turned immigration activist Ravidath “Rai” Ragbir had already been ordered removed in 2006 when he claimed in 2018 that ICE sought to execute his final order in retaliation for his activism-related ICE criticism, but the Second Circuit thankfully refused to restrain ICE’s discretionary authority though the district court judge, Katherine Forrest had already created a new “freedom [from restraint] to say goodbye” which ultimately allowed him to be pardoned by the outgoing Biden Administration. Maru Mora‑Villalpando’s public statements appeared in ICE paperwork in 2018, but a Western District of Washington judge didn’t treat them as a bar to enforcement. Independent “journalist” Mario Guevara—ordered removed in 2012 as a visa overstay—tried to argue his June 2025 arrest in DeKalb County, Georgia was retaliation for his anti‑ICE coverage rather than participation in a declared unlawful assembly. DACA beneficiary Ya’akub Vijandre’s 2025 suit rejects the U.S. Government’s claim his photojournalism posted on social media glorifies terrorism, but remains unresolved. Local Nashville Univision correspondent Estafany Rodriguez Flores claims her March 2026 arrest wasn’t about her having overstayed her admission, but instead because of her critical anti‑ICE reporting. These cases show that alien speech is protected, yet immigration status gives the sovereign independent grounds to act, leaving courts reluctant to treat ICE motive as an inherent First Amendment violation.
A final axis concerns foreign‑affairs interests. Congress recognized that an alien’s activities may carry foreign‑policy implications distinct from domestic expressive activity. Foreign‑policy consequences form a separate category the Executive may weigh when assessing continued presence.
Statutory Origins and Purpose
In 1952, Congress created the Immigration and Nationality Act’s (INA) foreign‑policy clauses—8 U.S.C. § 1182(a)(3)(C) and 8 U.S.C. § 1227(a)(4)(C), Sections § 212(a)(3)(C) and § 237(a)(4)(C) of the INA respectively (Ed. I normally use only statutory citations rather than short-code, but the references are frequently repeated here)—to address situations where an alien’s entry or presence generated diplomatic friction or undermined U.S. interests abroad. These provisions are narrow foreign‑affairs tools regulating the foreign‑policy consequences of entry or continued presence, not domestic disputes or expressive activity.
Section 212(a)(3)(C) governs admissibility. It renders inadmissible any alien whose entry or proposed activities the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign‑policy consequences. It operates through consular determinations that generate no judicial record.
Section 237(a)(4)(C) on the other hand, authorizes DHS to charge deportability when an alien’s continued presence—not just proposed activities—would have the same foreign‑policy effect. It begins with a foreign‑policy determination, but unlike § 212(a)(3)(C), doesn’t just rely on executive judgments, but requires a finding by an Immigration Judge as a neutral trier of facts.
The statutory design is simple: these clauses regulate foreign‑policy consequences of entry or presence and activities. They manage external political effects, not domestic disputes, and give the Executive a mechanism to act when an alien’s activities intersect with foreign‑affairs interests.
The pre‑2023 record is all but nonexistent. Section 212(a)(3)(C) has no known, publicly documented applications, and Section 237(a)(4)(C) has a single published case—Matter of Ruiz-Massieu, 22 I&N Dec. 833 (BIA 1999), involving Mario Salvador Ruiz‑Massieu, a corrupt former Deputy Attorney General of Mexico arrested in the United States for attempting to smuggle money out of the country—with no subsequent developments. (Ed. Technically, Ruiz‑Massieu was ordered deported under former § 241(a)(4)(C)(i), the pre‑1996 equivalent of § 237(a)(4)(C).) Consular practice may have involved foreign‑policy determinations, but those matters leave no public trace and cannot be quantified. Secondary sources describe Cold War‑era concerns about foreign influence, but they do not supply evidence of actual statutory use. The defensible conclusion is narrow: the clauses existed, were almost never invoked in publicly visible proceedings, and the historical record is too sparse to support any claims about consistent practice or broader operational patterns.
Post‑October Surprise: The Speech–Conduct Campus Collision
The overwhelming and sustained military response by Israeli Defense Forces to the October 7, 2023 Hamas attacks in Israel launched from the Gaza Strip triggered a surge of campus unrest in the United States, mixing expressive activity with disruptive conduct that outsiders—including DHS—often failed to distinguish. The INA’s foreign‑policy clauses leave “potentially serious adverse foreign‑policy consequences” undefined, assigning the determination to the Secretary of State. On March 7, 2025, Secretary Marco Rubio issued a memorandum designating two Columbia University students as deportable under § 237(a)(4)(C), based on DHS, ICE, and HSI assurances.
The INA protects speech, but regulates conduct, and authorizes removal when the Secretary has reasonable ground to believe an alien’s presence or activities would have potentially serious adverse foreign‑policy consequences. A single episode of unrest may contain expressive elements, disruptive behavior, and foreign‑policy implications; the statute does not require isolating one dimension from the others. It requires only a foreign‑policy interest and a reasonable belief that the alien’s presence adversely affects it.
Rubio’s memorandum treated post‑October 7 anti-semitic escalation as detrimental to the administration’s foreign‑policy interest in combating antisemitism globally. The statutory language seemingly permits that breadth. Foreign‑policy harm is defined by the Executive, and courts have historically deferred in similar foreign policy-related immigration statutes. The memorandum reflects a foreign‑policy judgment: certain individuals and their actions undermine a stated foreign‑policy objective, and certain noncitizens’ presence contributes to that adverse consequence. The harm need not occur abroad; it must affect a foreign‑policy interest.
The weakness lies in the admission–presence divide. § 212(a)(3)(C) governs entry and proposed activities; § 237(a)(4)(C) governs continued presence and actual activities. The memorandum treated them as interchangeable, as if a foreign‑policy judgment sufficient for inadmissibility automatically established deportability. The statutory triggers, evidentiary posture, and institutional actors differ. A consular determination under § 212(a)(3)(C) does not supply the determination § 237(a)(4)(C) requires. Secretary Rubio has routinely made this error when announcing proudly, ‘I have revoked so-and-so’s Green Card,’ as if that were something he—rather than an Immigration Judge—could unilaterally do.
The memo’s construction itself was poor: sidebar bleed, inconsistent spacing, missing formal elements, misplaced signature, legacy sensitivity markings signaling CUI non‑compliance, and classification controls despite being unclassified. These defects reflect haphazard handling of a such an important issue with real world consequences. The memo has been treated as polished and deliberate; it wasn’t—the latter not when it came time to put ink to paper. The almost amateurish nature of it underscores how thin the record was and how far the court stretched it.
Over the next seventeen months, additional aliens have drawn State’s ire: certain Cubans, Venezuelans, and Iranians, meaning more memoranda will likely surface as litigation forces their release.
The Cast of Characters
The modern application of § 237(a)(4)(C) has thus far resulted in the arrest, attempted arrest, or foreign-policy designations of six aliens marking the first sustained use of the clause in three decades. Their cases reveal the operational pattern: the foreign‑policy determination triggers the arrest, but litigation forces retreat into conventional removal grounds—misrepresentation, fraud—except in one case where EOIR ordered removal under the foreign‑policy clause.
Pre‑memo arrests and attempted arrests included:
- Yunseo Chung, an adopted South Korean Green Card holding Columbia University undergraduate student, targeted for removal following the 07 March 2025 State Department memo that also included Mahmoud Khalil. Chung Successfully obtained an injunction on 25 March 2025 preventing her arrest.
- Mahmoud Khalil, a Columbia University graduate student from Jordan/Algeria arrested 08 March 2025, upon the request of Secretary of State, Marco Rubio based on allegations he engaged in activities supporting Hamas during campus demonstrations, including coordinating protest logistics and distributing materials;
- Ranjani Srinivasan, a Columbia University doctoral candidate who self-deported to Canada on 11 March 2025 to avoid arrest after her student visa was revoked due to her alleged involvement in activities, supporting Hamas, and advocating violence, during campaign protests;
- Bader Khan Suri, a Jordanian national arrested 19 March 2025 near his off‑campus residence, based on claims he engaged in activities supporting Hamas, including organizing campus protests and maintaining social‑media accounts amplifying pro‑Hamas messaging, and whose wife is the daughter of a a prominent, longtime Hamas official, a connection that drew additional federal scrutiny.
- Rümeysa Öztürk, arrested on 25 March 2025, on a Boston-área street while on the phone with her mother based on claims, she engaged in activities, supporting Hamas, including a co-authored op-ed in the Tuft’s Daily criticizing the university’s response to the war; and
- Mohsen Mahdawi, a perennial Columbia University graduate student arrested 14 April 2025, based on his leadership of and participation in pro-Palestinian protests on campus, and whose past derogatory statements about using firearms to kill Jews—initially reported by a firearms dealer he trained—were later corroborated by federal investigators.
The cases of Khalil and Mahdawi show the modern pattern: the foreign‑policy determination initiates arrest, but removal proceeds on conventional grounds. The immigration court agency, the Executive Office for Immigration Review (EOIR) can decide deportability without touching the Secretary’s foreign‑policy judgment though Khalil very much initially was ordered deported based upon it. The clause functions as trigger, not terminus. Removal can sometimes proceed on unrelated grounds, leaving the foreign‑policy determination intact but untested.
A Premature Party on FIRE
In response to the memorandum of March 7, 2026, the Foundation for Individual Rights and Expression (FIRE), filed suit against Marco Rubio in his official capacity on August 6, 2025 in the Northern District of California (NDCA), on behalf of the Stanford Daily, Jane Doe (a noncitizen), and two U.S.‑person plaintiffs. Jane Doe was the only plaintiff with theoretical exposure to enforcement. While immigration law contradicts residence for non-immigrants, venue doctrine does not incorporate the INA’s definition, so the venue was technically appropriate because all plaintiffs lived in the district, and venue doctrine treats students as residing where they attend school.
However, while appropriate, NDCA was arguably not the proper forum. Under 28 U.S.C. § 1391(e)(1)(A) and (B), the case belonged in Washington, D.C., where all defendants work and all operative events occurred. Unfortunately—for reasons unknown—DOJ declined to challenge venue or seek transfer, surrendering the ability to move the case to the district where foreign‑policy deference is strongest. FIRE litigated in a forum predisposed to treat the memo as suppressive of free speech rather than triggering of foreign policy-related consequences.
The record showed the enforcement cycle had already begun running its course. At least four high-profile aliens had been arrested or self‑deported since the memo was signed, and two of the arrests of Columbia students were resolved on conventional grounds. None had been removed under § 237(a)(4)(C). None had been deported for speech. Jane Doe had never been arrested or charged.
DOJ argued lack of standing. FIRE reframed the memo as a credible threat of future enforcement. Jane Doe’s theoretical exposure was enough for the court to reach the merits.
The court held FIRE had standing only to challenge prospective chilling effect. But on the merits, it went further: after adopting AAUP’s findings as if they were evidentiary record, it held that the statutory foreign‑policy grounds—1182(a)(3)(C)(iii), 1201(i), and 1227(a)(4)(C)(i)—are unconstitutional as applied to enforcement based on protected speech. The injunction bound only the named plaintiffs and issued no classwide relief. It did not disturb prior enforcement actions or ongoing removal proceedings.
A Ruling Built on Sand
FIRE’s victory is likely short‑lived. Wise’s decision rests on a foundation unlikely to survive appellate review. By adopting AAUP’s findings wholesale, he treated a nine‑day Massachusetts bench trial as binding fact for a different case, different plaintiffs, and a different record. That move allowed him to convert an unwritten enforcement pattern into a constitutional defect in the INA’s foreign‑policy provisions.
The Supreme Court has never permitted a district court to invalidate immigration statutes on the theory that foreign‑policy grounds cannot be applied when underlying conduct is predominantly expressive. The Court has consistently treated exclusion and deportation decisions as political‑branch judgments about presence and foreign relations, even when the record includes speech.
Wise mischaracterized the provisions as speech‑policing devices rather than foreign‑policy tools. He ignored the acts‑versus‑words distinction: aliens are removable for conduct implicating foreign relations, not opinions. He disregarded precedent holding that aliens outside the United States possess no First Amendment rights and that there is no constitutional right to a visa or admission. Knauff, Mezei, Harisiades, Reno v. AADC, and Mandel all affirm that political branches may exclude or remove aliens for foreign‑policy reasons even when conduct includes speech.
Wise subjected foreign‑policy inadmissibility and deportability to strict scrutiny whenever conduct includes expressive elements. That cannot be reconciled with plenary‑power doctrine or the Court’s repeated admonition that immigration decisions grounded in foreign affairs receive great deference.
Nonimmigrants are guests; immigrants are probationary. Their presence is conditional, and foreign‑policy determinations are part of that conditionality. Wise treated them as domestic speakers with full constitutional protection against foreign‑policy regulation. That inversion is unlikely to survive review. The Ninth Circuit will confront a ruling that invalidates foreign‑policy grounds based on expressive conduct, contradicts Supreme Court precedent, and rests on borrowed factual findings. FIRE won a sweeping judgment, but one like the biblical parable, one built not on rock, but on sand.
Conclusion
This case will not become another Trump v. Barbara. Barbara turned on constitutional text, historical meaning, and the limits of judicial power to define the Fourteenth Amendment’s citizenship clause. It was a dispute about what the law means. FIRE’s case is not. It concerns how far a district court may go in rewriting the INA’s foreign‑policy components when the record shows operational activity rather than just expression, and when Congress has already assigned foreign‑policy judgments to the Executive branch.
The better analogue is Trump v. Hawaii. In it, SCOTUS reaffirmed that immigration decisions grounded in foreign affairs receive broad deference, even when the underlying conduct includes speech or association. The Court refused to constitutionalize foreign‑policy determinations or subject them to strict scrutiny. Wise’s ruling does exactly what Hawaii forbids: it turns expressive conduct into a constitutional shield against foreign‑policy regulation and uses that shield to disable statutory tools Congress enacted for national‑interest protection.
Barbara was a case about constitutional text and the meaning of “subject to the jurisdiction.” Hawaii was a case about foreign‑policy deference and the limits of judicial review over immigration decisions. FIRE’s case sits squarely in the latter category. The Ninth Circuit will not treat Wise’s opinion as a Barbara‑style clarification of statutory meaning. It will treat it as a Hawaii‑style intrusion into foreign‑policy judgments the Constitution commits to the political branches.
FIRE won a district‑court judgment. But the terrain here is foreign‑policy deference. On appeal, that will matter. This case will not reshape the INA’s foreign‑policy clauses. It will be remembered, if at all, as another Hawaii: a moment when a district court tried to constitutionalize foreign‑policy determinations, and the appellate courts restored the boundaries Congress and the SCOTUS have already drawn.