When Direct Censorship is Off-limits, Immigration Law Becomes the Workaround
Guest blogger: Ghazaleh Fotoohi Ghazvini, law student, University of San Francisco
The United States has spent decades successfully marketing itself as a country where competing ideas can be argued in public. It allowed for criticism of politicians and funded many broadcast programs to spread the idea that the United States values freedom of speech. Freedom House still rates the U.S. as “Free,” reinforcing the image of a system that tolerates contentious speech. A.
In the U.S., the media sphere is polarized rather than formally suppressed. Partisans gravitate to different outlets, where criticism of individual elected officials is routine. Meanwhile, tension arises when dissent challenges policies backed by both major parties, especially in areas like foreign policy or national security. Because the First Amendment protects not only the right to speak but also the public’s right to receive information and ideas, directly restricting citizens’ speech is difficult. Instead, officials often turn to immigration policy, where constitutional protections are weaker, and courts tend to defer to the government’s decisions.
That strategy has a legal and historical backbone. INA § 237 states that “[a]n alien whose presence or activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States is deportable.” INA § 237 (4)(C)(i). Moreover, INA § 212 states that “[a]n alien whose entry or proposed activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States is inadmissible.” INA § 212 (3)(C). In Kleindienst v. Mandel (1972), the Supreme Court held that when the government denies a visa on a “facially legitimate and bona fide” ground, courts won’t “look behind” the decision, even if U.S. academics invited the speaker, and even if the public’s right to hear is implicated. In practice, that allows the government to restrict some debates by excluding foreign voices.
Officials have used this leverage repeatedly. For years, prominent writers, artists, and scholars, including Charlie Chaplin, John Lennon, and Gabriel Garcia Marquez, were denied visas, drawing lawsuits from U.S. groups who argued the exclusions limited domestic debate. More recently, there have been numerous reports of deportation and exclusion of noncitizen students and researchers solely based on political speech. B. Moreover, visa applicants must disclose five years of social-media identifiers, a vetting rule adopted in May 2019 and upheld in court, another example of speech screening applied to noncitizens.
This pattern of steering around the First Amendment by acting where rights are thinner, has deep roots. In 1798, amid fear of war with France, Congress passed the Alien and Sedition Acts: these Acts included broad language aimed at excluding noncitizens who were deemed to be “dangerous to the peace and safety of the United States,” and noncitizens “from an enemy nation during war.” These laws further banned the publication of “any false, scandalous, and malicious writing.” The Alien and Sedition Acts of 1798 demonstrate a tendency toward use of immigration laws in regulating political speech and activity, and controlling public views on foreign policy. C, D.
Through the next century, immigration law was used to police politics. E. Congress introduced explicit ideological exclusions, and the Palmer Raids then “saw thousands of people detained without warrants merely upon general suspicion.” The Justice Department cited “alleged membership in the Communist Party or the Communist Labor Party,” in justifying their deportation. These raids “lacked arrest warrants, directed officers to seize documents at will, and permitted unrestrained force.” F The Plenary Power doctrine, under which judges defer heavily to the political branches in immigration, makes it easier to use immigration law where broader speech crackdowns would fail. G.
Wartime again made immigrants the first stop. After Pearl Harbor, presidential proclamations invoked the Alien Enemies Act and launched the Enemy Alien Control Program, under which the Justice Department registered, restricted, and detained thousands of Japanese, German, and Italian noncitizens (and some family members), often for years and solely based on their ancestry. The statutory authority 50 U.S.C. § 21 remains as valid law under which was been recently invoked to deport Venezuelans who are alleged gang members. H
After 9/11, the government created the NSEER program. “More than 80,000 men underwent registration, and thousands were subject to interrogations and detention. Many of those who came forward and attempted to comply with NSEERS ended up deported or unable to secure an immigration benefit, and those who failed to comply—even if they were unaware of the requirements—also faced severe consequences.” I. The policy produced no terrorism convictions, but it did produce fear, deportations, and restricted speech within targeted communities. Id.
While in theory noncitizens inside the United States do have some constitutional protections, including the first, fourth, and fourteenth amendment, these protections are lesser compared to citizens. This has allowed noncitizens to become the subjects and means of political control during turmoil. The Supreme Court confirmed the sharply limited review available to non-citizen. See e.g. Yassini v. Crosland, Kleindienst v. Mandel, Trump v. Hawaii.
There is a unifying theme in all the above examples. When government wants to shape what gets said about contested policies, and direct censorship of citizens would likely fail, immigrants and other noncitizens become the first device. That asymmetry is why politicians so often reach for immigration law when they want to manage dissent or look productive and tough to a public that is already prone to nativism. The legal tools are available (consular non-reviewability, ideological exclusions old and new, border-screening regimes), and the courts avoid review. Some may view this as the government simply attempting to ensure the security of the nation from foreign threats. However, this can be easily debunked by looking at the people that were placed in removal or excluded on these accounts. Almost always the individuals had nothing to do with any activity that would have threatened the security of the U.S. In cases that they were flagged as “adversarial to the foreign policy,” the noncitizens’ speeches were not specific to them; in fact, other U.S. citizens had voiced the same opinions. Instead of addressing those “unfavorable” opinions among Americans, the executive branch seeks to make an example out of non-citizens, only because they are aware that noncitizens’ rights are the only line they are allowed to cross.
This pattern also appears in labor-based immigration policy, where periods of economic turmoil and job insecurity often trigger hostility toward noncitizens working in the United States, even though they are not the cause of these problems. In fact, data consistently show that labor-based immigration contributes to economic growth and expands employment opportunities for native-born workers. J.
Even if the Court has limited judicial review because of the political question doctrine, it “would still be able to consider constitutional and other purely legal challenges to [the executive branch’s] authority.” H. For example, the Alien Enemies Act raises serious concerns under due process and equal protection. Id.
If the goal is to protect debate while safeguarding security, it could do so without infringing on noncitizens’ rights. For example, Congress could tighten the rules by barring immigration decisions based solely on protected expression, require specific, evidence-based grounds tied to concrete threats, and constrain speech surveillance in visa vetting. Noncitizens shouldn’t be the ones who bear the brunt of political and economic turmoil that they did not cause. Seeking to render them inadmissible or removable on these grounds surely would not help solve any issues either.
A. https://freedomhouse.org/country/united-states/freedom-world/2025
C. https://www.gilderlehrman.org/history-resources/essays/immigrants-and-alien-and-sedition-acts-1798
E. https://firstamendment.mtsu.edu/article/aliens/
F. https://constitutioncenter.org/blog/on-this-day-massive-raids-during-the-red-scare
https://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article=1219&context=glr
https://immigrationinitiative.harvard.edu/americas-long-fractured-history-of-immigration/
