Michael Kagan

Do Immigrants Have Freedom of Speech?

The Department of Justice (DOJ) recently argued that immigrants who have not been legally admitted to the United States have no right to claim protections under the First Amendment.  The DOJ built its argument on conflicted case law governing immigrants’ constitutional rights. This Essay argues that, contrary to the DOJ position, all people in the United States are protected by the First Amendment. Moreover, it argues that for reasons that have not been widely appreciated, Citizens United v. FEC offers significant doctrinal support for immigrant speech rights because it articulates a strong rule against speech discrimination based on identity rather than content.