On May 23, 2025, the athletic fight song, “Ten Thousand Men of Harvard” seemed to properly capture the mood as Harvard sued the administration over its decision to terminate the university’s permission to enroll new and host current international students. The complaint alleges the government’s revocation of its international student enrollment permission was retaliatory and an attempt to control the school’s curriculum in violation of Harvard’s First Amendment rights. On May 29, 2025, a court issued a temporary restraining order preventing the administration from revoking Harvard’s international student enrollment permission until a preliminary injunction hearing. While the fight over the content of educational programs looms, the allegations underlying DHS’ actions against Harvard posit another legal issue of immense importance: Do foreign nationals have the same First Amendment rights as US citizens when it comes to political speech?
Based on the allegations outlined in Secretary Noem’s letter revoking Harvard’s SEVP privileges, it would appear the government does not recognize such rights. For example, one of the leading reasons DHS provided for its decision was Harvard’s failure to turn over disciplinary records or information pertaining to international students who participated in pro-Palestinian protests. This position rests on the assumption that it would have been proper of Harvard to punish international students for pure political speech. Coupled with the government’s March 2025 sweeping F-1 visa terminations of students who were identified or suspected of participation in various pro-Palestinian protests across the country, the government’s position on the matter appears all but cemented.
Yet, in its own study materials for aspiring US citizens, DHS itself confirms that one of the rights that all “people” (not only “citizens”) in the United States have, is indeed the Freedom of Speech. The agency goes on to even distinguish the First Amendment rights (and some others) from specific rights (to run for office, vote, or serve on juries, for example) that only US citizens have. The basic notion that some protection exists was also recognized by the concurring opinion of Justice Murphy in Bridges v. Wixon, 326 U.S. 135 (1945).
But could international students and green card holders risk deportation if they express a political opinion? Looking at some of the seminal cases on First Amendment rights decided by the Supreme Court, we cannot really be sure. There are only a handful of Supreme Court cases that directly involved a non-US party and address First Amendment protections for immigrants.
We know that foreign nationals outside the United States are not entitled to any such protections. Kleindienst v. Mandel, 408 U.S. 753 (1972) (visa denial of a journalist based on political views did not violate the First Amendment). Foreign nationals can also be denied naturalization for their political views. United States v. Schwimmer, 279 U.S. 644 (1929) (pacifism as a political conviction was insufficient to excuse the applicant from having to agree to bear arms on behalf of the United States).
Abrams v. United States, 250 U.S. 616 (1919) is best known for Justices Holmes and Brandeis’ dissent and “marketplace of ideas” theory. Yet, it is an early example of how war limits freedom of expression: despite Abrams’ speech being purely political, his conviction (and later deportation) was not a violation of the First Amendment.
What about speech that can be deemed antisemitic? Brandenburg v. Ohio, 395 U.S. 444 (1969) overturned Abrams, and held that a Ku Klux Klan leader who called for “revengence” (sic) against “black peoples” and “Jews” and advocated for the return of African Americans to Africa and Jewish Americans to Israel was protected under the First Amendment. The Court found the KKK member advocated for violence “in the abstract” and his speech was not likely to incite “imminent lawless action.”
Just two years later, in 1971, Justice Harlan (an appointment of conservative-leaning President Eisenhower) would write the majority opinion in Cohen v. California, holding that wearing a shirt reading “F*** the Draft” in public was a protected form of free speech and a permissible for of pure political speech in opposition to the Vietnam War. More importantly, Justice Harlan recognized that “one’s man vulgarity is another’s lyric.” 403 U.S. 15, 25 (1971).
In the context of students’ rights to free speech, the Supreme Court has been even more consistent in holding that pure political speech that is not disruptive to educational activities is protected. In Tinker v. Des Moines, 393 U.S. 503 (1969), the Supreme Court held that neither students nor their teachers shed their First Amendment rights by entering a school’s premises. Pure political speech, such as wearing black armbands in protest against the Vietnam War, was clearly a protected form of expression in the eyes of the Court. Tinker, however, was merely a child, and as such her speech could be clearly distinguishable from the actions of adults attending institutions of higher learning.
So, what does the current caselaw tell us about the rights of international students and green card holders? The Supreme Court has ardently protected speech, even repulsive and clearly antisemitic speech. It has interpreted the right of the government to control expression very narrowly. Foreign nationals have some First Amendment rights as generally recognized by cases like Bridges. But we have yet to see the Court confirm that foreign nationals in the United States would be afforded the same grace as people like Brandenburg and Cohen? Based on the government’s recent actions (terminating visas for people participating in pro-Palestinian protests and punishing institutions like Harvard for failing to punish such positions), it would appear the current administration would like to revive the Abrams standard when it comes to foreign nationals. If so, even simple pro-peace non-political positions like “Ceasefire Now” or “War is Wrong” could be deemed as seditious.
As a society, we are once again facing deeply dividing issues, but they are no more divisive than the issues we have faced before: from strong feelings about the Vietnam War and the draft, to outrageously hateful speech of neo-Nazi leaders like Brandenburg, America has always needed the marketplace of ideas to keep itself accountable and search for the truth. The Supreme Court has so far been vigilant in protecting our rights to search for the truth regardless of how offensive political speech could become. And we hope, as we imminently head for a new First Amendment cornerstone decision on the issue, that the Supreme Court will continue to recognize the plain language of the First Amendment protects speech from government involvement, and that it does so irrespective of whether it comes from someone with an accent or not.
The material contained in this article does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
Reprinted with permission from the June 9, 2025 edition of The Legal Intelligencer© 2024 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.
