"Guest" Speakers: Immigration Enforcement and First Amendment Exceptionalism

Whether and, if so, to what extent noncitizens in the U.S. enjoy First Amendment rights are questions the Supreme Court has not definitively answered. The Trump Administration's immigration enforcement policies and actions have brought these issues to the fore. A recent lawsuit and bench trial offer a unique opportunity to address them in a concrete setting. In AAUP v. Rubio, a federal district court concluded that the administration violated the First Amendment rights of educational associations and their noncitizen members by targeting international students for arrest, detention, and deportation based on their political expression regarding Palestine and Israel. This Essay uses AAUP as a vehicle for analyzing the claim that noncitizens are "guests" who do not enjoy the same rights as U.S. citizens to engage in political expression. The record in AAUP offers a birds-eye view of how the executive branch used existing immigration laws, federal agencies, and publicized arrests to chill the speech of noncitizens. These events highlight several reasons to reject deference to officials and bespoke standards concerning speech regulations in the immigration context. First Amendment exceptionalism undermines fundamental national commitments to public discourse, broadly chills expression, infringes academic freedom, and violates the rule of law. At the same time, AAUP also shows how difficult it is for courts to fashion effective remedies when the federal government targets noncitizen speakers. Indeed, the court's remedy does little to address the significant chilling effect of the administration's ideological deportation policy.