Immigrants and Free Speech


This series tracks my Immigration Law course at Hofstra Law School.

Many of my students have had the experience of meeting foreign students when they were in college. The exchange students are often reticent to talk about politics or to criticize their home countries or the United States. It is not uncommon for the native born to exasperatedly tell the politically fearful This is America. You can say what you want here!

I like to tell my class that that was their first act of malpractice.

The courts have held that immigrants are protected in their speech by the First Amendment. They have also held that they can be deported for exercising that right.

Now on its face the First Amendment seems pretty darned clear. Congress shall make no law…abridging the freedom of speech, or of the press; or the right of the people to peaceably assemble… Make no law. Make no law. Now, Justice Scalia, do we see any room for interpretation in there? If the drafters of the Bill of Rights had wanted ambiguity and wiggle room, they knew how to provide it. They did not.

With the exception of the short-lived and historically reviled Alien and Sedition Acts, which provided for the arrest and deportation of Irish-born immigrant newspaper editors who called John Adams fat, for our first 11 decades as a country, the U.S. imposed no ideological test on immigrants.

Many of our ancestors came to this country as monarchists, Fenians, pan-Slavs, democrats (before that was hip), abolitionists (when slavery was a cherished property right), White supremacists, and folks who did not believe in politics at all. The coming together of all these conflicting political views did not ignite widespread terrorism or civil war. In fact, the only civil war ever fought on U.S. soil was between sides led by native born Whites, each espousing representative government, between 1861 and 1865. The only periods of systemic and widespread terrorism were initiated by native born Whites against native born African Americans in the period following the Civil War, during the 1920s, and again in response to the Civil Rights Movement. So the stew of immigrant political attitudes, possibly because they have been so varied, have never put the nation in the sort of existential danger that was posed by Jeff Davis and his adherents.

Even so, beginning in the first decade of the 20th Century, Congress repeatedly passed laws providing for the exclusion of people with dissident political views. It was as though being an American meant belonging to a particular political party.

The most notorious case of political infringement was Harisiades v. Shaughnessy . Decided in 1952, it concerned the deportation of three ex-communists. Now, nobody has much sympathy for a communist. Joe Stalin ran one of the most brutal regimes in human history. But it should be remembered that at the time these three were members, all quit by 1940, it was legal to join the party. The Communist Party ran candidates in elections, and it often cross endorsed winning politicians, particularly during the Great Depression. It had highly visible offices, and held open demonstrations. And for many years it soft-peddled its support for the Soviets and emphasized its championing of rights for African Americans and opposition to Fascism in Spain and Italy, and the Nazis in Germany.

In 1940, Congress passed a law requiring the deportation, not just of communists, but of anyone who had ever been a communist. So, to lay eyes they seemed to be violating the First Amendment, since this law punished people for exercising free speech and the right to freely assemble with others, and it also seemed to violate the prohibition on ex post facto laws. In other words, people were going to be punished for something they had done in the past, which was legal when they did it!

Now let us look at the immigrants facing deportation. They were three very different people.

First was Harisiades himself. He was a permanent resident who had come from Greece. He was involved in communism from his teens and he stayed involved for nearly two decades. He was an organizer, a party official, and a propagandist. He also seemed to have contacts with a communist underground. He knew where the bodies were buried. He only quit the party to avoid deportation.

Next up was Mrs. Coleman. She was a member of the party for about a year. According to the court She held no office and her activities were not significant.

Finally there was Mr. Mascitti, and Italian, who had been in the party for several years during the 1920s, more than a decade before the communist deportation law was passed. He left the party in 1929 because he came to disagree with its politics.

So we have Harisiades, the hard core communist, Mrs. Coleman, who apparently joined for the parties, and Mascitti, who was anti-communist. Yet all of them were ordered deported. For something they had done before the law prohibiting it had been passed.

In the next installment, I will look at modern uses of this restriction on immigrant free speech, as well as at an alternative analysis.

Read other parts of this series:

Immigration 101 is a comprehensive series on American immigration law for the layperson. This series tracks my course on immigration law at Hofstra Law School and answers many of your questions about immigration policy.

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Patrick Young blogs daily for Long Island Wins. He is the Downstate Advocacy Director of the New York Immigration Coalition and Special Professor of Immigration Law at Hofstra School of Law. He served as the Director of Legal Services and Program at Central American Refugee Center (CARECEN) for three decades before retiring in 2019. Pat is also a student of immigration history and the author of The Immigrants' Civil War.