Appeals Court Judge Claims (Against All Historical Evidence) That The First Amendment Doesn’t Apply To Non-Citizens

Free Speech

from the this-one-simple-trick-for-ignoring-the-1st-amendment dept

We’ve written before about how attacks on free speech often start with unpopular speakers who lack political power. That’s why a new dissenting opinion from Trump-appointed Judge Paul Matey should set off alarm bells for anyone who cares about the First Amendment.

In a case involving an imam’s immigration status, Judge Matey penned a remarkable 39-page dissent arguing that non-citizens have no First Amendment rights at all. Not limited rights. Not restricted rights. No rights whatsoever.

Under the First Amendment, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” U.S. Const. amend. I. This guarantee cannot be invoked by aliens excluded from our borders because an alien “does not become one of the people to whom” the First Amendment applies “by an attempt to enter, forbidden by law.” U.S. ex rel. Turner v. Williams, 194 U.S. 279, 292 (1904). That is because “[t]o appeal to the Constitution is to concede that this is a land governed by that supreme law, and as under it the power to exclude has been determined to exist, those who are excluded cannot assert the rights in general obtaining in a land to which they do not belong as citizens or otherwise.” Id. So there is no debate that excluded aliens cannot invoke the First Amendment.

This is a federal appeals court judge, appointed by Donald Trump in 2019, laying out a roadmap for gutting free speech protections for millions of people living legally in the United States, contrary to basically any prior reading of the First Amendment. And, even worse, claiming there is “no debate” on this point. There has been “no debate” on this topic because nearly every other court has disagreed with Judge Matey.

The case, Qatanani v. Attorney General, involves Mohammad Qatanani, a Palestinian imam who has lived in New Jersey since 1996. After decades of proceedings, an immigration judge granted him permanent resident status. The Board of Immigration Appeals tried to reverse that decision eleven months later—well past the normal 30-day appeal window—and the majority correctly found they lacked authority to do so, given the delay.

But Judge Matey’s dissent goes far beyond the procedural questions. He explicitly argues that “Qatanani is not part of ‘the people’ the First Amendment protects” and that non-citizens cannot “claim its protection.”

His reasoning? A convoluted “originalist” argument claiming that because the First Amendment refers to “the people,” it only applies to those who are “part of a national community” with sufficient “allegiance” to the sovereign. Non-citizens, he argues, owe only “temporary allegiance” and therefore get only “temporary protection”—protection that can be withdrawn whenever the government decides they’ve become “dangerous.”

Judge Matey’s interpretation flies in the face of a century of Supreme Court precedent.

In Bridges v. Wixon (1945), the Supreme Court explicitly held that “freedom of speech and of the press is accorded aliens residing in this country.” The Court has consistently recognized that while the government has broader powers over immigration decisions, the First Amendment still constrains how it treats non-citizens who are physically present in the United States.

Judge Matey tries to get around the clear statements in Bridges, claiming that it’s just dicta and limited in its scope to only “lawful resident aliens.”

Wixon does not resolve whether the First Amendment applies to all resident aliens, much less unauthorized aliens. At most, its dicta suggests that lawful resident aliens, what we today could call LPRs, can potentially invoke the First Amendment in some criminal prosecutions.

Note all the caveats: Matey suggests that Bridges “does not resolve” the question, that its holding “suggests” lawful resident aliens “can potentially” invoke First Amendment protections “in some criminal prosecutions.” This isn’t careful legal analysis—it’s systematic minimization of clear precedent with insinuation to get to a desired result.

Even the more restrictive cases Matey cites don’t support his sweeping conclusion. Kleindienst v. Mandel involved excluding someone from entering the country—not stripping speech rights from someone already here. Harisiades v. Shaughnessy, which was decided at the height of McCarthyite “Red Scare” nonsense, involved deportation proceedings, but still recognized that resident aliens have constitutional protections, even if those protections are weighed differently in immigration contexts. As for Turner v. Williams, which Judge Matey relies on heavily, that ruling (part of an early 20th century panic about “anarchists”) makes clear that it is not “depreciating the vital importance of freedom of speech… or as suggesting limitations on the spirit of liberty” rather, it simply argues that Turner’s advocacy for anarchism was an attempt to overthrow the government, which leaves him open to deportation not because of his speech, but his incitement.

In many ways, this is an extension of the kinds of nonsense ahistorical “originalist” arguments now being made against birthright citizenship, with hallucinated claims that birthright citizenship only applies to people who were born here “lawfully.”

If Judge Matey’s view became law, the government could:

• Arrest non-citizens for political speech that would be fully protected if spoken by citizens
• Punish lawful permanent residents for attending protests or criticizing government policies
• Strip First Amendment protections from the millions of non-citizens who live, work, and contribute to American communities

As the Cato Institute explains

Every restriction on the free speech rights of noncitizens is also a restriction on the free speech rights of Americans. For one thing, free speech is a protection for listeners as much as it is for speakers, and in that way, it undermines everyone’s right to hear when the government shuts down anyone’s right to speak freely.

The threat to US citizens becomes even more acute when they know a noncitizen. Should you bring a noncitizen family member or friend to a protest? Would you feel as confident protesting the abuses of the US government or an allied foreign government if you were married to a legal permanent resident? Should you share articles critical of the administration’s foreign policy with them? What happens if they reshare, comment on, or like your post?

I know noncitizen researchers who study trade, immigration, national security, and other matters of intense public interest and debate. Should they and their employers be concerned about publishing research that Secretary of State Marco Rubio could deem “adverse to the foreign policy interest of the United States”? Unfortunately, the answer is yes. 

The chilling effects of such a stance would be vast and would cover plenty of expression by citizens beyond just non-citizens.

And, of course, Judge Matey’s dissent isn’t just theoretical musing. The Trump administration is already moving to deport students and researchers for their political speech.

If courts adopt Judge Matey’s reasoning, these deportations could proceed without any First Amendment analysis at all. The government could simply argue that because these individuals aren’t citizens, their speech—no matter how peaceful or protected it would be if spoken by a citizen—is irrelevant to their immigration cases.

Yes, of course, that’s what Matey and the Trump administration want, but it would be an attack on the free speech First Amendment principles this country was built on.

Indeed, what makes Judge Matey’s dissent particularly alarming is how it reveals the broader strategy of the current administration’s approach to free speech. Rather than directly attacking the First Amendment rights of citizens (which would face immediate constitutional challenges), this approach systematically strips those rights from non-citizens first.

This is the classic authoritarian playbook: start with the most vulnerable populations, normalize the restrictions, then expand them. Today it’s non-citizens who “don’t deserve” First Amendment protections. Tomorrow it could be naturalized citizens whose loyalty is questioned. Then citizens who associate with the “wrong” people or express the “wrong” views.

This connects to an even more disturbing pattern: Donald Trump is already talking about stripping citizenship from Americans whose speech he dislikes. Matey’s reasoning provides the perfect complement to this threat. Strip someone of citizenship, and under Matey’s logic, they lose all First Amendment protections entirely. It’s a two-step process to eliminate constitutional rights for anyone: first denaturalize, then punish for their speech. The (desired) end result is tremendous chilling effects on speech.

Fortunately, the majority in Qatanani rejected this approach entirely, focusing instead on the proper procedural limits on immigration agencies and ignoring the First Amendment issue altogether. But the fact that a federal judge felt comfortable writing such a sweeping attack on established First Amendment law should concern everyone.

Judge Matey’s dissent represents exactly the kind of thinking that turns immigration enforcement into a tool for political persecution. When judges start arguing that the Constitution simply doesn’t apply to entire classes of people based on their citizenship status, we’re not talking about immigration law anymore.

We’re talking about out-and-out authoritarianism and speech suppression.

The First Amendment doesn’t protect Americans. It protects people in America. Judge Matey’s effort to rewrite that fundamental principle should be rejected as thoroughly as his colleagues rejected his broader legal reasoning.

Because once we accept that some people don’t deserve constitutional protections, it becomes much easier to argue that others don’t deserve them either.

Filed Under: 1st amendment, 3rd circuit, citizens, donald trump, free speech, mohammad qatanani, non-citizens, paul matey