Do Foreigners Deserve Free-Speech Rights?
The courts weigh whether legal aliens can make small campaign expenditures
Despite the ongoing debate over whether the government should be permitted to ban political speech by corporations, most people would agree that the First Amendment prohibits the government from banning political speech by living, breathing people.
Does it make a difference, though, if those speakers were born outside the United States? We will soon find out.
The facts of the case—Bluman v. FEC—are simple. Benjamin Bluman is a lawyer and a Canadian citizen. Dr. Asenath Steiman is a physician and a dual citizen of Canada and Israel. Both lawfully live and work in New York City. Both want to make modest political contributions and expenditures—Mr. Bluman in support of Democrats, Dr. Steiman in support of Republicans—but they are prohibited from doing so by a federal law that makes it a crime for anyone except citizens and permanent resident aliens to spend money in candidate elections. The law is so broad that it prohibits Mr. Bluman even from distributing homemade flyers in Central Park promoting the re-election of President Obama.
This sweeping ban on political speech runs headlong into well-established First Amendment doctrine. Courts have long held that noncitizens who lawfully reside in the U.S. enjoy the full protection of the First Amendment. The Supreme Court has also held that citizens have a First Amendment right to make political contributions and expenditures. And less than two years ago, in Citizens United v. FEC, the court held that the First Amendment protects speech regardless of the identity of the speaker, whether it's a corporation, a union or an individual. Therefore, the plaintiffs argue, noncitizens who lawfully live here should be permitted to make political contributions and expenditures.
It's a straightforward argument, well-grounded in Supreme Court precedent. Nevertheless, in August, a three-judge U.S. district-court panel in Washington, D.C., unanimously ruled against Mr. Bluman and Dr. Steiman, concluding that the government could bar noncitizens from attempting "to influence how voters will cast their ballots in the elections."
On Dec. 12, the Supreme Court passed up its first opportunity to announce whether it would take the case. Some observers take this as a hint that the court is going to let the D.C. panel's ruling stand. That would be a mistake, and a sharp reversal from the hard line the court has taken recently on speech-squelching campaign-finance laws.
The panel's ruling stemmed from a conviction that "foreigners" are different and that foreign speech poses a unique threat to the American political system. As to the first point, foreigners surely are different—they can be prohibited from voting, holding elective office, or serving in certain roles of government authority. But none of this has any bearing on whether their speech is entitled to First Amendment protection. After all, corporations are not allowed to vote but, as the Supreme Court recognized in Citizens United, they are still permitted to speak out about candidates.
As to the second point—that political speech by noncitizens is uniquely dangerous—this view ignores that such speech is ubiquitous in America, and we are none the worse for it. Foreign publications routinely endorse American presidential candidates; the U.K. paper the Guardian actually urged British citizens to send money to groups whose political efforts would indirectly benefit 2004 Democratic presidential candidate John Kerry.
Foreigners, and even foreign governments, have long been permitted to spend unlimited amounts of money directly lobbying members of Congress. There is no reason to believe that additional speech by non-permanent resident aliens like Mr. Bluman and Dr. Steiman poses any greater threat.
More fundamentally, the panel's ruling should be reversed because it ignores the rights of actual American voters. As Justice Anthony Kennedy eloquently expressed it in his majority opinion in Citizens United: "When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves."
The Justices who signed on to Justice Kennedy's opinion should apply that same reasoning to Bluman. Those who instead agree with retired Justice John Paul Stevens' dissent—which decried the application of the First Amendment to entities that have "no consciences, no beliefs, no feelings, no thoughts, no desires"—should recognize that noncitizens living in this country do have those qualities and are entitled to the First Amendment's protection.
Over the past five years, the Supreme Court has been sharply divided on many campaign-finance questions. Whether Congress has the power to ban peaceful political speech by people who lawfully live and work in the United States should not be one of them. The Supreme Court should grant review and reverse this flawed and dangerous ruling.