The article rebuts Judge Amul Thapar’s claim that the First Amendment might not apply to non‑citizens present in the United States. It cites Bridges v. Wilson (1945), where the Supreme Court held that freedom of speech and press extend to resident aliens, and explains why the Alien and Sedition Acts of 1798 are a poor basis for excluding non‑citizens. The piece also notes James Madison’s critique of the Sedition Act and argues that restricting non‑citizen speech harms citizens’ right to hear public discourse.
Yes — The First Amendment Protects Non‑Citizens Present in the United States
Yes, the First Amendment Applies to Non-Citizens Present in the United States
The First Amendment commands that "Congress shall make no law...abridging the freedom of speech." Yet a recent opinion by Judge Amul Thapar raised the provocative question whether those protections definitively extend to non‑citizens who are physically present in the United States.
Does the First Amendment Apply to Non‑Citizens?
In United States v. Escobar‑Temal, Judge Thapar wrote for himself that "neither history nor precedent indicates that the First Amendment definitively applies to aliens." That view prompts an important legal and civic discussion: when someone who is not a U.S. citizen speaks inside the country, do constitutional free‑speech protections apply?
The Supreme Court Answered Long Ago
The Supreme Court has addressed this question. In Bridges v. Wilson (1945), the Court declared that "freedom of speech and of press is accorded aliens residing in this country." That case involved Harry Bridges, an Australian labor organizer who faced deportation for alleged ties to the Communist Party. The Court concluded that Bridges’ publications and speeches showed a militant advocacy of trade‑unionism but did not "teach or advocate or advise the subversive conduct condemned by the statute," and thus his otherwise lawful speech was entitled to First Amendment protection.
History Does Not Compel Exclusion
Judge Thapar also pointed to the Alien and Sedition Acts of 1798 as historical evidence that the Founders did not view the First Amendment as extending to non‑citizens. But the Sedition Act is widely regarded as an aberration: it criminalized the publication of statements the government considered "false, scandalous, and malicious," and it was used by the Adams administration to punish political opponents, including citizens. James Madison famously catalogued the Act’s constitutional defects in his Report of 1800, observing that the Sedition Act’s power over the press was "positively forbidden by one of the amendments to the Constitution," referring to the First Amendment.
If the mere existence of the Sedition Act were taken as evidence that the Founders endorsed expansive government censorship, that would imply they accepted criminal penalties for political criticism by citizens—a conclusion inconsistent with Madison’s forceful denunciation of the statute.
Practical Consequences: The Right To Hear
There is also a practical and principled reason to extend First Amendment protection to non‑citizens: speech restrictions that target non‑citizens inevitably harm citizens as well. As Frederick Douglass observed, "to suppress free speech is a double wrong. It violates the rights of the hearer as well as those of the speaker." If a lawful permanent resident speaks in a public park criticizing federal policy, Americans who wish to listen have an interest that the government not silence that expression.
Conclusion
Contrary to Judge Thapar’s suggestion, constitutional precedent and principle support the view that the First Amendment protects lawful speech by non‑citizens present in the United States. Bridges v. Wilson provides direct Supreme Court authority, historical arguments for exclusion are weak and contested, and denying protections to non‑citizens would also diminish citizens’ rights to receive information and participate in public discourse.
Key Authorities: United States v. Escobar‑Temal (Thapar opinion); Bridges v. Wilson, 327 U.S. 612 (1945); James Madison, Report of 1800; Frederick Douglass, on the "right to speak and hear."
