A set of extended passages drawn from the more-than-35,000-word ruling authored by Judge Noël Wise (N.D. Cal.) in Stanford Daily Pub. Corp. v. Rubio:
Plaintiffs, Stanford Daily Publishing Corporation and Jane Doe—a noncitizen student holding an F-1 visa issued by the United States—bring suit against Marco Rubio, in his official capacity as Secretary of State, and Markwayne Mullin, in his official capacity as Secretary of Homeland Security. The plaintiffs contend that, beginning in March 2025, the government altered its immigration policy and enforcement posture, notably by arresting, detaining, and deporting students with F-1 visas when those students exercise their speech rights to voice opinions the government disfavors—such as expressing solidarity with or sympathy for Palestinian people, or criticizing Israel’s actions regarding Palestine or the Gaza conflict.
Plaintiffs maintain that the provisions of the Immigration and Nationality Act upon which the government relies to cancel student visas and initiate removal proceedings are unconstitutional. Those provisions permit deportation if “the Secretary of State personally determines that the alien’s presence would compromise a compelling United States foreign policy interest” and, further, authorize that “after the issuance of a visa or other documentation to any alien, the consular officer or the Secretary of State may at any time, in his discretion, revoke such visa or other documentation.”
The court held that the First Amendment generally affords resident aliens protection that is effectively identical to that provided to citizens, at least in the context of speech-related rights:
The First Amendment does not recognize any “distinction between citizens and resident aliens.” The freedom of speech, together with its protection against government retaliation arising from hostility toward speech, has traditionally been extended to noncitizens living in the United States. Am.-Arab Anti-Discrimination Comm. v. Reno (“AADC“) (9th Cir. 1995); Bridges v. Wixon (1945) (“Freedom of speech and of the press is extended to noncitizens residing in this country.”).
In AADC, the Ninth Circuit held that the First Amendment bars the deportation of aliens for speech that falls within protection. The court explained that “the Framers explicitly recognized that aliens within this country participate in a reciprocal relationship of societal obligations and correlative protection. ‘As [aliens] owe, on one hand, a temporary obedience, they are entitled, in return, to their protection and advantage.’” Consequently, “the values underlying the First Amendment require the full applicability of First Amendment rights to the deportation setting.” After all, if aliens lack First Amendment rights at deportation, their rights in other settings would be hollow, since the ever-present threat of deportation would chill expressive and associational activities permanently.
For reasons I will outline below, I view this decision—much like AAUP v. Rubio (D. Mass. 2025)—as a plausible reading of the First Amendment precedents, though not the sole plausible reading. We are likely to gain more clarity once the First Circuit rules in that case, and later when the Ninth Circuit reviews the appeal here. In the meantime, additional passages from the court’s opinion follow:
The government contends that noncitizens present in the United States enjoy “reduced” First Amendment protection that varies along an “ascending scale.” The government fails to point to any case applying its proposed “ascending scale” doctrine to the First Amendment rights of lawfully present noncitizens. The Ninth Circuit, addressing comparable arguments, has treated it as an “uncontested proposition” that student visa holders in this country may assert claims under the First Amendment. Ibrahim v. Dep’t of Homeland Sec. (9th Cir. 2012) (and affirming that a Stanford student whose student visa was revoked while traveling abroad could raise First Amendment claims). Indeed, the government does not articulate what First Amendment protections it believes noncitizens possess; it merely asserts that whatever “reduced” rights “nonimmigrant visa-holders” might have are insufficient for challenging the Revocation and Deportation Provisions.
{The government also relies on authority suggesting that noncitizens are subject to a single, discrete speech limitation: restrictions on financial contributions to federal election campaigns. The government primarily cites then-Judge Kavanaugh’s reasoning in Bluman v. FEC (D.D.C. 2011). Yet Bluman did not hold that noncitizens enjoy diminished First Amendment rights. Instead, it sustained a contribution restriction under a line of authority permitting the government to bar noncitizens from voting, serving on juries, working as police or probation officers, or teaching in public schools—activities deemed integral to “democratic self-government.” The court emphasized that direct campaign expenditures form part of the process of democratic self-government. Crucially, Bluman explicitly cited Wixon as requiring that “resident aliens [are] protected by the First Amendment in the deportation context.” The court further cautioned that “speaking on issues of general public interest is a quite different context from participation in a political campaign for election.”}
Some of the government’s proffered authority concerns the exclusion or admissibility of noncitizens (i.e., refusals of entry) rather than the removal of those already lawfully present. See, e.g., Dep’t of State v. Muñoz (2024); Kleindienst v. Mandel (1972). But the Supreme Court has explained that “[t]he distinction between an alien who has effected an entry into the United States and one who has never entered runs throughout immigration law.” Zadvydas v. Davis (2001).
“The Supreme Court has consistently distinguished between aliens already in the United States and those seeking entry from abroad, and has extended to aliens residing in the United States those protections of the Bill of Rights that the Constitution does not confine purely to citizens.” AADC; see also (id.) (“[W]e decline to extend Kleindienst to apply to the deportation context.”). And the very authority the government relies upon confirms that “resident aliens [are] protected by the First Amendment in the context of deportation.” Bluman v. FEC (D.D.C. 2011) (Kavanaugh, J.) (citing Wixon). The plaintiffs’ claims here do not involve questions of admissibility or exclusion, so the government’s citations to authorities addressing admissibility or exclusion rather than visa revocation or deportation are not applicable.
Regarding the Fifth Amendment’s prohibition on vague laws, its protections extend equally to citizens and noncitizens, including in the immigration context. In Sessions, the Supreme Court held that, because deportation represents a grave and drastic measure—often amounting to a lifelong banishment or exile—the most exacting vagueness standard applicable to criminal statutes applies to immigration laws as well. See Sessions v. Dimaya (2018) (plurality opinion) (applying heightened vagueness scrutiny to invalidate an INA provision).
The court’s ruling aligns well with the Ninth Circuit’s AADC decision, as well as with a parallel ruling from the Fourth Circuit in Parcham v. INS (4th Cir. 1985). It does not, however, address a contrary view expressed in Price v. INS (9th Cir. 1991), which—though set in the citizenship-denial context rather than deportation—suggests a more limited protection for resident aliens. The excerpt below reproduces that passage:
[T]he protection afforded resident aliens may be limited… . [T]he Court has historically afforded Congress considerable deference in the field of immigration and naturalization… “[I]n the exercise of its broad power over immigration and naturalization, ‘Congress regularly makes rules that would be unacceptable if applied to citizens.’” Although Price [as a lawful permanent resident] is justified in expecting the greatest degree of constitutional protection afforded a non-citizen, the protection accorded him under the First Amendment certainly is not greater than that of the citizen plaintiffs in Kleindienst [whose First Amendment challenges to a foreigner’s visa denial were rejected].
It also omits another line from then-Judge Kavanaugh’s discussion in Bluman:
“The Court has further indicated that aliens’ First Amendment rights may be less robust than those of citizens in particular areas. See Harisiades v. Shaughnessy (1952) (the First Amendment does not protect aliens from deportation due to membership in the Communist Party).
Indeed, while the First Amendment discussion in Harisiades rests on the conclusion that active Communist Party membership was not substantially protected by the First Amendment—applicable to both citizens and noncitizens at the time (see Dennis v. United States (1951))—its Due Process Clause discussion speaks more broadly about Congress’s power to authorize the deportation of aliens:
Under our system, the alien stands, in several respects, on a footing equal to citizens, but in others never enjoys formal parity with the citizen. Most notably, to maintain this ambiguous status within the country is not his right but a matter of permission and forbearance. The Government’s power to terminate its hospitality has been asserted and sustained by this Court since the question first arose….
It is important to observe that any policy toward aliens is intimately tied to contemporaneous foreign relations, the war power, and the maintenance of a republican form of government. Such matters are entrusted so exclusively to the political branches that judicial inquiry or interference is largely inappropriate.
The district court’s Stanford Daily decision did not engage with Harisiades, nor did it address the subsequent Supreme Court decision in Reno v. AADC (1999), which held that the ordinary First Amendment protections against selective enforcement of laws based on speech do not generally apply to deportation.
Representing the plaintiffs are Colin McDonell, Conor Fitzpatrick, and Daniel Zahn of FIRE, together with John Sinodis, Marc Van Der Hout, and Oona Cahill of Van Der Hout, LLP.
