A recent executive order from the Trump administration ordered that students (and, presumably, others) on visas who show support for Hamas be deported. There are a lot of people who believe that this order violates the foreign students’ rights under the First Amendment. As described below, it doesn’t.
The First Amendment guarantees several freedoms to everyone in the US: citizens, permanent residents, and visitors. These freedoms include freedom of speech and freedom of assembly, as well as others. This means that the government cannot censor the speech of demonstrators on campus, and can’t fine or jail them. However, such demonstrations must follow rules about time, manner, and place: they can’t violate other laws and the property owner (even the government) can place reasonable limits on when and where the demonstration takes place.
Thus, foreign students on visas are guaranteed, under the First Amendment that all others are guaranteed. Because this is the case, how is it possible that Trump’s order is still constitutional? Doesn’t it place limits on free speech?
The answer is no.
Foreigners on visas are guaranteed the same rights under the First Amendment that citizens have. But foreigners are not guaranteed the privilege of visiting the United States in the first place. The US (supposedly) vets foreigners who apply for visas; one of the reasons for rejection is support for terrorist organizations. Additionally, the US can revoke a visa for many reasons, including actions that are legal but undesirable. Obviously, the US can’t deport or jail a person for relying on public assistance, but it can deny a visa or revoke a visa for doing so. Foreign students or other foreigners on visas who protest in favor of Hamas, Hezbollah, and other US-designated terror organizations can have their visas revoked.
The Foundation for Individual Rights and Expression (FIRE) notes that, while resident aliens have the right of free speech, they can be deported for otherwise-protected speech.
Because this executive order is directed at foreign nationals, the legal First Amendment issues (as distinct from the cultural free speech questions) are complicated. The Supreme Court noted in Bridges v. Wixon that the freedom of speech is accorded to resident aliens, but other precedent upholds immigration consequences based on viewpoint, and immigration officials have targeted foreign nationals for deportation for otherwise-protected speech.
If their visas are revoked, foreign visitors can be deported. They can’t be jailed or fined for lawful demonstrations, no matter how odious, but their privilege of visiting the United States can be terminated for supporting anti-American terrorist groups.