By: Jacqueline Perez
Volume X – Issue II – Spring 2025
I. INTRODUCTION
On January 20, 2025, less than 24 hours into his presidential term, President Donald J. Trump made history by signing over 20 executive orders and actions, more than any past president in American history. [1] Forming the backbone of his widely-promised “Day 1,” these executive orders span across various hot-button issues. Nestled among these orders is Executive Order 14161, also titled “Protecting the United States From Foreign Terrorists and Other National Security and Public Safety Threats.” Despite the order’s alleged aim of protecting the U.S. and its citizens from terrorism and national security threats, Executive Order 14161 raises concerns regarding the Trump Administration’s willingness to respect the U.S. Constitution. Containing vague language, Executive Order 14161 mandates that the U.S. ensure that no “admitted aliens and aliens otherwise already present in the United States” hold “hostile attitudes toward its citizens, culture, government, institutions, or founding principles.” [2]
Encouraging government action against foreigners already present in the U.S. on the basis of their political and cultural views toward the U.S. challenges the First Amendment, whose scope includes the protection of free speech. [3] Government officials must adhere to the Constitution, the supreme law of the land, to the highest degree and ensure it equally applies to all groups, as previous court decisions intended. This article seeks to explore the First Amendment’s application to non-citizens through the lens of the Trump administration’s Executive Order 14161. First, the article will dissect the language of Executive Order 14161 and identify areas of constitutional concern. The next section examines previous Supreme Court cases to establish and reaffirm that this executive order violates the First Amendment. It then analyzes the potential chilling effects on non-citizens and the broader immigrant rights movement.
II. INTRODUCTION TO THE TRUMP ADMINISTRATION’S EXECUTIVE ORDER
Titled “Protecting the United States From Foreign Terrorists and Other National Security and Public Safety Threats,” Executive Order 14161actively encourages government action against foreigners residing in the U.S. who express unfavorable attitudes toward the U.S. and its institutions. [4] A broad term, “unfavorable attitudes” constitute any views held by a non-citizen that criticize the U.S. government, particularly in regards to their foreign policy. In recent months, various international students enrolled in American universities and colleges have faced immigration-related consequences following their expressed criticism against American foreign policy within the context of the Israel-Palestine conflict. [5] This order serves as a tool to perpetuate fear of retaliation among foreigners living in the U.S., effectively restricting their comfortability in exercising free speech.
Despite its short nature, Executive Order 14161’s language serves as a major area of concern regarding the free-speech rights of non-citizens. Composed of three main sections and subsections, Section 1 (b) contains the main source of concern stating: “... the United States must ensure that admitted aliens and aliens otherwise already present in the United States do not bear hostile attitudes toward its citizens, culture, government, institutions, or founding principles.” [6]
This article uses the term “non-citizens” in place of “aliens” for clarity and inclusivity. Carefully examining the language of Section 1 (b), the clauses “admitted” and “otherwise already present in the United States” target documented and successfully vetted individuals who consequently hold authorized status. The Trump Administration’s terminology referring to undocumented non-citizens, such as “illegal” and “alien,” indicates Section 1(b)’s intention to include documented non-citizens under this section. Any measures or retaliatory actions taken by the federal government against documented non-citizens would likely include the revocation of visas, green-cards, and other indications of “legality.”
Additionally, Section 3 (d) presents another point of concern as it advocates for federal agencies to recommend any action necessary to protect the American citizenry from foreign nationals who present a threat to “...our Citizens’ rights to freedom of speech and the free exercise of religion protected by the First Amendment, who preach or call for sectarian violence, the overthrow or replacement of the culture on which our constitutional Republic stands…” [7] Executive Order 14161 aims to protect the right to freedom of speech of the American citizenry by discouraging the free speech of another identity group, non-citizens, creating a paradox. The government does not have the constitutional authority to pick and choose what group identities can exercise free speech and who cannot. [8]
III. PAST PRECEDENT ON CONSTITUTIONAL RIGHTS FOR NON-CITIZENS
Evaluating the constitutionality of Executive Order 14161 requires first determining whether the rights and liberties enshrined in the Constitution extend to non-citizens residing within the United States. When analyzing the text of the Constitution, it is important to consider the terms used to refer to persons living within the U.S. and whose protections provided by these documents extend to. The rights and liberties provided within the First, Second, Fourth, Ninth, and Tenth amendments are afforded to the “people,” not “citizens.” [9] Likewise, the right to due process provided by the Fifth Amendment is afforded to not to a citizen, but to a “person.” [10]
Previous Supreme Court cases have attempted to answer this legal question, determining that some portions of the Constitution apply to non-citizens. Shaughnessy v. United States ex rel. Mezei (1953) found that any non-citizen, regardless of whether they entered the U.S. lawfully or not, are recognized as persons and have the “constitutional right to traditional standards of fairness” enshrined within the fifth and fourteenth amendment. [11] A non-citizen unlawfully present within the U.S. cannot be expelled without proceedings held according to the due process of law. [12] Plyler v. Doe (1982) later reaffirmed the expansion of the Fourteenth Amendment to all persons residing within the U.S., with Justice Blackmun stating in his concurring opinion that the denial of public education to children on the basis of legal status was “utterly incompatible with the Equal Protection Clause of the Fourteenth Amendment.” [13] Among the various constitutional amendments, courts most frequently apply the Fifth and Fourteenth Amendments to non-citizens and definitively recognize fundamental protections regardless of citizenship status
However, the Constitution does not apply in its entirety to non-citizens. The application of the Second Amendment, for example, varies according to state and region. In May of 2024, a federal judge in the Northern District of Illinois ruled in favor of dismissing firearm possession charges against a non-citizen. [14] The application of the Constitution described above regards all non-citizens, lawfully and unlawfully present within the United States. Lawfully present noncitizens, the targets of Executive Order 14161, enjoy a wider application of the Constitution than unlawfully present non-citizens. In Yamataya v. Fisher (1903), “the Supreme Court maintained the notion that once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution.” [15] Consequently, any attempt to revoke these constitutional rights reaffirmed by the Supreme Court presents a constitutional violation.
IV. CONSTITUTIONAL VIOLATIONS PRESENTED BY EXECUTIVE ORDER 14161
Executive Order 14161’s aim of penalizing lawfully present non-citizens for exercising “hostile speech” is inherently unconstitutional. The following arguments demonstrate the order’s illegal nature:
(i) Its contradiction of Bridges v. Wixon (1945).
(ii) The illegality of restricting speech based on identity. (iii) The first amendment is not speaker-based.
(iiii) The speech the Trump Administration wishes to restrict does not necessarily fall into an unprotected category of speech.
i. Contradiction of Wixon v. Bridges (1945)
In Bridges v. Wixon (1945), Harry Bridges encountered a legal challenge that a lawful noncitizen today might face under Executive Order 14161. Lawfully residing within the U.S., the Attorney General set Bridges for deportation under the Alien Registration Act of 1940, which allowed for the deportation of non-citizens affiliated with the Communist Party. [16] The Supreme Court ruled against this, establishing that “freedom of speech and of press is accorded to aliens residing in this country.” [17] In his concurring opinion, Justice Murphy remarked “this case will stand forever as a monument to man’s intolerance of man” and, “once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders.” [18]
Bridges v. Wixon (1945) affirms the First Amendment rights of non-citizens lawfully present within the United States. The Attorney General framed Bridges’ alleged affiliation with the Communist Party as a threat to the very same principles and institutions listed in Section 1(b) of Executive Order 14161: citizens, culture, government, institutions, and founding principles. [19] Officials justified his deportation by painting it as a measure to maintain and protect national security, echoing the rationale behind Executive Order 14161.
Unlike the Alien Act of 1940 which provided the specific grounds of deportation (Communist affiliation), Executive Order 14161 is extremely vague in its specification of actions that could warrant deportation or removal. Despite claiming that espousing “hostile” attitudes could warrant removal, “hostility” is extremely subjective, and courts can interpret this definition in a plethora of ways. Executive Order 14161 completely disregards the law and precedent established by Bridges v. Wixon, and as such, should not stand as a legal document.
ii. Illegality of Restricting Speech Based on Identity
The Supreme Court has established that the government does not have the authority to limit speech on the basis of a speaker’s identity: The state cannot restrict an individual’s freedom of speech based on their identity or how they choose to identify. [20] Lawfully present non-citizens constitute a shared identity as immigrants residing in the United States. A non-citizen’s status as an immigrant or foreigner inherently forms part of their identity, and the government cannot use this to limit their expression. Individuals residing within the U.S. are often grouped by the U.S.government on the basis of their legal status, which can range from natural-born citizen to undocumented. Authorities frequently use legal status for identification purposes, such as employment and education, further reinforcing the idea of legality as an identity. The government cannot separate lawfully present non-citizens from U.S. citizens based on their “legal” identity, nor can it coerce or threaten them into silence.
Citizens United v. FEC (2010) restricts the government from limiting speech on the basis of identity. [21] In his opinion, Justice Kennedy emphasized the importance of allowing free speech as a “means to hold officials accountable to the people.” [22] Lawfully present non-citizens lose the ability to hold their government accountable whenever their free speech becomes a basis for deportation. Additionally, Citizens United v. FEC (2010) established the speaker discrimination doctrine in which a government is considered to be committing a “constitutional wrong” when by law it identifies certain preferred speakers.” [23] Executive Order 14161 discourages the views of non-citizens if they are considered to contain “hostile attitudes” that threaten U.S. citizens, a clear violation of the speaker discrimination doctrine. [24]
An individual’s identification as a non-citizen or immigrant is inherently part of their identity and cannot be used to exclude them from national discourse. The justification behind the claim that the First Amendment is not speaker-based stems from the language of the U.S. Constitution. No amendment in the constitution utilizes “citizens” but instead more abstract words such as “the people” or “persons.” [25] This reigns true for the First Amendment which states: “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.” [26] Some constitutional scholars and federal entities, such as the Department of Justice, have argued that “the people” does not encompass everyone residing within the U.S. [27] However, careful analysis of the First Amendment’s language suggests that “the people” is not tied to the freedom of speech but is tied to the right to freely assemble and petition the government. [28] Freedom of speech is referred to abstractly and does not justify the Trump administration’s attempt to silence legally present non-citizens from expressing their views. Despite Executive Order 14161’s assumption, the First Amendment does not apply solely to U.S. citizens, whose status protects them from government infringement and deportation.
iii. Protected vs. Unprotected Speech
The federal government holds the power and discretion to limit a select number of speech categories. For example, obscenity, fighting words, incitement, and more traditionally do not receive First Amendment protection. [29] As aforementioned, section 1(b) of Executive Order 14161 seeks to target speech by non-citizens that contains “hostile attitudes” toward U.S. “ citizens, culture, government, institutions, [and] founding principles.” [30] All hostile attitudes include a degree of negativity, but not all of these attitudes fall under obscenity, fighting words, incitement, and the like.31 The government has no legal basis upon which it can restrict the expression of hostile attitudes of non-citizens. Even if a non-citizen demeaned American institutions, society’s outrage is not sufficient to justify the restriction of free speech. [32] For example, a non-citizen could burn an American flag and face no consequences for their symbolic expression. [33] The First Amendment protects speech, regardless of how offensive it may be. [34]
V. EFFECTS OF EXECUTIVE ORDER 14161
Less than 90 days into President Trump’s second presidential administration, the nation – particularly university students – have already experienced the horrifying effects of Executive Order 14161. In recent weeks, a handful of international students legally residing within the United States have had their student visas revoked following their participation in pro-Palestine protests, including Columbia University Ph.D. student Ranjani Srinivasan, Cornell University Ph.D. student Momodou Taal, and Tufts University graduate student Rumeysa Ozturk. [35] Shockingly, the Trump administration also targets longtime residents. It threatened Yunseo Chung, a third-year student at Columbia University and legal permanent resident of the U.S. since the age of seven, with deportation following her participation in pro-Palestine protests. [36]
Secretary of State Marco Rubio has claimed that the government revoked over 300 visas, and defended the administration’s actions by implying that non-citizen students cannot participate in social activism on their respective campuses. [37] Bridges v. Wixon rejects this stance and offers a different interpretation.
The revocation of student visas and permanent residency statuses will undoubtedly lead to a chilling of expression. Individuals who would have otherwise engaged in free speech and activism in support of controversial issues must reconsider their activity and how it may affect their legal standing. Under the Trump administration, visas and permanent resident status no longer provide individuals with protection from deportation. This will have significant impacts on the viability of social justice movements, particularly in regards to immigration. Immigrants, who make up a significant portion of the immigrants’ rights movement and whose voices are especially important for policy change, are at risk of deportation if the administration deems their activism to be a threat to national security. [38]
VI. CONCLUSION
A strong supporter of civil liberties and rights, former Supreme Court Justice William O. Douglas expressed, “Restriction of free thought and free speech is the most dangerous of all subversion. It is the one un-American act that could most easily defeat us.” [39] Undoubtedly, the Executive Order 14161 is an un-American act and an explicit violation of the First Amendment. This administration's attempt to penalize lawfully present non-citizens for engaging in “hostile speech” undermines important legal precedents, particularly Bridges v. Wixon. Since 1945, the Supreme Court has recognized the right to freedom of speech for lawfully present non-citizens. Furthermore, the order’s focus on restricting speech based on the non-citizen or immigrant identity of those targeted violates the prohibition against speaker discrimination established in Citizens United v. FEC (2010). By ignoring the speaker-neutral nature of the First Amendment, this order encroaches on the constitutional right to free speech of non-citizen individuals.
In light of these factors, Executive Order 14161 not only violates established constitutional protections, but also threatens to undermine the very essence of free expression in the United States, particularly for immigrant communities who may now face deportation for engaging in constitutionally protected speech. This action is a clear violation of the principles of justice and democracy that the Constitution guarantees to all individuals within the nation’s borders, regardless of their citizenship status. It is important that the American people rise together to protect the sanctity of the nation’s most precious document, the Constitution, and make it clear to the Trump administration that no one is above the law.
Endnotes
[1] Sarah Chernikoff and Ramon Padilla, “Comparing Trump's Day 1 executive orders to past presidents: See graphics,” USA Today, January 23, 2025, https://www.usatoday.com/story/graphics/2025/01/23/how-many-executive-orders-did-trump-sign/77881247007/.
[2] “Protecting the United States From Foreign Terrorists and Other National Security and Public Safety Threats,” The White House, published January 20, 2025, https://www.whitehouse.gov/presidential-actions/2025/01/protecting-the-united-states-from-foreign-terrorists-and-other-national-security-and-public-safety-threats/.
[3] Faiza Patel, “Trump’s Executive Order on Foreign Terrorists: Implications for the Rights of Non-Citizens,” Brennan Center for Justice, February 6, 2025, https://www.brennancenter.org/our-work/analysis-opinion/trumps-executive-order-foreign-terrorists-implications-rights-non.
[4] The White House, “Protecting the United States From Foreign Terrorists and Other National Security and Public Safety Threats.”
[5] Leila Fadel et al., “‘Citizenship won't save you’: Free speech advocates say student arrests should worry all,” NPR, April 8, 2025, https://www.npr.org/2025/04/08/nx-s1-5349472/students-protest-trump-free-speech-arrests-deportation-gaza.
[6] The White House, “Protecting the United States From Foreign Terrorists and Other National Security and Public Safety Threats.”
[7] Ibid.
[8] Citizens United v. FEC, 558 U.S. 310 (2010).
[9] U.S. Constitution, amends. 1, 2, 4, 9, 10.
[10] U.S. Constitution, amend. 5.
[11] “Shaughnessy v. United States ex rel. Mezei,” Legal Information Institute (LII), accessed March 14, 2025, https://www.law.cornell.edu/wex/shaughnessy_v._united_states_ex_rel._mezei.
[12] U.S. Constitution, art. I, sec. 8, cl. 18.
[13] Plyler v. Doe, 457 U.S. 202 (1982).
[14] Nick Mordowanec, “Undocumented Immigrants Have Right to Own Guns, Judge Rules,” Newsweek, March 19, 2024, https://www.newsweek.com/undocumented-immigrants-have-right-own-guns-judge-rules-1880806.
[15] U.S. Constitution, art. I, sec. 8, cl. 18.
[16] Joseph B. Joyce, “Constitutional Law -- Rights of Communist Aliens Subject to Deportation,” Notre Dame Law Review 30, no. 3 (1955): 439, https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=3671&context=ndlr.
[17] Bridges v. Wixon, 326 U.S. 135 (1945).
[18] Ibid.
[19] The White House, “Protecting the United States From Foreign Terrorists and Other National Security and Public Safety Threats.”
[20] Vanessa Canuto, “Immigrants Are People Too: Constitutionalizing Free Speech Protections for Undocumented Immigrants,” First Amendment Law Review 17, no. 3 (Spring 2019): 416, https://heinonline.org/HOL/P?h=hein.journals/falr17&i=425.
[21] Citizens United v. FEC, 558 U.S. 310 (2010).
[22] Canuto, “Immigrants Are People Too,” 416.
[23] Ibid., 418.
[24] The White House, “Protecting the United States From Foreign Terrorists and Other National Security and Public Safety Threats.”
[25] U.S. Constitution, amends. 1, 2, 4, 5, 14.
[26] U.S. Constitution, amend. 15, cl. 1.
[27] Samantha Chasworth, “Shut up: You Don’t Even Go Here. An Examination of First Amendment Rights for Noncitizens,” Journal of Civil Rights and Economic Development 32, no. 2 (Fall 2018): 145–146, https://heinonline.org/HOL/P?h=hein.journals/sjjlc32&i=149.
[28] Canuto, “Immigrants Are People Too,” 419.
[29] Floridians Protecting Freedom, Inc. v. Ladapo, 2024 U.S. Dist. LEXIS 189349.
[30] The White House, “Protecting the United States From Foreign Terrorists and Other National Security and Public Safety Threats.”
[31] Floridians Protecting Freedom, Inc. v. Ladapo, 2024 U.S. Dist. LEXIS 189349.
[32] “Facts and Case Summary - Texas v. Johnson,” United States Courts, accessed March 15, 2025, https://www.uscourts.gov/about-federal-courts/educational-resources/educational-activities/first-amendment-activities/texas-v-johnson/facts-and-case-summary-texas-v-johnson.
[33] Floridians Protecting Freedom, Inc. v. Ladapo, 2024 U.S. Dist. LEXIS 189349.
[34] “Speech on Campus,” ACLU, published December 18, 2023, https://www.aclu.org/documents/speech-campus.
[35] Leila Fadel, Taylor Haney, Arezou Rezyani, Kyle Gallego-Mackie, “‘Citizenship won’t save you’: Free speech advocates say student arrests should worry all,” NPR, April 8, 2025, https://www.npr.org/2025/04/08/nx-s1-5349472/students-protest-trump-free-speech-arrests-deportation-gaza.
[36] Lexi Lonas Cochran, “Here are the international students and faculty known to be targeted by ICE,” The Hill, March 27, 2025, https://thehill.com/homenews/education/5217595-international-students-faculty-trump-immigration-crackdown-ice-tufts-student-detained-columbia-alabama/.
[37] Fadel, Haney, Rezyani, Gallego-Mackie, “‘Citizenship won’t save you.’”
[38] Chasworth, “Shut up: You Don’t Even Go Here,” 159–162.
[39] “The One Un-American Act,” American Library Association, accessed March 8, 2025, https://www.ala.org/bbooks/one-un-american-a.