This commentary is by Jay Diaz, an attorney and civil rights litigator with Darby Kolter & Roberts in Waterbury, and Jill Martin Diaz, an immigration attorney and executive director of the Vermont Asylum Assistance Project.
“Terrorist sympathizers.” “Operating on behalf of terror cells.”
These are phrases recently used by a member of the Vermont House Judiciary Committee during ACLU of Vermont testimony about immigrant protesters.
In recent weeks, Vermont made international news with lawful residents and visa holders being hauled to jail for their political views. Politically engaged students here are having their visas revoked with no notice.
All this has many Vermonters asking, “Do noncitizens have First Amendment rights?” This conversation is a redux of the first Trump administration’s impact in Vermont. The administration is kicking those efforts into hyperdrive this time around, in Vermont and around the country.
So, let’s be clear from the start: The Constitution’s protections — including the First Amendment — apply to all individuals on U.S. soil, regardless of citizenship or immigration status. The U.S. Supreme Court has affirmed this repeatedly. Immigrants have constitutional rights to due process, legal counsel, privacy, public education and, critically, free speech.
A concurring opinion to Bridges v. Wixon famously summarized the court’s application of First Amendment rights to immigrant speech, recognizing they “possess(ed) the right to free speech and free press, and that the Constitution will defend (them) in the exercise of that right.”
More recently, the Court of Appeals for the Second Circuit, in which Vermont sits, clarified in Ragbir v. Homan that Ragbir’s immigration reform advocacy “implicates the apex of protection under the First Amendment” and found it “egregious” that “the Government singled him out for deportation based not only on the viewpoint of his political speech, but on the public attention it received.”
No matter whether someone is a permanent resident, a temporary visa holder or undocumented, they retain basic constitutional protections — including the right to express protected viewpoints free from the threat of arrest, jail or deportation.
There is no immigrant-speech exception to the First Amendment.
Yet we see the Trump administration targeting immigrant activists for their political speech, claiming their words alone make them a national security threat. But the Constitution does not view political speech — even when controversial, “anti-American,” or sympathetic to U.S. “enemies” — as a danger justifying government retaliation.
Supreme Court jurisprudence is replete with legal rulings protecting extreme and even heinous political speech — from Klan rallies and Westboro Baptist funeral protests to flag burning and foreign propaganda distribution. The First Amendment protects it all, limited only by narrowly defined incitement, defamation, discrimination, true threats, and the reasonableness of time and place.
Why? Because handing the government the power to censor or punish opinions is the definition of tyranny. When officials can retaliate against dissenters, fear stifles speech. The marketplace of ideas central to our democracy withers. When one opinion or one type of speaker can be punished, it threatens the free speech of all.
Today, immigrants face the loss of their education, homes, families and freedom for exercising their speech rights. Many are self-censoring out of fear of ICE action. They should not carry the torch of free speech alone.
Citizens must step up to fight for more. We can call out and reject efforts to suppress immigrant speech under the guise of national security. We can push to reform immigration law that has for too long granted the executive branch king-like powers, creating fertile ground for extralegal abuses of sacrosanct rights, such as recasting lawful speech as “dangerous” because it comes from immigrants.
The founders would demand no less. They wanted to eliminate the tyranny of monarchs who punished political dissidents. They enshrined their ideal in the language of the First Amendment: “Congress shall make no law … abridging the freedom of speech.”
Now, however, armed agents are pulling people from their homes and off the street for speaking out. People are scared to speak their minds. The founders’ dream of a country where no one could be punished for speaking against their government is turning into a nightmare.
Thankfully people across the ideological spectrum are speaking up. Gov. Phil Scott gets it. Our Statehouse representatives are making their voices heard, too.
Vermonters must all take the high road — one that defends everyone’s right to speak, especially on political matters, even when we dislike the speaker or vehemently disagree with their opinion.
Our fundamental rights rise or fall with those of our immigrant neighbors.
