Communism is Just a Red Herring: Inadmissibility and Freedom of Speech

By Laura Love Feild, J.D. Class of 2022

“We as a nation lose part of our greatness whenever we deport or punish those who merely exercise their freedoms in an unpopular though innocuous manner.  The strength of this nation is weakened more by those who suppress the freedom of others than by those who are allowed freely to think and act as their consciences dictate.”¹

These words were used to ensure documented noncitizens in this country were granted protection by the First Amendment.²  But, this protection has not been extended to all noncitizens who are seeking entry into the United States or noncitizens who are here without documentation.³  Limiting this protection to citizens and documented noncitizens is fundamentally incompatible with the rarified pedestal the First Amendment occupies in this country.

While the United States has been excluding noncitizens on grounds of their political beliefs as far back as 1903,⁴ USCIS issued policy guidance on members of the Communist Party in October 2020.⁵  There is now a four-step process to determine if someone is inadmissible on the basis of their membership in a Communist or other totalitarian party.⁶

First, there must be a determination that the organization is a Communist or other totalitarian party.⁷  The regulations define Communist Party using specific organizations, without investigation into the policies or practices of the organizations.⁸  Totalitarian parties are defined by their indistinguishability between the government and the party and the suppression of opposition to the party.⁹

The second determination is whether the individual’s association to the party is “membership” or “affiliation.”¹⁰  Membership is defined by the requirements of the party itself.¹¹  Affiliation is something more than mere sympathy, but less than membership, such as a voluntary action that provides support to the party.¹²

Third, for an applicant to be inadmissible on these grounds, the membership or affiliation must be “meaningful.”¹³ This judge-made requirement means the person needs some sort of knowledge or awareness of the political nature of the party.¹⁴

Finally, even if the organization is a Communist or other totalitarian party, the person was a member, and that membership or affiliation was meaningful, a person may still be admissible if they fall under one of the exceptions.¹⁵  The exceptions include when the membership or affiliation is involuntary, required by law, or when necessary for getting “essentials of living” like food, shelter, and clothing.¹⁶  If a person is found inadmissible under the four-step analysis, and an exception does not apply to them, they may still qualify for a waiver.¹⁷

There is speculation that the Trump Administration implemented this new policy in response to increased tensions between the administration and China.¹⁸  Before this latest policy update, the Trump Administration considered a travel ban on members of the Chinese Communist Party.¹⁹  While the substantive law did not change with policy update, it signals a stricter reading of the regulations when reviewing applications of members of the Chinese Communist Party.²⁰ 

This policy is antithetical to Free Speech doctrine and values.  It is well settled that citizens have a right of association for the purpose of engaging in expressive activities – and yet, those seeking admission to the United States are not granted the same right.²¹  Citizens’ right of association is grounded in the belief that the advocacy, essential for self-government, is enhanced by the forming groups.²²  Additionally, the First Amendment prohibits punishment of association with an organization on the basis of that organization’s advocacy.²³ 

Noncitizens seek admission to the United States for a variety of reasons, including our commitment to these free speech principles.  How do we, as a nation, turn those away based on their political beliefs and simultaneously profess a deep commitment to freedom of speech?  If our country wants to live up to the values of the First Amendment, free speech protections should be extended to noncitizens seeking admission. 

Further, under the First Amendment, content-based laws, such as a law that targets a political ideology, receive strict scrutiny.²⁴  “[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”²⁵  Content censorship would undermine the hearty political debate valued in this doctrine.²⁶

Despite the reverence with which the First Amendment is treated, questions of Free Speech rights are cast aside during the inadmissibility debate.   The Supreme Court is “at a loss to understand” why denying admission to the United States on the basis of a political ideology “is obnoxious” to the First Amendment.²⁷  This is either feigned ignorance or willful blindness.  First Amendment doctrine evolved in the intervening years – it is time for inadmissibility to evolve as well.

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[1] Bridges v. Wixon, 326 U.S. 135, 165 (1945) (Murphy, J., concurring).

[2] Id.

[3] United States ex rel. Turner v. Williams, 194 U.S. 279, 294 (1904).

[4] See, e.g., id.

[5] U.S. Citizenship and Immigr. Serv., 8 Policy Manual (2021), https://www.uscis.gov/policy-manual/volume-8-part-f-chapter-3#footnotelink-3.

[6] Id.

[7] Id.

[8] See id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Lin Yang, Experts Weigh Impact of US Immigrations Ban on Chinese Communists, Voice of America (Oct. 8, 2020, 6:11 PM), https://www.voanews.com/a/usa_experts-weigh-impact-us-immigration-ban-chinese-communists/6196908.html.

[19] Matt Spetalnick, U.S. Targets Chinese Communist Party Members in Possible Travel Ban: Source, Reuters (July 16, 2020, 1:17 PM), https://www.reuters.com/article/us-usa-china-travel/u-s-targets-chinese-communist-party-members-in-possible-travel-ban-source-idUSKCN24H2TQ.

[20] Yang, supra note 18.

[21] NAACP v. Ala. ex rel. Patterson, 357 U.S. 449, 460 (1958); United States ex rel. Turner v. Williams, 194 U.S. 279, 294 (1904).

[22] See NAACP, 357 U.S. at 460.

[23] Brandenburg v. Ohio, 395 U.S. 444, 449 (1969).

[24] See, e.g., Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 99 (1972).

[25] Id. at 96.

[26] Id.

[27] Williams, 194 U.S. at 292.