From Thinking Outside the Boxe’s London Correspondent

Many Americans consider free speech to be one of the most important rights guaranteed by the Constitution. Under the 1st Amendment, citizens have the right to practice whatever religion they choose, print whatever they like, and say whatever they like, even if these words criticize the government or America itself, without any fear of prosecution. But do the same rules apply to foreigners in the U.S.? Although most people would agree that anyone living in the U.S. has free speech in principle, the issue has become a lot murkier since 9/11 and growing fears of terrorism and anti-Americanism within the United States. Does the right to free speech extend to foreign individuals inciting hate? Does it extend to the sentiments behind terrorist attacks? The facts may be unpopular, but legally, the answer is “yes.”

In past cases, the Supreme Court has repeatedly proved that the Constitution and its Amendments apply to everyone within the United States, even illegal immigrants, as they fall under the category of “persons.” Moreover, the 1st Amendment does not directly address what individuals can do, but what the government cannot do: it cannot make any law that restricts freedom of speech, religion or the press. The universality of this language clearly includes any law, even those pertaining to immigrants and temporary residents in the United States.

The key question is therefore not “does the 1st Amendment apply to foreigners” but “does the 1st Amendment cover speech that incites hate or even terrorism?” This has been tested numerous times by the Supreme Court, and a couple of exceptions have been found. The 1st Amendment does not apply to speech that is designed to incite people to riot and it does not cover “fighting words,” words that were personally aimed at another individual with the aim of inciting violence. As long as your words do not fall into these two categories, you can basically say whatever you like. Although there have been numerous attempts to ban flag burning, it is currently not illegal – individuals are free to destroy the flag in protest against the United States, or for any reason (except starting a riot).
Recent court cases with the Westboro Baptist Church, a group that protests outside the funerals of soldiers killed in Iraq with signs such as “God hates the USA” and “Thank God for dead soldiers,” have proven that even the most hateful and emotionally distressing speech is protected in the U.S. They have been sued in many states for disrupting funerals and causing lasting emotional distress with their hate speech, but no case against them has ever been successful, and a recent challenge in the Supreme Court also found in their favor. Individuals, even foreign individuals, are free to hate the United States and spread that hatred, as long as their aim is not to incite immediate violence or rioting.

However, when it comes to terrorism, different rules often apply. The Patriot Act, for example, was passed in 2002 in part to make it easier for the authorities to detain and deport immigrants suspected of terrorism-related activities. This law allows immigration officials to deport anyone who has or intends to participate in terrorism, and this category includes, among other things, inciting terrorist activity, being a member of a terrorist organization, endorsing or supporting terrorist activity or supporting a terrorist organization. Any foreign resident of the U.S. who makes public declarations that “Al Qaeda is right” or attempts to encourage others within the U.S. to participate in terrorist activities will be subject to deportation, and so, at this extreme level, the 1st Amendment does not apply to foreigners. Although in theory these laws should only apply to those with actual connections to terrorist organizations or with the intent to imitate their work, in our current security-conscious society, anyone who seems too supportive of their mission or ideology is likely to find themselves deported.

However, as these laws are concerned with terrorism, they only cover the extreme end of the anti-American spectrum. As long as foreign individuals steer clear of association with terrorist organizations and do not attempt to incite violence, they are as free to publicly hate the U.S. or its inhabitants as anyone else inside the U.S. without legal repercussions.

In Western countries, however, the law is very different. Several European countries, including France and the U.K., have laws against hate speech, and any individual, including citizens, can be prosecuted for speech that threatens or harasses others based on their race, nationality, religion or sexual orientation, and be punished by fines or imprisonment. In 2011 in the U.K., for example, members of a group called Muslims Against Crusades were fined for burning poppies, symbols of remembrance for soldiers who have been killed in war, and chanting “Burn, burn British soldiers, British soldiers burn in hell” during the annual two minutes silence on Armistice Day. The Westboro Baptist Church, meanwhile, has been banned from even entering the U.K. on the basis of their hate speech. Yet although these laws are in place to protect individuals and minority groups and to prevent the outbreak of violence, protests against the government, anti-British speech and even political groups that are based in part on unstated hatred of others are legally allowed in the U.K.

One of the most important rights in a free democracy is the right to criticize the government and the country itself, even if this criticism could be construed as hatred. Although it is questionable whether any individual, citizen or foreigner, should have the right to target hate speech against other individuals or groups, it is clear that anyone, citizen, legal resident, illegal immigrant or visitor, can express their beliefs against the government or against America itself without legal repercussions. As long they do not incite violence and are unconnected to terrorist activities, the Constitution protects anything they choose to say.