Volokh on Bluman

Eugene:

I’m not persuaded by the Court’s analysis, especially as to independent expenditures. It seems to me that the right to speak about any subject — including about candidates — using one’s own money (or the money that one’s organization has put at one’s disposal) is indeed the exercise of free speech, and can’t be limited on the grounds that it constitutes participation in elections. That one can’t participate in an election by voting shouldn’t stop one from participating in public debate (including debate about who should be elected) by speaking.

Moreover, the precedents that the District Court cited don’t strike me as apposite. Most deal with noncitizens’ not being protected by the Equal Protection Clause in certain contexts: The Supreme Court has held since the early 1900s that discrimination by states (not the federal government) against noncitizens is presumptively unconstitutional, but in certain “political” contexts is allowed. But this doesn’t tell us much about the proper scope of noncitizens’ substantive rights such as free speech rights, especially when they are rights that are often talked about as basic human rights.

And the one First Amendment case the District Court cites, Harisiades v. Shaughnessy (1952), is ambiguous. Though it allowed the deportation of noncitizens for being members of the Communist Party, but this was at a time when even American citizens were seen as being punishable for being members of the Communist Party. Indeed, the Harisiades Court cited as support Dennis v. United States (1951), a case upholding criminal punishment of a U.S. citizen for being a Communist Party leader.

Nor does it seem to me that a total ban on all paid-for speech about candidates made by non-permanent-residents — regardless of the amount of the payment or of any other circumstances — is narrowly tailored to any potentially compelling government interest in national security or freedom from foreign influence.

But the three judges in Bluman don’t share my view on the reasoning. And at least five and maybe all nine of the Supreme Court Justices think that the District Court’s result is correct — that noncitizens (at least ones who aren’t permanent residents) may indeed be banned from spending even small amounts of money to express support or opposition to candidates for office.

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