Warning over government's right to revoke US visas for 'any reason' amid denials after Kirk comments
The State Department claimed the six foreigners had made social media posts criticizing right-wing activist Charlie Kirk
Three labor unions have filed a lawsuit against the Trump administration after the State Department stripped visas from six foreigners this week who it claimed made social media posts insensitive to the death of Charlie Kirk.
The administration and its supporters have targeted people for their comments about the right-wing activist since his assassination last month, pursuing firings and other disciplinary measures against journalists, teachers, service members and talk-show hosts, raising questions about free speech violations. Now, a lawsuit filed against the Trump administration has challenged its surveillance of the visa holders' social media accounts, it being the means by which their alleged comments were discovered and, ultimately, their visas revoked.
A Stanford University legal scholar said that while the First Amendment is clear in prohibiting the punishment of United States citizens for holding or expressing political opinions, "including speech that is offensive or political," the same does not hold true for non-citizens. Even if the move by the State Department "raises serious free speech concerns in principle," he said, "there is no legal mechanism that forces the government to restore their status."
Eric A. Baldwin, a postdoctoral research fellow at Stanford Law School, said despite a threat by Attorney General Bondi on Sept. 15 that the Justice Department would "target" and "go after" those practicing hate speech, "there has been no formal change to the law that weakens those protections."
Bondi was later forced to walk back the statement.
"For non-citizens who are outside the United States or in the country on temporary visas, the situation is different," Baldwin said. "Courts have consistently given the executive branch sweeping authority over visa decisions. That means the government can deny or revoke a visa for almost any reason, including speech.
"So while the First Amendment doctrine itself has not changed, the practical protection for foreign nationals’ speech is very limited when immigration powers are involved."
Baldwin said that visa decisions generally fall under "consular discretion," and courts seldom interfere, "even in cases where the denial appears political or based on viewpoint."
"There are Cold War examples where foreign academics were excluded for ideological reasons, and the courts allowed it," he added. And even though the visa revocations come amid a cavalcade of other potentially unconstitutional speech-related punishments and threats from the Trump administration, "it is unlikely to be found unconstitutional as a matter of current law," he said.
The six foreigners who had their visas revoked are from Argentina, Brazil, Germany, Mexico, Paraguay and South Africa, according to the State Department. Trump and Secretary of State Marco Rubio “will defend our borders, our culture, and our citizens by enforcing our immigration laws,” the department said. “Aliens who take advantage of America’s hospitality while celebrating the assassination of our citizens will be removed.”
Vice President JD Vance and Defense Secretary Pete Hegseth have been two of the loudest voices in a chorus of Republican leaders who have called for disciplinary measures against people who they say painted Kirk in a negative light. As a guest host on the "Charlie Kirk Show" on Sept. 15, Vance urged viewers from inside the White House to report anyone celebrating Kirk's death to their employers. “Call them out, and hell, call their employer," he said.
Hegseth, meanwhile, reportedly sought out members of the military who had, in his view, mocked or made light of the incident so that they could be punished, according to NBC. Several service members were relieved from their roles because of social media posts.
The administration has also denied visas to applicants whose social media histories have been critical of its policies, according to The Associated Press.
Among the higher-profile cases, the administration has expelled South Africa’s ambassador to the U.S. for comments critical of Trump, revoked a visa for Palestinian President Mahmoud Abbas to attend the U.N. General Assembly and yanked the visas for British punk-rap duo Bob Vylan. It said it is reviewing the status of the more than 55 million current U.S. visa holders for potential violations of its standards.
Baldwin said the visa holders have "very little" recourse in regaining their legal status.
"There is no meaningful appeals process for visa revocation," he said. "They could apply again or request a waiver, but there is no legal mechanism that forces the government to restore their status. Courts usually decline to review these decisions."
A lawsuit Thursday by three unions was filed against the State Department, the Department of Homeland Security and others, according to The Associated Press.
They are seeking to block a federal program they say is “designed and executed primarily to surveil, intimidate, and silence noncitizens lawfully present in the United States who express views that the government disfavors.”
The lawsuit, filed in federal court in New York, argues that the government is using the threat of immigration enforcement to suppress dissent, in violation of the First Amendment. It claims the government’s use artificial intelligence allows it to “review and process large volumes of social media and online activity at a scale previously difficult or impossible to analyze with human review alone,” allowing it to continuously surveil of 55 million U.S. visa holders, with the goal of punishing those who express “disfavored” viewpoints.
When asked about the identity of the six targeted foreigners, the State Department referred The Mirror US to an X post on its official account from Tuesday, which included screenshots of the social media comments that were allegedly written by the visa holders.
The revocations were announced on Tuesday as Trump was posthumously awarding Kirk America’s highest civilian honor, the Presidential Medal of Freedom. At Kirk’s funeral in September, Trump called him a “great American hero” and “martyr” for freedom.