Plaintiffs Khader Musa Hamide and Michel Ibrahim Shehadeh (“Hamide and She-hadeh”); Bashar Amer, Ayman Mustafa Obeid, Julie Nuangugi Mungai, Aiad Kha-led Barakat, Naim Nadim Sharif, Amjad Mustafa Obeid (“Other Six”); American-Arab Anti-Discrimination Committee, Arab-American Democratic Federation, Association of Arab American University-Graduates, Irish National Caucus, Palestine Human Rights Campaign, American Friends Service Committee, League of United Latin American Citizens, Michel Bo-gopolsky, Darrel Meyers, and Southern California Interfaith Task Force on Central America (“Organizational Plaintiffs”) move the Court for summary judgment and for declaratory and injunctive relief. They challenge the constitutionality of Sections 241(a)(6)(D), (F)(iii), (G)(v), and (H) of the McCarran-Walter Act of 1952, (“McCarran-Walter provisions”), codified in 8 U.S. C. §§ 1251(a)(6)(D), (F)(iii), (G)(v), and (H) 1 and of Sections 901(a) and 901(b) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989 (“FRAA”), Pub.L. No. 100-204, § 901, 101 Stat. 1331, 1399 (1987) (amended October 1, 1988). 2
We conclude that the Other Six and the American-Arab Anti-Discrimination Committee (“ADC”) have standing to challenge the McCarran-Walter provisions. On the merits, we hold that aliens who are legally within the United States are protected by the First Amendment of the United States Constitution and that this protection is not limited in the deportation arena by the Government’s plenary immigration power. Applying established First Amendment principles, we find that the McCarran-Walter provisions are substantially overbroad in violation of the First Amendment. We therefore grant Plaintiffs’ motion for summary judgment and request for declaratory relief. As these rulings provide Plaintiffs with an adequate remedy at law, we deny their request for injunctive relief.
See Beacon Theatres v. Westover,
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The Immigration and Naturalization Service (“INS”) first commenced deportation proceedings against Hamide, Shehadeh, and the Other Six in January of 1987 alleging that these aliens were deportable under the McCarran-Walter provisions. Specifically, the Government charged them with being members of or affiliated with the Popular Front for the Liberation of Palestine (“PFLP”), an organization that advocated the economic, international and governmental doctrines of world communism through written and/or printed publications issued on or under the authority of such organization. On April 23, 1987, the INS abandoned the proceedings against all the aliens on these charges. New McCar-ran-Walter Act charges were brought against Hamide and Shehadeh under Section 241(a)(6)(F)(iii) of the McCarran-Wal-ter Act (“Section (F)(iii)”) while the Other Six were charged with non-ideological immigration violations under 8 U.S.C. §§ 1251(a)(2) and 1251(a)(9).
This Court first heard challenges to the deportation proceedings and the constitutionality of the McCarran-Walter provisions in April of 1987. In our May 21,1987 and June 3, 1987 Orders, we held that the matter was not ripe for decision because Hamide and Shehadeh had not exhausted their administrative remedies with the INS and because a direct review of the statute was available through mandamus to the Ninth Circuit Court of Appeals. The Court of Appeals in its February 24, 1988 Order agreed that the case was not justiciable and refused to review the statute because Hamide and Shehadeh had not exhausted their administrative remedies.
In 1987, after we first held hearings in this matter, Congress passed the FRAA which provided in Section 901(a),
inter
After the Ninth Circuit’s decision, Ham-ide, Shehadeh, the Other Six, and the Organizational Plaintiffs again asked this Court to review the constitutionality of the McCarran-Walter provisions and Section 901(a) and Section 901(b) of the FRAA. We first address their standing to make these challenges.
DISCUSSION
I. STANDING
A.Standing of Hamide and Shehadeh
In its May 21,1987 and June 3,1987 Orders, this Court dismissed Hamide and Shehadeh’s claim on the basis that they could seek interlocutory review of their claim by the Ninth Circuit under the All Writs Act, 28 U.S.C. § 1651. In its February 24, 1988 Order, the Ninth Circuit denied Hamide and Shehadeh’s petition for a writ of mandamus. Hamide v. United States District Court, No. 87-7249 (9th Cir. Feb. 24, 1988). The Court of Appeals expressly declined to consider the constitutional issue posed by the petition, stating that the petitioners had not exhausted their administrative remedies. In addition, the Court of Appeals ruled that this Court lacked jurisdiction to hear Hamide and She-hadeh’s constitutional challenge to Section (F)(iii).
Since Hamide and Shehadeh have still not exhausted their administrative remedies and the Ninth Circuit retains exclusive jurisdiction under 8 U.S.C. § 1105a to review their final deportation order, this Court lacks jurisdiction to hear their claim. Acting pursuant to the Ninth Circuit’s Order, this Court denies standing to Hamide and Shehadeh to challenge the McCarran-Walter provisions or Section 901 of the FRAA.
B.Standing of the Other Six
Under Article III of the United States Constitution and the express terms of the Federal Declaratory Judgment Act, 28 U.S. C.§ 2201, federal courts may hear legal claims only if they arise from an “actual controversy.”
5
A case or controversy requires a plaintiff to have a personal stake in the outcome sufficient to assure an adversarial presentation of the case.
See Baker v. Carr,
For a plaintiff to have standing under Article III and the Declaratory Judgment Act, he or she must, “at an irreducible minimum,” claim that he or she has “suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant.”
Valley Forge Christian College v. Americans United for Separation of Church & State, Inc.,
In defining what constitutes a “real and immediate” threat, courts have contrasted this type of threat to one that is merely “conjectural or hypothetical,”
Lyons,
The Government contends that “ ‘immediate’ means ‘now’ ”; in other words, the threat’s immediacy must be exceptionally great and a plaintiff must be facing imminent charges and an almost certain conviction. Gov’t Memo, of Nov. 9, 1988, at 1-4. Plaintiffs argue that “immediate” refers to the chilling effect on a plaintiff’s First Amendment rights that occurs whenever a plaintiff faces a real threat of prosecution. Plaintiff Supp. Memo, of Nov. 14, 1988, at 2-3. The question thus framed is whether Plaintiffs must face a threat of an “immediate prosecution” or whether they satisfy the “immediate” requirement by alleging an “immediate chill” from a threat of a credible, potential prosecution.
We believe that the terms “immediate prosecution” and “immediate chill” are inextricably intertwined. In any given situation, the more “immediate” the threat of prosecution, the more “immediate” the chill.
See Polykoff v. Collins,
The Government avers that none of the Other Six faces a real and immediate threat of prosecution under the McCarran-Walter provisions and Section 901(b) of the FRAA and that they should therefore be denied standing. Specifically, the Government maintains that in the past thirty-six years, the McCarran-Walter provisions have rarely been invoked. It is too specu
In order to estimate whether a party faces a real and immediate threat of prosecution and chill of his or her First Amendment rights, courts have examined the government’s interest in enforcing the challenged statute, along with its past enforcement patterns, and the party’s interest in engaging in the prohibited activity.
See Hardwick,
The Government in this case has demonstrated that it has an interest in excluding and deporting PFLP members generally and enforcing the McCarran-Walter provisions against alleged PFLP members and the Other Six specifically. Over the last two and a half years, the Government has engaged in exclusion and deportation actions against aliens who it alleged were PFLP members. For instance, in May 1986 the Government excluded and deported Su-liemann Shehadeh under Sections 212(a)(27) and 212(a)(29) of the Immigration and Nationality Act because of his affiliation with the PFLP. Decision of Immigration Judge, File No. 838-399-412 (May 22, 1986). The Government has further initiated summary exclusion proceedings in December 1987 under 8 U.S.C. § 1225(c) against Fouad Rafeedie, a permanent resident alien, because of his PFLP affiliation. Notice of Initiation of Summary Exclusion under Section 235(c), File No. 34-679-905 (December 31, 1987); see
Rafeedie v. INS,
The Government's desire to utilize the McCarran-Walter provisions against PFLP members is manifested in its current attempt to deport Hamide and Shehadeh for violating Section (F)(iii) by being members of or affiliating with an organization that advocates or teaches the unlawful damage, injury or destruction of property. In particular, the Government has based these charges on Hamide and Shehadeh’s alleged membership or affiliation with the PFLP. In re Shehadeh, File No. A30-660-528 (April 28, 1987) (Substituted Charges of Deportability); In re Hamide, File No. A19-262-560 (April 28, 1987) (Substituted Charges of Deportability).
While the Other Six need not allege a specific threat of prosecution against them individually to have standing,
Hardwick,
As for the Other Six, we must assess their interest in engaging in the type of First Amendment actions deemed deporta-ble under the McCarran-Walter provisions. The Other Six allege that but for the McCarran-Walter provisions and Section 901(b) of the FRAA, they would engage in the expressive activities that led the INS to charge them under the McCarran-Walter provisions in 1987.
See
Mungai Supp. Declaration ¶ 6; Amer Declaration Í14; Amjad Obeid Declaration Till 4-5; Barakat Declaration ¶¶14-5. These activities include reading and distributing magazines published by the PFLP, supporting or discussing the PFLP or its views in public meetings and demonstrations, and raising money to support these activities.
See
Second Amended Complaint ¶ 22. While a plaintiff hoping to challenge a statute might tend to exaggerate his or her intention to participate in the proscribed actions, we believe that the Other Six do not allege their desire to pursue the First Amendment activities prohibited by the McCarran-Walter provisions merely as a ruse to obtain standing. On the contrary, after reading the submitted declarations, we find that the Other Six demonstrate an authentic interest in participating in the prohibited First Amendment activities as part of their normal course of activity.
See Hardwick,
After examining the parties’ interests, we conclude that the Government has demonstrated a strong interest in prosecuting PFLP members under the immigration laws generally and the Other Six and other PFLP members under the McCarran-Wal-ter provisions in particular. The Other Six have evinced a genuine interest in engaging in the proscribed conduct. Under these circumstances, the Other Six confront a sufficiently real and immediate threat of prosecution under the McCarran-Walter provisions to establish their standing to challenge these provisions.
In addition to the interest analysis conducted above, relevant case law supports the Other Six’s standing. In
Hardwick, supra,
the State arrested and charged plaintiff Hardwick, a practicing homosexual, with violating Georgia’s sodomy statute, only to subsequently drop these charges. The
Hardwick
Court found that though the State had dropped the charges, the State had not declared that it would not prosecute Hardwick in the future under the challenged law. Viewing the evidence of past prosecution as raising a strong inference that future prosecutions were likely, the Court concluded that Hardwick had standing to contest Georgia’s sodomy statute.
Hardwick,
Distinguishing Hardwick from this case, the Government argues that Hardwick did not face any alternate sodomy charges other than those under the challenged sodomy law. The inference was strong in that case that future prosecutions under the challenged sodomy law would be likely because no other sodomy law existed under which Hardwick could have been prosecuted. Here, the Other Six currently face routine status deportation charges, making future prosecutions under the McCarran-Walter provisions too remote and unlikely.
In
Hardwick,
however, the Court granted Hardwick standing even though he did not allege other specific instances of prosecution of similarly situated homosexuals under the challenged sodomy law. To that extent, the Other Six present a more real and immediate threat of prosecution, relying not just on their previous prosecution but also on the current prosecutions against Hamide and Shehadeh.
See Steffel v. Thompson,
Furthermore, the Government, like the State in
Hardwick,
has not disavowed its intent to enforce the challenged provisions.
See Hardwick,
Where plaintiffs genuinely allege that but for the challenged statute, they would engage in the proscribed First Amendment activities, courts have granted them standing even when the statute has never been enforced or has never been enforced against them. In the first category where a statute has never been enforced against anyone, the Supreme Court has recognized a plaintiff’s standing to contest the statute.
See Virginia v. American Booksellers Ass’n, Inc.,
Particularly with pre-enforcement First Amendment challenges, courts have found standing based, in part, on their sensitivity to the danger of “self-censorship[,] a harm that can be realized even without an actual prosecution.”
American Booksellers,
The Other Six have demonstrated that the Government has used the McCarran-Walter provisions to quell their First Amendment activities in the past, is currently prosecuting other alleged PFLP members under these provisions, and has not disavowed its intent to prosecute the Other Six in the future. As such, they present a stronger case for standing than did the plaintiffs in American Booksellers, Lakewood, Epperson, and San Francisco Democratic Central Committee where the statute at issue had never been enforced. The standing of the Other Six is also more compelling than the plaintiffs’ standing in Babbitt, Steffel, Doe, Polykoff, and Sable where the plaintiffs had never been prosecuted under the challenged statute.
We agree with the Government that were the Other Six only to allege a “subjective chill” based on the mere existence of the McCarran-Walter provisions and Section 901(b) of the FRAA without anything more concrete, they would not be entitled to standing.
See Laird v. Tatum,
Moreover, while both the
Laird
and
United Presbyterian Church
courts denied standing, they acknowledged that standing would exist where “the challenged exercise of governmental power was regulatory, proscriptive, or compulsory in nature, and the complainant was either presently or prospectively subject to the regulations, proscriptions, or compulsions that he was challenging.”
Laird,
In the case at bar, as in
Sable,
the Government considers the McCarran-Wal-ter provisions and Section 901(b) of the FRAA to be applicable to the Other Six
8
and has specifically refused to state that it will not bring such charges against them. The penalty for the statute’s violation — deportation — is substantial, and the Government is proceeding against two other alleged PFLP members under the statute. As in
Sable,
the challenged provisions are compulsory as well as proscriptive in nature. As aliens, the group directly targeted by the statute, the Other Six are presently subject to the statute’s requirements.
See Doe v. Bolton,
Under the above analysis, we conclude that each member of the Other Six faces a “real and immediate” threat of prosecution under the McCarran-Walter provisions and Section 901 of the FRAA. They therefore present an objectively-based and “immedi
C. Organizational Plaintiffs
In
New York State Club Ass’n v. City of New York,
— U.S. -,
The Court holds that the ADC has met the three-part
Hunt
test for associational standing. Under the first prong of the test, an organization must allege “that its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit....”
Hunt,
The ADC represents both immigrant and nonimmigrant aliens who would support the PFLP and hold PFLP views but for the real threat that the INS would institute deportation proceedings against them under the McCarran-Walter provisions. Mok-hiber Fifth Declaration ¶ 2 (Mokhiber is currently the Director of the Legal Services Department of the ADC). After reading the submitted declarations, we view these ADC members’ desire to engage in the proscribed activities as genuine. Moreover, the Government demonstrates a continuing interest in enforcing the McCarran-Walter provisions against these members. This interest is evidenced by the Government’s past prosecutions against alleged PFLP members (Suliemann Shihadeh and Fouad Rafeedie), its past prosecution of the Other Six as alleged PFLP members under the McCarran-Walter provisions, its current enforcement of one of the McCarran-Walter provisions against Hamide and She-hadeh for their alleged PFLP membership, and its refusal to disavow its intent to enforce these provisions in the future.
Compare Hardwick,
Under the second prong of the
Hunt
test, the interest the organization seeks to protect must be germane to the organization’s purpose. The Government avers that the ADC merely has an “abstract and unconnected concern” with respect to the McCarran-Walter provisions since its purpose is not to violate these provisions. Gov’t Memo, of Sept. 2, 1988, at 16. While the ADC does not define its purpose in terms of violating deportation laws, it does state its purpose to be the defense of the rights and promotion of the heritage of Arab-Americans through legal action in
Under the third prong, we find that the claims for declaratory and injunctive relief asserted by the ADC do not require the participation of the individual members in the lawsuit. In a facial challenge such as this, “there is complete identity between the interest of the [ADC] and those of its member[s] ... with respect to the issues raised in this suit, and the necessary proof [can] be presented ‘in a group context.’ ”
New York State Club,
In addition, because the ADC represents immigrant aliens as well as nonimmigrant aliens, the ADC presents a sufficiently different claim than the Other Six to warrant its standing. In contrast to the nurse, clergy, social worker and corporation-appellants in
Doe v. Bolton,
D. Prudential Considerations
Notwithstanding the Other Six’s and the ADC’s standing under Article III, the Government submits that the Court should refrain from determining the constitutionality of the McCarran-Walter provisions and Section 901 of the FRAA for prudential considerations. First, the Government asserts that the Ninth Circuit has exclusive jurisdiction to review final orders of deportation under 8 USC § 1105a. Second, the Ninth Circuit has already stated in Hamide v. United States District Court, supra, that it will not rule on the constitutionality of Section (F)(iii), under which Hamide and Shehadeh are being prosecuted, because they have not exhausted their administrative remedies. Third, by ruling on the Other Six’s and the ADC’s constitutional attacks on the McCarran-Walter provisions, this Court would be thwarting Congress’s intent to place exclusive jurisdiction in the Ninth Circuit and to have no court review the deportation proceedings until a factual record has been developed at the deportation hearing. Fourth, if this Court proceeded to adjudicate their claims, it would create parallel tracks of litigation between itself and the Ninth Circuit, inefficiently use judicial resources, and create the possibility of conflicting decisions. Fifth, it would be anomalous to allow the Other Six or the ADC to challenge the statutes at issue when the only parties currently charged under those statutes, Hamide and Shehadeh, have been foreclosed from mounting such a challenge before this Court. See Gov’t Memo, of Sept. 2, 1988, at 4-7, 17-20.
While the Court in its May 21, 1987 and June 3, 1987 Orders dismissed Hamide and Shehadeh’s claims and stayed the Other Six’s and the ADC’s claims for prudential considerations, such considerations are no longer applicable. In our previous Orders, we specifically relied on Hamide and She-hadeh’s ability to seek a preemptory writ of mandamus from the Ninth Circuit to rule on the constitutionality of Section (F)(iii). The Ninth Circuit sanctioned such a procedure in
Public Utility Commissioner of
The Government contends that
Bonneville Power
is dispositive on the prudential considerations now before the Court. It argues that “ ‘where a statute commits review of final agency action to the court of appeals [even in the absence of an express statutory command of exclusiveness],
any suit
seeking relief that might affect the court’s future jurisdiction is subject to its exclusive review,’ ” and a district court’s jurisdiction under the general federal question statute (28 U.S.C. § 1381) is preempted. Gov’t Memo, of Sept. 2, 1987, at 18-19 (emphasis in Gov’t Memo.) (quoting
Bonneville Power,
In the case at bar, the Other Six and the ADC are not engaged in any ongoing proceedings that would allow them to challenge the McCarran-Walter provisions or Section 901 of the FRAA; the Other Six’s deportation proceedings are only for routine status violations. Thus, unlike Ham-ide and Shehadeh, the Other Six and the ADC do not have any administrative remedies to exhaust with respect to the McCar-ran-Walter provisions and Section 901 of the FRAA. They are not involved in any ongoing proceedings under the statutes at issue as were the plaintiffs in Bonneville Power, Telecommunications Research & Action Center, and Air Line Pilots and consequently do not have to forsake district court adjudication of their claims.
Contrary to the Government’s argument, the fact that Hamide and Shehadeh are involved in ongoing deportation proceedings under Section (F)(iii) and can only seek review through the Ninth Circuit does not preclude a district court from granting the Other Six and the ADC pre-enforcement standing to challenge the McCarran-Wal-ter provisions. Courts have not abstained from hearing a plaintiff’s suit because another plaintiff’s action was pending in another forum.
See, e.g., Steffel,
In an analogous case,
Sable Communications of California, supra,
the Ninth Circuit ruled that the district court erred when it abstained from analyzing the federal obscene telephone call statute, 47 U.S.C. § 223(b), even though the court of appeals had exclusive jurisdiction under 28 U.S.C. § 2342 to review the FCC’s regulations made in accordance with the statute.
Facing a real and immediate threat of deportation, but not an actual deportation, under the McCarran-Walter provisions and Section 901(b) of the FRAA, the Other Six and the ADC cannot bring their constitutional arguments before the Ninth Circuit. If this Court refused to rule on their claims, they would have no forum in which to challenge the constitutionality of these statutes. Because the threat of prosecution can be as effective as an actual prosecution,
see Dombrowski v. Pfister,
[A] refusal on the part of the federal courts to intervene when no state proceeding is pending may place the hapless plaintiff between the Scylla of intentionally flouting [the] law and the Charybdis of foregoing what he believes to be constitutionally protected activity in order to avoid becoming enmeshed in a criminal proceeding.
II. MERITS
A. Aliens ’ First Amendment Rights in the Deportation Context
Before turning to the statutes at issue, we must address the Government’s argument that aliens do not enjoy First Amendment rights in the deportation context. It has long been settled that aliens within the United States enjoy the protections of the First Amendment of the United States Constitution.
Kwong Hai Chew v. Colding,
Recently, the Ninth Circuit in
Verdugo-Urquidez
relied on Justice Murphy’s concurrence in
Bridges v. Wixon
and concluded that “aliens within the United States enjoy the benefits of the
first,
fifth, sixth and fourteenth amendments.”
The Government concedes that aliens have First Amendment rights. Reporter’s Transcript of April 27, 1987, at 10, lines 1-3. However, the Government argues that these First Amendment rights are drastically limited in the deportation context due to Congress’ plenary power over immigration. To support this proposition, the Government relies on a long line of Supreme Court decisions beginning with a nineteenth century Chinese exclusion case,
Fong Yue Ting v. United States,
1. The Constitutional Limits of Congress’ Plenary Authority in the Immigration Arena
At first glance, the Government’s authorities indicate that Congress has virtually absolute and unchecked power over immigration matters. In
Fong Yue Ting,
Upon more careful reading, however, one can distill from these decisions the Supreme Court’s recognition of the constitutional limitations to Congress’ plenary immigration authority. The
Fong Yue Ting
Court elaborated that immigration power must be exercised “consistently] with the Constitution” and the judiciary must intervene where “required by the paramount law of the Constitution.”
2. Government’s Cases Not Involving First Amendment Challenges in the Deportation Setting
With the exception of Harisiades, the Government has not presented any case dealing squarely with an alien’s First Amendment rights in the deportation context. Most of the cases involved Fifth Amendment due process challenges. See Fong Yue Ting, supra (Fifth Amendment due process challenge to an immigration law requiring deportation of Chinese laborers without certificates of residence); Gal-van, supra (Fifth Amendment due process challenge to the Internal Security Act of 1950 providing for deportation of Communist Party members); Mathews, supra (Fifth Amendment due process attack on Social Security Act provisions granting eligibility for benefits to aliens under 65 years of age only if they have been admitted for permanent residence and have resided in the United States for five years); Fiallo, supra (Fifth Amendment due process challenge to Sections 101(b)(1), (b)(2) of the Immigration and Nationality Act denying preferential immigration status to illegitimate children and to fathers of illegitimate children); see also Carlson, supra (Fifth and Eighth Amendment challenge to provisions of the Internal Security Act of 1950 under which Communist Party members could be held in custody without bail).
In addition, several of the Government’s “plenary power” cases centered on Congress’ power to exclude aliens from our country’s shores rather than its power to deport aliens lawfully residing in the country. Congress’ power differs in the exclusion and deportation contexts. In the former, the government’s decision to exclude an alien is all but conclusive on the courts, while in the latter an alien can look to the courts as a check on the government’s power. The Supreme Court in
Kwong Hai Chew, supra,
elaborated on this distinction. Quoting Justice Murphy’s concurrence in
Bridges v. Wixon,
Four of the Government’s cases fall into the exclusion category. First, in
Turner, supra,
an alien excluded for being an anarchist challenged his exclusion on the ground that it violated the First Amendment. The Supreme Court denied his challenge, commenting that “those who are
excluded
cannot assert rights in general obtaining in a land to which they do not belong....” 194 U.S. at292,
In all four cases above, the focus of the Supreme Court’s inquiry was on the existence, or more appropriately, the nonexistence of alien’s rights in the face of Congress’ power to exclude. None addressed the issue before the Court today: the First Amendment rights of aliens in the deportation setting.
3. Harisiades v. Shaughnessy
Decided in 1952, Harisiades v. Shaughnessy, su-pra, involved an attack on the provision in the Alien Registration Act of 1940 that authorized deportation of aliens based on their past Communist Party memberships. The aliens assailed this provision on three grounds: the Fifth Amendment Due Process Clause, the First Amendment freedom of speech and assembly, and the prohibition of passing an ex post facto law under Article I, § 9, clause 3 of the Constitution.
The Supreme Court rejected the aliens’ Fifth Amendment substantive due process arguments that permanent residence confers a “vested right” on the alien, equal to that of a citizen, to remain within the country and that the Alien Registration Act provision is unreasonably harsh. As it had done in previous cases, the Court deferred to the political branches in this area: “[Policies toward aliens] are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.”
In addressing the aliens’ First Amendment argument, the
Harisiades
Court dealt directly with the question of whether aliens have First Amendment rights in deportation matters. The Government, as in this case, urged the Court to find that the First Amendment does not apply “to the political decision of Congress to expel a class of aliens whom it deems undesirable residents.”
4. Harisiades and the First Amendment
In
Harisiades,
the Supreme Court refused to recognize an alien-citizen distinction among speech and speakers in this country. This result accords with the “profound national commitment” reflected by the First Amendment that “debate on public issues [be] uninhibited, robust, and wide-open, and that it [include] vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.”
New York Times Co. v. Sullivan,
The First Amendment serves our national interests not only by preserving individual rights to speech but by ensuring that all speech from whatever source is protected. The maintenance of the “uninhibited marketplace of ideas,” crucial for our democracy’s prosperity,
see Red Lion Broadcasting Co. v. FCC,
If corporate speech is protected for its contribution to vigorous public debate, then the speech of aliens must receive similar protection. For it defies reason and undermines the values underlying the First Amendment that a magazine article advocating doctrines of world communism or the unlawful damage, injury or destruction of property by the PFLP would be fully protected if published by a corporation or a citizen, but if authored or distributed by an alien could render the alien subject to the sanction of deportation.
5. No Different Bill of Rights for Aliens in the Deportation Setting
In the Government’s view, a fundamentally “different” Bill of Rights applies to aliens seeking to avoid expulsion from the United States. The Government would have this Court rule that “in the limited context of deportation, the guarantees of the Bill of Rights are constitutionally irrelevant to the question of which non-citizens shall be permitted to remain within our borders.” Gov’t Supp. Memo, of May 19, 1987, at 27. To buttress this view, the Government cites a litany of decisions in which courts have limited aliens’ constitutional rights in the deportation setting. 13 From these cases the Government would have us conclude that while aliens have First Amendment rights generally, within the deportation forum these rights are “irrelevant” and can be severely circumscribed. We find that none of the Government’s cases supports this broad and far-reaching proposition.
In determining that a particular constitutional provision did not apply in the deportation context, the courts did not rely on a “different” Bill of Rights for aliens; nor did they base their decisions on the Government’s plenary immigration power. Rather, each decision was based upon the court’s examination of the precedent interpreting the particular constitutional right at issue and upon its conclusion that the particular right had no application in the deportation setting. The results would be the same in analogous situations outside the immigration arena.
Many of the cases dismissed constitutional challenges on the ground that the right asserted was available only in
criminal
proceedings. Since deportation has always been held to be a civil proceeding,
see Lo
In other cases, the courts dismissed the constitutional challenge because deportation has never been held to constitute punishment.
16
See Bugajewitz v. Adams,
In the final group of decisions, although the courts did not reach their conclusions based upon the civil, non-punitive nature of a deportation proceeding, they nevertheless employed the same analysis that would apply were a citizen making a similar constitutional challenge. For instance, in holding that an illegal arrest has no bearing on a subsequent deportation proceeding, the
Lopez-Mendoza
Court noted that “[t]he ‘body’ or identity of a defendant or respondent in a criminal or civil proceeding is
never
itself suppressible as a fruit of an unlawful arrest, even if it is conceded that an unlawful arrest, search, or interrogation occurred.”
In Harisiades, the Supreme Court applied to aliens the same First Amendment test then applicable to citizens. The decisions cited by the Government and discussed above follow the Harisiades approach. Rather than supporting a “different” Bill of Rights for aliens in the deportation setting, these cases merely employed the same methods of constitutional adjudication available to citizens and concluded that the particular rights at issue had no application in the deportation area.
6. No Lower First Amendment Standard for Aliens in the Deportation Setting
Notwithstanding
Harisiades,
the Government urges us to adopt a lower First Amendment standard for aliens in the deportation arena. In support of this argument, the Government cites several decisions in which the Supreme Court has applied lower First Amendment scrutiny in limited contexts. For example, a prisoner retains only those First Amendment rights that are not “inconsistent with his status as a prisoner or with the legitimate peno-logical objectives of the corrections system.”
Pell v. Procunier,
The Government argues from these decisions that “if school children and military personnel [and prisoners] may be restricted in the exercise of their First Amendment rights, it is hardly surprising that Congress can specify a ground for deportation which touches First Amendment concerns.” Gov’t Supp. Memo, of May 19, 1987, at 41. We disagree. In each of the above areas— prisons, schools, and the military — the Supreme Court adopted a lower First Amendment standard because of the significant governmental interest asserted. This lower standard of review applies, however, only when a plaintiff is present in the settings at issue. Thus, the prison standard applies only to inmates under prison authority; the school standard applies only while children are in school; and the military standard applies only to servicemen during their time in the military.
In none of these decisions does the lesser degree of First Amendment protection have any effect on the individual’s constitutional rights outside the limited environment. The warden cannot prevent a prisoner from having an interview with the media once she has served her time; the school principal cannot punish students for using profanity during their summer vacations; and the military cannot court martial a doctor for speaking out against U.S. foreign policy once his military commitment is over.
By contrast, it is impossible to adopt for aliens a lower degree of First Amendment protection solely in the deportation setting without seriously affecting their First Amendment rights outside that setting.
Simply stated, the Government’s view is that aliens are free to say whatever they wish but the Government maintains the ability to deport them for the content of their speech. To state the proposition is to reject it. As Justice Murphy wrote over forty years ago:
Any other conclusion would make our constitutional safeguards transitory and discriminatory in nature. Thus the Government would be precluded from enjoining or imprisoning an alien for exercising his freedom of speech. But the Government at the same time would be free, from a constitutional standpoint, to deport him for exercising that very same freedom. The alien would be fully clothed with his constitutional rights when defending himself in a court of law, but he would be stripped of those rights when deportation officials encircle him.
Bridges v. Wixon,
B. Plaintiffs’ First Amendment Challenge to the McCarran-Walter Provisions
Plaintiffs challenge the McCarran-Walter provisions as being substantially overbroad in violation of the First Amendment. Having concluded that aliens have the same First Amendment rights as citizens, and that these rights are not limited in the deportation context, we now address that challenge.
The Supreme Court recently considered the overbreadth doctrine in
City of Houston v. Hill,
The elements of First Amendment over-breadth analysis are familiar. Only a statute that is substantially overbroad may be invalidated on its face. New York v. Ferber,458 U.S. 747 , 769 [102 S.Ct. 3348 , 3361,73 L.Ed.2d 1113 ] (1982); Broadrick v. Oklahoma, [413 U.S. 601 , 615,93 S.Ct. 2908 , 2917,37 L.Ed.2d 830 (1973)]. “We have never held that a statute should be held invalid on its face merely because it is possible to conceive of a single impermissible applica-tion_” id. at 630 [93 S.Ct. at 2925 ] (BRENNAN, J., dissenting). Instead, “[i]n a facial challenge to the over-breadth and vagueness of a law, a court’s first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct.” Hoffman Estates v. The Flipside, Hoffman Estates, Inc.,455 U.S. 489 , 494 [102 S.Ct. 1186 , 1191,71 L.Ed.2d 362 ] (1982); Kolender v. Lawson,461 U.S. 352 , 359 n. 8 [103 S.Ct. 1855 , 360 n. 8,75 L.Ed.2d 903 ] (1983).
Under
Hill,
we examine whether the McCarran-Walter provisions reach a “substantial amount of constitutionally protected conduct,” by failing to make a distinction between lawful behavior and the more narrow scope of impermissible conduct not protected by the Constitution. In
Yates v. United States,
Over a decade later in
Brandenburg v. Ohio,
Like the Supreme Court in
Harisiades,
we review the deportation statute employing the prevailing First Amendment standard. Under this standard, the
Brandenburg
test, the McCarran-Walter provisions are substantially overbroad. Section 241(a)(6)(G)(v) (“Section (G)(v)”) allows for the deportation of aliens who write, publish, or knowingly circulate, distribute, print, display, or possess any material advocating or teaching opposition to all organized government, the economic, international, and governmental doctrines of world communism, or the establishment in the United States of a totalitarian dictatorship. Section 241(a)(6)(H) (“Section (H)”) allows for the deportation of aliens who are members of or affiliated with any organization that engages in the proscribed activities in Section (G). These provisions proscribe almost exclusively activity protected by the First Amendment. Simply writing, publishing circulating, distributing, printing, displaying, and possessing material advocating or teaching the prohibited ideologies cannot be equated with advocacy of imminent unlawful action. As stated in
Noto v. United States,
The other McCarran-Walter provisions are even more substantially overbroad than Sections (G)(v) and (H). Section 241(a)(6)(D) (“Section (D)”) allows for the deportation of aliens who “advocate the economic, international, and governmental doctrines of world communism or the establishment in the United States of a totalitarian dictatorship, or who are members of or affiliated with any organization” that so advocates, “either through its own utterances or through any written or printed publications issued or published by or with the permission or consent of or under the authority of such organization_” Sec
While Sections (G)(v) and (H) deal with advocacy and affiliation through the printed medium, Sections (D) and (F)(iii) proscribe advocacy and affiliation more generally. Like Sections (G)(v) and (H), though, Sections (D) and (F)(iii) do not differentiate between constitutionally permissible and impermissible activities. These provisions could as easily be applied to prohibit an alien from wearing a PFLP button, attending a PFLP lecture, distributing a PFLP newspaper, or teaching a PFLP viewpoint as they could be employed to prevent advocacy of imminent lawless action.
It takes no searching inquiry to conclude that, judged according to the prevailing Brandenburg test, the challenged provisions cannot pass constitutional muster. Accordingly, we hold that the McCarran-Walter provisions are substantially over-broad and violate the First Amendment. 19
CONCLUSION
In sum, we hold that aliens who are legally within the United States are protected by the First Amendment and that their First Amendment rights are not limited by the Government’s plenary immigration power. Applying established First Amendment principles, we further hold that the McCar-ran-Walter provisions are substantially overbroad in contravention of the First Amendment.
IT IS SO ORDERED.
Notes
. 8 U.S.C. § 1251(a)(6) provides in pertinent part:
(a) General classes
Any alien in the United States (including an alien crewman) shall, upon the order of the Attorney General, be deported who—
(6) is or at any time has been after entry, a member of any of the following classes of aliens:
(D) Aliens not within any of the other provisions of this paragraph who advocate the economic, international, and governmental doctrines of world communism or the establishment in the United States of a totalitarian dictatorship, or who are members of or affiliated with any organization that advocates the economic, international, and governmental doctrines of world communism or the establishment in the United States of a totalitarian dictatorship, either through its own utterances or through any written or printed publications issued or published by or with the permission or consent of or under the authority of such organization or paid for by the funds of, or funds furnished by, such organization;
(F) Aliens who advocate or teach or who are members of or affiliated with any organization that advocates or teaches ... (iii) the unlawful damage, injury, or destruction of property; ...
(G) Aliens who write or publish, or cause to be written or published, or who knowingly circulate, distribute, print, or display, or knowingly cause to be circulated, distributed, printed, published, or displayed, or who knowingly have in their possession for the purpose of circulation, publication, distribution, or display, any written or printed matter, advocating or teaching opposition to all organized government, or advocating or teaching ... (v) the economic, international, and governmental doctrines of world communism or the establishment in the United States of a totalitarian dictatorship;
(H) Aliens who are members of or affiliated with any organization that writes, circulates, distributes, prints, publishes, or displays, or causes to be written, circulated, distributed, printed, published, or displayed, or that has in its possession for the purpose of circulation, distribution, publication, issue, or display any written or printed matter of the character described in paragraph (G) of this subdivision.
. The amended version of Section 901 provides in pertinent part:
Sec. 901. PROHIBITION ON EXCLUSION OR DEPORTATION OF ALIENS ON CERTAIN GROUNDS
(a) IN GENERAL. — Notwithstanding any other provision of law, no nonimmigrant alien may be denied a visa or excluded from admission into the United States, or subject to deportation because of any past, current or expected beliefs, statements or associations which, if engaged in by a United States citizen in the United States, would be protected under the Constitution of the United States.
(b) CONSTRUCTION REGARDING EXCLUDABLE ALIENS. — Nothing in this shall be construed as affecting the existing authority of the executive branch to deport, to deny issuance of a visa to, to deny adjustment of status of, or to deny admission to the United States of, any alien—
(I) for reasons of foreign policy or national security, except that such deportation or denial may not be based on past, current, or expected beliefs, statements, or associations which, if engaged in by a United States citizen in the United States, would be protected under the Constitution of the United States, unless such alien is seeking issuance of a visa, adjustment of status, or admission to the United States as an immigrant;
(2) who a consular official or the Attorney General knows or has reasonable ground to believe has engaged, in an individual capacity or as a member of an organization, in a terrorist activity or is likely to engage after entry in a terrorist activity; or
(3) who seeks to enter in an official capacity as a representative of a purported labor organization in a country where such organizations are in fact instruments of a totalitarian state.
In addition, nothing in subsection (a) shall be construed as applying to an alien who is described in section 212(a)(33) of the Immigration and Nationality Act (relating to those who assisted in the Nazi persecutions), to an alien described in the last sentence of section 101(a)(42) of such Act (relating to those assisting in other persecutions) who is seeking the benefits of section 207,208, 243(h)(1), or 245A of such Act (relating to admission as a refugee, asylum, withholding of deportation, and legalization), or to an alien who is described in section 21(c) of the State Department Basic Authorities Act of 1956 [members of the Palestine Liberation Organization ("PLO”)]. In paragraph (2), the term "terrorist activity” means the organizing, abetting, or participating in a wanton or indiscriminate act of violence with extreme indifference to the risk of causing death or serious bodily harm to individuals not taking part in armed hostilities.
. We will refer to this Section 901(b) exception for PLO members as the “PLO Exception.”
. Under 8 U.S.C. § 1101(a)(15), all aliens are presumed to be immigrant aliens unless they fall within one of the specifically enumerated classes of nonimmigrant aliens. For example, among the Other Six, Naim Nadim Sharif and Aiad Khaled Barakat were admitted under 8 U.S.C. § 1101(a)(15)(B) as temporary visitors; Julie Nuangugi Mungai was admitted under 8 U.S.C. § 1101(a)(15)(H)(i) as a temporary worker; and Amjad Mustafa Obeid, Ayman Mustafa Obeid, and Bashar Amer were admitted under 8 U.S.C. § 1101(a)(15)(F) as students.
.28 U.S.C. § 2201(a) provides:
In a case of actual controversy within its jurisdiction, ... any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.
. Bashar Amer, Aiad Khaled Barakat, Julie Nuangugi Mungai, Naim Nadim Sharif, Amjad Mustafa Obeid, and Ayman Mustafa Obeid have been served with Orders to Show Cause that include a charge under 8 U.S.C. § 1251(a)(2) that each “overstayed” his or her visa term. Bashar Amer’s Order to Show Cause additionally charged him with failing to maintain student status under 8 U.S.C. § 1251(a)(9).
. The
San Francisco Democratic Central Committee
Court further noted that “the aftermath of
Poe
teaches that federal courts should not lightly determine that a statute has fallen into desuetude."
. Since the Government has expressly stated at oral argument and in its briefs, see e.g., Gov’t Memo, of Sept. 2, 1988, at 29-31, that it considers the PLO Exception to apply to PFLP members, we do not reach the issue of whether the PLO Exception encompasses solely PLO members or affiliate groups’ members as well. The fact that the Government treats PFLP members as within Section 901(b)’s exception to Section 901(a)’s constitutional protections heightens the reality and immediacy of the threat of prosecution faced by alleged PFLP members, like the Other Six, under the McCarran-Walter provisions.
. We find that the other Organizational Plaintiffs — Arab-American Democratic Federation, Association of Arab American University Graduates, Irish National Caucus, Palestine Human Rights Campaign, American Friends Service Committee, League of United Latin American Citizens, Michel Bogopolsky, Darrel Meyers, and Southern California Interfaith Task Force on Central America — have not presented sufficient evidence to meet the three prongs of the Hunt test and consequently deny them standing.
. As counsel for the Government represented at the October 24, 1988 hearing, it could easily take four years before Hamide and Shehadeh have their cases reviewed by a federal court. Reporter’s Transcript of October 24, 1988, at 29, lines 11-13. Even then their cases could be resolved in any number of ways without addressing the constitutional claims that the Other Six and the ADC seek to raise here. During this lengthy period of time, the chill on the First Amendment rights of the Other Six and the ADC members would be such that abstention is inappropriate.
. The
Verdugo-Urquidez
Court found support for this conclusion in the Supreme Court’s decision in
Plyler v. Doe,
. The Government’s attempt to distinguish
Harisiades
is unpersuasive. It merely posits that the Court’s ruling was not clear on its face and that it only utilized the test applicable to the Communist Party rather than the prevailing First Amendment test. In light of the Government’s brief in
Harisiades
urging the Court not to apply First Amendment principles in the deportation context, the Court’s recognition of its duty to distinguish between mere advocacy and speech that incites violence, and the Court’s citation to
Dermis v. United States,
we must conclude that the Court found aliens in the deportation setting to have the same First Amendment rights as citizens. While several commentators have queried whether the Supreme Court correctly applied the
Dennis
test in
Harisiades, see
Legomsky,
Immigration and the Judiciary: Law and Politics in Britain and America
202-05 (1987); Hesse,
The Constitutional Status of the Lawfully Admitted Permanent Resident Alien: The Inherent Limits of the Power to
.
INS v. Lopez-Mendoza,
.
See Bilokumsky,
.
See e.g., Roach v. N.T.S.B.,
.
Chabolla-Delgado,
.
See e.g., Ingraham v. Wright,
. We do not dispute the Government's interests in preserving national security and promoting foreign policy in the exercise of its immigration power. These interests are adequately protected, however, by the prevailing First Amendment standard allowing for the deportation of individuals who advocate imminent lawless action and whose speech is likely to induce such action.
See Brandenburg v. Ohio,
. Plaintiffs have also asked this Court to address the constitutionality of Sections 901(a) and 901(b) of the FRAA. The former is challenged by immigrant aliens who claim that the denial of Section 901(a) protection to them violates the equal protection component of the Fifth Amendment Due Process Clause. The latter, specifically the PLO Exception, is challenged by nonimmigrant aliens also on Fifth Amendment grounds. Although we did address this latter challenge in our ruling in court on December 22, 1988, at that time we did not reach the question of whether nonimmigrant aliens were entitled to First Amendment protection. Since we now find that the First Amendment protects all aliens, it is no longer necessary to consider the constitutionality of Section 901 of the FRAA.