Undocumented Speakers and Freedom of Speech; a Relatively Uncontroversial Approach

Abstract

The question of broad federal constitutional free speech rights for undocumented speakers is generally unexplored in the case law and the law review literature. This Article sketches a case for such rights based on a relatively uncontroversial argument. Briefly, free speech rights generally are inherently relational. They may be enforced either by potentially willing speakers or by potentially willing listeners. As a practical matter, there are a number of current citizen-voters who, for the sake of more fully informing themselves on a broad range of cultural, economic, legal, and political issues, would prefer to hear from the broadest possible range of relevant sources. Such sources would presumably include a broad range of physically present undocumented persons with diverse experiences. As a general matter, punishing or preventing the speech of undocumented persons, where they would otherwise be willing to speak, invokes the clearly established free speech rights of the willing potential listeners among citizen-voters. The willing undocumented speakers in such cases thus wind up with what we might call pragmatic or de facto free speech rights, subject to appropriate regulation. A number of points of clarification and alternative analyses are then addressed.