Undocumented Speakers and Freedom of Speech; a Relatively Uncontroversial Approach

R. George Wright

Indiana University Robert H. McKinney School of Law

March 12, 2012

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.

Number of Pages in PDF File: 31

Keywords: freedom of speech, relational speech, aliens, undocumented speakers, pragmatic free speech rights

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Date posted: March 13, 2012  

Suggested Citation

Wright, R. George, Undocumented Speakers and Freedom of Speech; a Relatively Uncontroversial Approach (March 12, 2012). Available at SSRN: http://ssrn.com/abstract=2020570 or http://dx.doi.org/10.2139/ssrn.2020570

Contact Information

R. George Wright (Contact Author)
Indiana University Robert H. McKinney School of Law ( email )
530 West New York Street
Indianapolis, IN 46202
United States

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