For companion material to accompany Article 1, U.S. Chamber of Commerce Sues Trump Administration, review the article from MSN, Unions sue Trump administration over social media 'surveillance' program.

Three labor unions represented by the Electronic Frontier Foundation (EFF) recently sued the Trump administration over a program that is searching the social media posts of visa holders, arguing that the practice violates the First Amendment rights of people legally in the United States.

The Lawsuit

The lawsuit, filed in federal court in New York, asks a judge to block the administration from engaging in “viewpoint-based investigation and surveillance.” It also asks for a court order to purge any records created so far under the administration’s program.

The Trump Administration’s Position

The Trump administration has said it is scouring social media for posts that it deems hostile or threatening and then using that information as a basis to revoke some people’s visas. President Donald Trump announced the basis for the policy in January in an executive order targeting noncitizens in the country who “bear hostile attitudes” or support “threats to our national security,” and the Department of Homeland Security in April said it was screening foreign nationals’ social media activity for antisemitism.

White House deputy chief of staff Stephen Miller said in July that there are administration officials “working continuously” to revoke the visas of foreigners who “espouse hatred for America or its people.” And in a thread on X this week, the State Department highlighted six examples of visas it said it had revoked from foreign nationals for celebrating the shooting death last month of conservative activist Charlie Kirk.

More Than 55 Million People with U.S. Visas

There are more than 55 million people who have valid U.S. visas, including those for tourism, studying or work, according to The Associated Press, putting a huge swath of the population under potential social media monitoring.

Legal Challenges to Deportation Orders

A federal judge in Boston ruled last month that the deportation policy violated the free speech rights of foreign students studying the United States who had expressed support for Palestinian rights, but the judge’s 161-page order did not address the administration’s monitoring of social media that led up to the deportation proceedings. A separate lawsuit pending in federal court in California is also challenging deportation orders.

The Effect of Widespread Surveillance

The latest lawsuit makes a different argument than the other two lawsuits: In addition to challenging the deportations of visa holders, it targets the Trump administration’s mass searches of social media, saying it amounts to an unlawful program of widespread surveillance and suppresses dissent.

“They’re deploying a variety of automated and AI tools in order to scan and review speech online, at a mass scale that wouldn’t be possible with human review alone,” said Lisa Femia, a staff attorney for the San Francisco-based EFF, a nonprofit focused on digital rights and online civil liberties.

“This sweeps in a lot of speech,” she said. “A lot of this is core political speech that is absolutely protected by the First Amendment.”

In addition to lawyers from EFF, the plaintiffs are represented by lawyers from Muslim Advocates, a legal group for American Muslims, and by the Media Freedom and Information Access Clinic, a student law clinic at Yale Law School.

The U.S. State Department’s Response

State Department spokesperson Tommy Pigott recently said that the administration believes it has a firm legal basis.

“The Supreme Court has repeatedly made clear that aliens do not have the same First Amendment rights as American citizens,” Pigott said in an email. “The United States is under no obligation to allow foreign aliens to come to our country, commit acts of anti-American, pro-terrorist, and antisemitic hate, or incite violence. We will continue to revoke the visas of those who put the safety of our citizens at risk.”

Prior U.S. Supreme Court Rulings

The Supreme Court has ruled that the First Amendment’s guarantee of free speech applies to foreign nationals who are in the United States, including in a 1945 case involving an attempt to deport an alleged communist born in Australia. Other cases, such as one from 1952 cited by Trump administration lawyers earlier this year, have hinged on whether a noncitizen’s speech involved “advocating change by force and violence.”

The Plaintiffs

EFF filed the lawsuit on behalf of three major labor unions that represent teachers, graduate students or others who say their speech is being chilled: the American Federation of Teachers, the Communications Workers of America and the United Auto Workers. (Despite its name, the UAW includes many members who work outside the auto industry, including in academia.)

The lawsuit says that the union members are having their speech “chilled by the threat of adverse immigration action if the government disapproves of anything they have expressed or will express.” It also says that the unions themselves have suffered a loss of engagement because of “fear of retributive immigration consequences.”

The lawsuit alleges that the Trump administration runs a “surveillance program” as an interagency operation between the Homeland Security and State departments. It says that the purpose of the program is to “detect disfavored viewpoints” and that it has the effect of “coercing silence.” The program violates not only the First Amendment but also the Administrative Procedure Act, a federal law about how agencies are allowed to operate, the lawsuit argues.

Femia said that the Trump administration seems to take a wide definition of threatening speech, covering not only statements about Kirk or Palestinian rights but anything it finds objectionable.

Trump’s order in January covered “hostile attitudes toward [American] citizens, culture, government, institutions, or founding principles.”

“The chilling effects on speech are heightened by the uncertainty,” Femia said. “The list seems to expand unpredictably at the whims of the president or the administration.”

Stark Warnings

The administration has talked up its policy on social media, issuing stark warnings about the speech of foreign nationals.

“Aliens who take advantage of America’s hospitality while celebrating the assassination of our citizens will be removed,” the State Department said in the thread on X, referring to Kirk’s death.