Since 2019, people applying for a visa to the United States have had to register their social media accounts with the U.S. government as part of the application process. Two U.S.-based documentary film organizations that regularly collaborate with non-U.S. filmmakers and other international partners sued the State Department shortly after the policy went into effect, challenging the rule on First Amendment and other grounds. EFF filed an amicus brief in the district court in 2020 arguing that even public social media information implicates both free speech and privacy interests. Unfortunately, a federal judge has dismissed the case, Doc Society v. Blinken.
Visa applicants already are required to disclose personal information including their work, travel, and family histories. The “Registration Requirement,” which went into effect in May 2019, requires visa applicants to disclose their social media identifiers over the past five years, including for pseudonymous accounts. The policy began during the Trump Administration and has continued under President Biden. The State Department estimated that 14.7 million people would be affected by the policy each year.
The plaintiffs argued that the Registration Requirement violated the expressive and associational rights of both their U.S.-based and non-U.S.-based members and partners. We agree: knowing that your social media posts will be combed through will lead people to self-censor. Additionally, the rule deprives visa applicants of the rights to anonymous speech and private association. The district court rejected the plaintiffs’ First Amendment arguments and dismissed the lawsuit with prejudice, meaning the plaintiffs can’t amend their complaint.
The district court acknowledged that U.S. citizens have a right to receive information and ideas from, and to freely associate with, non-U.S. persons. But the court rejected the plaintiffs’ argument that the Registration Requirement prevents them from doing so because of the rule’s chilling effect on the social media activity of would-be visitors to the United States. The court found that the plaintiffs’ complaint lacked specificity, stating, “These allegations fail to identify a particular instance of speech that any person wishes to—but cannot—hear.”
The court also rejected the plaintiffs’ arguments that foreign national visa applicants have any First Amendment rights when initially applying for visas from abroad. And while the court recognized the First Amendment rights of noncitizens currently present in the United States who limit their online speech because they may need to renew a visa in the future, it held that the federal government’s regulation of immigration should be granted significant deference.
We share the plaintiffs’ disappointment with this ruling. We await the plaintiffs’ decision on whether they will appeal to the D.C. Circuit.