In late May, the State Department issued a pair of cables that rightly invited substantial media attention. The cables are the latest in a series of vague Trump administration directives that are ostensibly intended to combat antisemitism but will inevitably chill or punish First Amendment-protected speech.
The first cable imposed a pause on all new visa interviews for international students until the department could issue guidance on social media vetting. The second directed consular officers to closely scrutinize the social media of all applicants seeking a visa to study, teach, or speak at Harvard University, with a particular focus on antisemitism and antisemitic viewpoints. The cables were not disseminated in isolation. Instead, they are part of a broader, government-wide effort that threatens the right to free speech.
For example, an earlier notice from U.S. Citizenship and Immigration Services (USCIS), an arm of the Department of Homeland Security (DHS), raises substantial issues that have received little analysis so far. On April 9, USCIS announced that it would begin screening many non-citizens’ social media for “antisemitic activity.” The notice is riddled with ambiguities and, as explained below, is in direct conflict with existing DHS policies and regulations. According to the announcement, USCIS would immediately begin reviewing the social media content of green card applicants, foreign students, and individuals “affiliated with educational institutions linked to antisemitic activity” – as well as anyone applying for an immigration benefit over which USCIS has discretion. Almost everyone subject to this notice is already present in the United States, vesting them with substantial First Amendment rights, as the department itself has recognized.
The USCIS notice itself followed a trio of executive orders, including one declaring that the government will vet non-citizens in the United States to ensure they do not “bear hostile attitudes” towards American “culture” or “founding principles,” among other things. Indeed, a subsequent USCIS press release describes the notice as adopting “social media vetting for anti-Americanism.”
The central paragraph in the April 9 notice reads: “Under this guidance, USCIS will consider social media content that indicates an alien endorsing, espousing, promoting, or supporting antisemitic terrorism, antisemitic terrorist organizations, or other antisemitic activity as a negative factor in any USCIS discretionary analysis when adjudicating immigration benefit requests.”
This guidance enables USCIS officers to exercise significant discretion to deny applications for a range of immigration benefits, including most applications to adjust status to that of a legal permanent resident, based on nebulous, undefined terminology. Below, we scrutinize each phrase in this key passage, highlighting in bold the terms and phrases that are undefined as a matter of law or otherwise vague.
Dissecting the USCIS’s April 9 Notice
“USCIS will consider social media content…”: USCIS’s notice provides no definition of “social media content,” which could encompass anything from a post to a like, retweet, or comment. It could even include being tagged in someone else’s social media feed. The Trump administration’s first four months provide a window into how it intends to use content found online to further its immigration enforcement goals, as it has retaliated against individuals for online editorials, social media commentary, and social media posts displaying symbols or common hand gestures that officials claim, without providing evidence, are linked to the Venezuelan gang Tren de Aragua (TDA).
The notice’s ambiguous phrasing invites errors or abuses. For instance, USCIS could target someone who comments favorably on a friend’s Instagram carousel if one of the photos includes content the administration deems to be antisemitic—even if the comment is not about that photo. USCIS might scour critical replies to a pro-Israel page or scrutinize the faces captured in a photo of a pro-Palestine protest featuring signs with antisemitic slogans, even if most people at the protest have no connection to those holding the signs. And it might even impute one person’s social media content to another who isn’t even mentioned in it – concluding, for instance, that if an immigrant’s spouse has posted approvingly about a protest that is deemed to include antisemitic activity, those views are likely shared by the immigrant herself as well.
“…that indicates an alien “endorsing or espousing…”: The words “endorse or espouse” appear in the Immigration and Nationality Act (INA), in a provision declaring that non-citizens who endorse or espouse terrorist activity can be denied admission to and removed from the United States. The phrase “terrorist activity” is defined as well, covering actions such as assassinations; use of firearms or weapons to endanger others or cause “substantial damage to property”; hijacking of certain transportation methods; or detaining and threatening someone in order to compel someone else (like a government entity) to do or abstain from an act.
Neither the statute nor any caselaw defines what it means to “endorse and espouse.” However, according to an internal governmental memorandum obtained via a FOIA request by the Knight First Amendment Institute, the White House Office of Legal Counsel has advised Immigration and Customs Enforcement (ICE) that attempts to enforce this provision against people who express only “abstract” support, or whose support does not directly implicate national security, could be successfully challenged on First Amendment grounds.
“…promoting…”: There is no statutory definition of promotion. When applied to social media content where liking, sharing, or reposting content could be construed as “promoting,” even if the user does not agree with the content in question, this undefined term could make it easy for USCIS to use a broad range of social media activity as a pretext to punish an applicant.
“…or supporting…”: Similarly, there is no stand-alone statutory definition of support. There is a statutory prohibition on providing material support—including property, training, assistance, and services, including even low-level financial transactions—to terrorists or foreign terrorist organizations. Importantly, when it comes to speech, the Supreme Court has interpreted the material support provision to cover only speech that is “to, under the direction of, or in coordination with foreign groups that the speaker knows to be terrorist organizations.” However, since the announcement covers “antisemitic activity” generally, not just activity coordinated with terrorists or an identified foreign terrorist organization, it is unlikely that the term “supporting” in the announcement is meant to be limited to material support, creating additional ambiguity.
“…antisemitic terrorism…”: This term does not appear in any statute and is not a recognized term of art. While “terrorism” has several statutory definitions, including violence that is “premeditated [and] politically motivated” and is “perpetrated against noncombatant targets by subnational groups or clandestine agents,” it is not clear what “antisemitic terrorism” would include that is not already captured by existing terrorism and hate crime statutes.
“…antisemitic terrorist organizations…”: This phrase is also not defined by law. Federal law establishes criteria that, if met, authorize the Secretary of State to designate an organization as a “Foreign Terrorist Organization” (FTO), and the federal government periodically publishes a list of groups that have been designated as FTOs. It is unclear whether the phrase “antisemitic terrorist organizations” is intended to include organizations beyond those on the FTO list and, if so, what the statutory basis is for that characterization. Notably, it is already illegal to provide material support to an FTO, and providing such support or endorsing or espousing terrorist activity are also grounds for inadmissibility and removal, so the government does not need additional tools to tackle support for those organizations.
“…or other antisemitic activity…”: This phrase has no legal meaning, nor any commonly understood interpretation. In fact, the definition of antisemitism itself is highly contested. The definition currently used by the Trump administration has been heavily criticized on the grounds that it chills speech and other activity protected by the First Amendment. Based on the administration’s actions so far, “antisemitic activity” could include organizing and participating in peaceful demonstrations, publishing an op-ed critical of your school’s administration, or simply having a relative by marriage who is deemed a suspected terrorist by virtue of their political activity. Because the notice, taken as a whole, prohibits “promoting” or “supporting” such “antisemitic activity,” it suggests that an applicant could be targeted not just for engaging in those things, potentially in contravention of the First Amendment, but for putting a post on Facebook that simply “supports” someone else doing so. In the absence of any clarifying information, potential applicants are left to guess what activity would count against them.
“…as a negative factor in any USCIS discretionary analysis…”: Immigration benefits are divided into two categories: non-discretionary and discretionary. For non-discretionary benefits, which include removing conditions on one’s permanent resident status or becoming a naturalized citizen, USCIS must approve an applicant’s petition if she satisfies the eligibility requirements for that benefit. For many other benefits, however, such as applications for green cards, extensions of nonimmigrant stays, asylum, refugee or fiancé status, and more, USCIS exercises discretion in determining whether to grant them. Even if an applicant meets the statutory and regulatory requirements, USCIS may reject her application because of certain nondelineated “negative factors.” Under the April 9 notice, those “negative factors” will include social media content that is deemed antisemitic. Although USCIS guidelines instruct officers to review an applicant’s entire record and weigh positive factors against any negative factors, the guidelines themselves acknowledge that there is “no formula for determining the weight to be given a specific positive or negative factor,” leaving significant room for an officer to determine that any particular social media activity is sufficiently negative to merit denial of the application.
Moreover, while the notice will “immediately affect” foreign students and “aliens affiliated with educational institutions,” its language covers all immigration benefits that involve discretionary analysis. It is worth noting that in an earlier part of the notice, USCIS states that it “will begin considering aliens’ antisemitic activity on social media . . . as grounds for denying immigration benefit requests,” rendering ambiguous whether even non-discretionary immigration decisions may be covered by the notice. Given this ambiguity, non-citizens could reasonably fear that any immigration benefit decision, including a non-discretionary determination like granting an application for naturalization, may be affected by this social media review.
Finally, the notice leads off with a warning that certain groups will be targeted immediately, including “aliens affiliated with educational institutions linked to antisemitic activity.” Like other parts of this notice, this clause is so vague as to be almost useless, and the administration has issued no comprehensive list of such institutions. The October 2024 report on antisemitism on college campuses from House Republican committee staff covered five universities, while the Education Department under President Donald Trump announced investigations into five other schools and sent letters to 60 more, claiming that they were under investigation for “antisemitic discrimination and harassment.” Just a week after those letters were announced, the Education Department produced yet another list of schools under investigation.
Put simply, in the barrage of investigations launched and announced, it is impossible for individuals to know if they are affiliated with an “educational institution linked to antisemitic activity” and thus among the groups immediately affected by this notice.
The April 9 Notice is at Odds with Established DHS Policies
Several DHS policies appear to call into question USCIS’s authority to collect and use social media in this way. Under a 2014 policy (which was implicitly reaffirmed in 2019), USCIS indicated that it would not deny immigration benefits “solely based on publicly available information” such as social media content because of “its inherent lack of data integrity.” USCIS may reply that social media will not be the “sole” basis, simply a strong negative factor – but the notice states that “antisemitic activity on social media” will be “consider[ed] … as grounds for denying immigration benefit requests,” explicitly denoting that it could be a dispositive factor.
Notably, USCIS is not the entity that grants (or can revoke) a student’s F-1 visa. That authority resides with the State Department. However, because of extensive information sharing practices between government agencies, USCIS could share the results of its social media review with the State Department, or with other DHS components that have more control over legal status as a student. And if the student applies to remain in the country and for other immigration benefits or changes in status, USCIS’s role becomes more direct and authoritative.
In addition, according to the 2014 and 2019 USCIS policy documents, when publicly available information “impact[s] whether an individual is granted a benefit,” the applicant must be “provided the opportunity” to review, rebut, explain, or resolve the information and any inconsistencies it raises. In fact, USCIS policy specifically states that when the agency finds “social media content that is relevant to the adjudication of the immigration request,” federal regulations mandate that the applicant have the opportunity to “review and rebut” the “derogatory information” before a final decision based on this information is made. These notice and redress opportunities appear nowhere in the April 9 notice.
In addition, while USCIS’s policy manual prohibits agents from making discretionary decisions “arbitrarily or capriciously,” the ambiguities embedded throughout the April 9 policy notice almost guarantee that immigration benefit decisions will be made in this way. And there is no indication that the process that resulted in the dissemination of the notice complied with DHS’s long-standing policy on the operational use of social media, which requires that nearly every use of social media—including those outlined here—comply with all relevant privacy policies and laws, and directs component heads (including the head of USCIS) to establish appropriate guidelines and consult with the department’s privacy officer.
A Threat to Free Speech
In short, the April 9 notice is likely to quell speech, discouraging immigrants and non-immigrants who are lawfully seeking a variety of immigration benefits, along with their family members, friends, and others with whom they engage on social media, from taking part in a wide range of constitutionally protected activity for fear of retaliation. And its smorgasbord of vague terms, many with no legally recognized meaning, enables USCIS officers to exercise nearly unchecked discretion in determining when to reject an otherwise unobjectionable application for a benefit, contrary to well-established government policy, simply because the officer deems something the applicant has posted—or otherwise somehow has been associated with—is, in some undefined way, antisemitic.
