One Opinion Under Law, Unreviewable with Revocations and Denials for All

Winter 2026

Patrick Fabi

Edited By: Alexander Christofi

The United States of America stands at the forefront of freedom and liberty. Tens of millions of people apply for U.S. visas every year, seeking the opportunity to experience this freedom. However, the Department of State (DOS) undermines this reputation by using its authority to revoke visas as a means of targeting and punishing political opposition. On October 14, 2025, the DOS announced via X that it had revoked the visas of six foreign nationals [1]. These actions were in response to social media comments that the DOS deemed “celebratory” of the assassination of right-wing political commentator Charlie Kirk [2]. Through his organization, Turning Point USA, and The Charlie Kirk Show, Kirk became famous amongst the MAGA movement [3]. His strong support of President Donald Trump made Kirk a target for criticism of the administration [4]. By taking action against Kirk’s critics, the DOS is simultaneously attacking political opposition and defending the Trump administration. While the rhetoric in this announcement frames these revocations as an impartial administrative action, the selective presentation of similar opinions indicates that they were deliberate and targeted. The Secretary of State’s actions to punish opposing opinions demonstrate the DOS’s expansion of authority over free speech. The six visa holders' comments do not constitute substantive grounds for visa revocation, exposing the abuse of the Secretary of State’s purely discretionary power to control political speech and warranting reform for safeguards over this power.

When the Secretary of State revoked the visas of the six foreign nationals, he relied on the authority granted in the Immigration and Nationality Act of 1952 (INA). The INA grants the Executive Branch the ability to revoke a visa, as stated in 8 U.S.C. § 1201(i), “the consular officer or the Secretary of State may at any time, in his discretion, revoke such visa or other documentation… There shall be no means of judicial review” [5]. Not only does the INA grant the Secretary of State the warrant to revoke a visa, but they may do so without judicial review. Without this check, courts cannot challenge the Secretary of State's actions, thereby creating an opportunity for abuse of power.

The Secretary of State’s recent actions mark a shift from treating social media merely as a tool for identity verification to a substantive ground for immigration enforcement. Beginning in 2015, the Department of Homeland Security (DHS) initiated programs to screen visa applicants' social media accounts [6]. DHS asks visa applicants to disclose their social media “identifiers,” such as usernames and handles [7]. At the time, the purpose of sharing identifiers was to verify an applicant’s identity [8]. The DOS’s reliance on social media posts to justify visa revocations reflects an unintended application of the Secretary of State’s authority. This unchecked discretionary power contradicts the United States’ commitment to free expression and due process.

Congress enacted the INA at the height of the Cold War, establishing the DOS’s authority over visa issuance and revocation. Under 8 U.S.C. § 1201(i) of the INA, the Secretary of State may “at any time, in his discretion, revoke such visa” [9]. This power provided a swift administrative tool to prevent the entry of individuals suspected of Communist affiliations [10]. However, the Immigration Act of 1990 amended Title 8 of the United States Code, Section 1182, to end ideological exclusion as a basis for visa ineligibility [11]. Even after this amendment, the INA still authorizes the DOS to target visa-holding individuals for ideological dissent. What was once framed as a necessary security measure has become a vehicle for the Secretary of State’s punitive action against protected expression, without procedural safeguards. At the time of the bill’s passing, and when Congress deemed it most necessary, the INA had not been universally supported. President Harry Truman even vetoed the bill, warning of the dangers of relying on opinion rather than evidence. In his veto, President Truman states,

“Heretofore, for the most part, deportation and exclusion have rested upon findings of fact made upon evidence. Under this bill, they would rest in many instances upon the ‘opinion’ or "satisfaction" of immigration or consular employees. The result would be to restrict or eliminate judicial review of unlawful administrative action” [12].

President Truman worried that it would become impossible to moderate immigration officials who act unlawfully. Rather than relying on facts, courts would rely on opinions. This became the case as early as 1972 in Kleindienst v. Mandel, where courts distanced themselves from the DOS’s actions [13]. Additionally, Congress amended Section 1201(i) to explicitly state “there shall be no means of judicial review” in 2004 as part of the Intelligence Reform and Terrorism Prevention Act [14]. This exclusion of judicial review allows the DOS to act with impunity, thereby bypassing the First Amendment protections that would otherwise apply.

In 1969, Ernest E. Mandel applied for a non-immigrant visa to enter the U.S. to speak at a conference [15]. Mandel was a Belgian professional journalist and editor-in-chief who was a revolutionary Marxist [16]. In this case, the DOS sought to exclude Mandel from entering the country based on his Marxist views [17]. Rather than explicitly citing his ideologies as the reason for his exclusion, they cited a minor itinerary violation during his visit in 1968 [18]. The Supreme Court Justices ruled that this reasoning was acceptable enough to exclude Mandel from entering the U.S., noting that, “When, as in this case, the Attorney General decides for a legitimate and bona fide reason not to waive the statutory exclusion of an alien, courts will not look behind his decision” [19]. Even if the court believed the revocation or exclusion by the DOS was politically motivated, so long as they present any superficially legitimate reason, courts can take no action against their decision. This precedent parallels the 2025 revocations involving reactions to the death of Charlie Kirk. 

The DOS phrases the six visa revocations as exclusions due to national security risk, therefore masking the apparent targeting and punishment of anti-Kirk viewpoints. In the revocation announcement, the DOS claims, “The United States has no obligation to host foreigners who wish death on Americans” [20]. The use of impartial rhetoric is strategic, as it presents a national security risk narrative that technically satisfies the “facially legitimate and bona fide” standard established in Kleindienst v. Mandel. Importantly, in the eyes of the courts, the Secretary’s security risk justification acts as enough cause for the decision to move forward without judicial review. Just as the Attorney General targeted Mandel for his ideology, the Secretary of State targeted social media reactions to Charlie Kirk and silenced the six visa holders. By labeling their speech as a threat, the Secretary exploits the Mandel “facially legitimate and bona fide reason” ruling, ensuring that courts remain sidelined while excluding political dissenters.

The DOS’s actions not only demonstrate an act of control over opposing opinions but also mark a new strategy compared to previous practices. The DOS’s actions demonstrate a transition from using social media as an additional identity-verification mechanism to treating it as a substantive basis for revocation. In 2019, identifiers were no more than a means to confirm one’s identity, but by 2025, public accounts became mandatory for F, M, and J visa applicants [21]. This requirement has been used to control speech, constantly monitoring for acceptable speech. This governmental supervision creates conditions where the benefit of a visa is predicated on the forfeiture of free expression. When the DOS punishes those who post “celebratory” comments, it signals to all foreign nationals that the DOS has tied their immigration status to their political ideologies. The DOS is thus creating a dangerous environment in which visas become a tool not for economic and foreign policy interests but for disciplining speech.

While it is true that the First Amendment does not extend the same protections to visa holders abroad as it does to those within U.S. borders, this should not give the government authority to discriminate against dissenting political viewpoints. In fact, had the six visa holders been within U.S. borders, the First Amendment would have protected their comments. In Brandenburg v. Ohio (1969), the Supreme Court held that advocacy of illegal action constitutes protected speech [22]. Clarence Brandenburg was a Ku Klux Klan leader in Ohio [23]. At a KKK rally, Brandenburg gave a speech stating, “We’re not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken” [24]. Under the Ohio Criminal Syndicalism statute, the state convicted Brandenburg for advocating violence and assembling with a group that advocates violence [25]. The Supreme Court reviewed the case and the contents of the speech and reversed Brandenburg’s conviction. It was held, “Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action” [26]. This ruling outlines the Brandenburg Test’s two conditions: incitement of imminent lawless action, and a likelihood to incite or produce such action [27].

Under Brandenburg v. Ohio, the visa holder’s social media comments do not constitute unlawful speech. One comment by an Argentine national states, “Just came on here to say charlie kirk can rest in f— piss and yet again if you have any empathy at all for people like this you can ahead an remove yourself as my friend. i do not give f— about the death of a person who devoted his entire life spreading racist, xenophobic, misogynistic rhetoric. it’s hot as f— where this man currently is and it’s deserved” [28]. This comment does not meet the standards of the “Brandenburg Test” as it does not incite imminent lawless action and is not likely to produce such action [29]. The remaining comments follow the same pattern and are unlikely to elicit any actual action. This case outlines the legal standards governing unlawful speech, which contrasts with the Secretary’s subjective foreign policy interest standard seen in the INA.

Congress amended the INA to include the Immigration Act of 1990, which prohibits denying an applicant on the grounds of ideology. The Immigration Act of 1990 states,

"(iii) Exception for other aliens.--An alien, not described in clause (ii), shall not be excludable or subject to restrictions or conditions on entry into the United States under clause (i) because of the alien's past, current, or expected beliefs, statements, or associations, if such beliefs, statements, or associations would be lawful within the United States, unless the Secretary of State personally determines that the alien's admission would compromise a compelling United States foreign policy interest” [30].

This clause of the INA highlights that the DOS should not reject the six visa holders from entering the U.S. based solely on their comments and beliefs. However, based wholly on the Secretary of State’s discretion, the DOS determined that they would adversely affect the United States’ foreign policy interests. The actions taken by the Secretary of State are the ultimate realization of President Truman’s fears that this purely administrative act is entirely based on a subjective interpretation of “harm” shielded from judicial review.

To prevent the purely subjective opinion of one, there should be procedural safeguards for speech-based revocations. These revocations should require written notice to the visa holder stating the precise reason for revocation. Rather than “when possible” and “when practicable” being the operative language, there should be mandatory immediate notice [31]. Additionally, the grounds for revocation should not be subjective or appear biased. This safeguard should also require that any speech-related visa revocation reasoning pass a narrow, constitutionally grounded standard. The DOS should be required to demonstrate that an applicant’s speech contains a reasonable intent to cause harm, and it should be demonstrated “that the alien’s admission would compromise a compelling United States foreign policy interest,” as stated in the INA [32]. These measures would prevent the DOS from retaliating against political speech by merely stating any previously “facially legitimate” reasoning [33].

Furthermore, reform of social-media screening practices is necessary to ensure an unpunishable exchange of ideas as supported by the First Amendment. Rather than constant monitoring for political ideologies, the use of social-media identifiers should return to identity verification and fraud detection. These reforms aim to prevent targeting and punitive action based on political leanings.

Critics may argue that implementing these reforms and safeguards would slow down the visa revocation process, as it would take time for the DOS to demonstrate and articulate the harm an individual may intend to cause. Additionally, courts may refuse to intervene on the basis of prior rulings. However, the protection of free speech is fundamental to the Constitution. Courts must recognize that tying one’s visa status to their political beliefs acts against the First Amendment. The slowing of the visa process cannot outweigh constitutional principles. Transparency is essential to democracy.

As a nation in which freedom of speech is a fundamental right, the United States cannot permit the DOS to target and punish opposing political ideologies. The six revocation cases demonstrate that the DOS and the Secretary of State can exercise their discretionary authority to revoke the visas of those who speak out against the administration. Under the Immigration and Nationality Act, the DOS has the power to revoke a visa at its discretion, without judicial review. Established in Kleindienst v. Mandel (1972), the "facially legitimate and bona fide reason" ruling prevents judicial intervention of any DOS visa revocations so long as the DOS presents a legitimate outwardly neutral justification [34]. While this power is a valuable and quick tool in national security, without this check, it is impossible to challenge a revocation, opening the door to misuse.

Furthermore, the visa holders' comments do not constitute illegal speech under Brandenburg v. Ohio (1969). This case determines illegal speech based on the Brandenburg Test’s two conditions: incitement of imminent lawless action, and a likelihood to incite or produce such action [35]. The comments do not meet these standards. Additionally, had the visa holders been in the U.S., the First Amendment would have protected their comments. The DOS did not base the revocations on impartial findings, but on its own objectives. By revoking the six visas based on their social media comments, the DOS signals to all visa holders and applicants that their status is directly connected to their publicly presented political views. The use of social media to present these revocations not only makes a spectacle of the lives the DOS is altering, but also serves as an example of what may happen to those who speak out. Rather than serving as a tool for national development, visas have transformed into a tool to suppress political dissent.

What was once an exceptional immigration and national security tool is quickly increasing in use. On January 12, 2026, the Department of State announced it had “now revoked over 100,000 visas” [36]. This figure represents a significant increase over prior years, underscoring the aggressive application of this authority [37]. Even if many of these revocations stem from routine immigration enforcement, the sheer volume, with so little judicial oversight, creates an opportunity for mass visa revocation of holders with differing political ideologies. This system makes political censorship permissible, equating access to the U.S. with politically acceptable expression. Ultimately, to have a trusted and functioning visa system, it is not the extent of the Secretary’s discretion that matters, it is the transparency and the neutrality with which that discretion is exercised.

References

[1] U.S. Department of State (@StateDept). 2025. “The United States has no obligation to host foreigners who wish death on Americans. The State Department continues to identify visa holders who celebrated the heinous assassination of Charlie Kirk. Here are just a few examples of aliens who are no longer welcome in the U.S.” X, Oct. 14, 2025, 2:55 P.M. https://x.com/StateDept/status/1978218112882266594.

[2] U.S. Department of State, “The United States has no obligation to host foreigners who wish death on Americans.”

[3] Gareth Evans, Charlie Kirk, the conservative influencer who became the voice of Maga youth, BBC News Sept. 20, 2025, https://www.bbc.com/news/articles/cdxqnkwerj7o.

[4] Evans, “Charlie Kirk, the conservative influencer who became the voice of Maga youth.”

[5] Immigration and Nationality Act § 221(i), 8 U.S.C. § 1201(i) (2024).

[6] “U.S. Dep’t of State, Collection of Social Media Identifiers from U.S. Visa Applicants,” U.S. Department of State, June 4, 2019, https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/visas-news-archive/20190604_collection-of-social-media-identifiers-from-U-S-visa-applicants.html.

[7] U.S. Department of State, “U.S. Dep’t of State, Collection of Social Media Identifiers from U.S. Visa Applicants.”

[8] U.S. Department of State, “U.S. Dep’t of State, Collection of Social Media Identifiers from U.S. Visa Applicants.”

[9] INA, § 1201(i).

[10] “The Immigration and Nationality Act of 1952 (The McCarran-Walter Act)” Milestones: 1945–1952, U.S. Department of State, accessed March 1, 2026, https://history.state.gov/milestones/1945-1952/immigration-act.

[11] Immigration Act of 1990, Pub. L. No. 101-649, § 601, 104 Stat. 4978, 5070 (1990).

[12] President Harry S. Truman, “Veto of Bill To Revise the Laws Relating to Immigration, Naturalization, and Nationality,” Harry S. Truman Library Museum, June 25, 1952, https://www.trumanlibrary.gov/library/public-papers/182/veto-bill-revise-laws-relating-immigration-naturalization-and-nationality.

[13] Kleindienst v. Mandel, 408 U.S. 753 (1972).

[14] INA, § 1201(i).

[15] “Facts of the case,” Kleindienst v. Mandel, Oyez, Accessed March 2, 2026, https://www.oyez.org/cases/1971/71-16.

[16] “Facts of the case,” Kleindienst v. Mandel, Oyez.

[17] “Facts of the case,” Kleindienst v. Mandel, Oyez.

[18] “Facts of the case,” Kleindienst v. Mandel, Oyez.

[19] Mandel, 408 U.S. 753 at 1.

[20] U.S. Department of State, “The United States has no obligation to host foreigners who wish death on Americans.”

[21] “Announcement of Expanded Screening and Vetting for Visa Applicants,” U.S. Department of State, June 18, 2025, https://www.state.gov/releases/office-of-the-spokesperson/2025/06/announcement-of-expanded-screening-and-vetting-for-visa-applicants.

[22] Brandenburg v. Ohio, 395 U.S. 444 (1969).

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] U.S. Department of State (@StateDept), “An Argentine national said that Kirk ‘devoted his entire life spreading racist, xenophobic, misogynistic rhetoric’ and deserves to burn in hell. Visa revoked,” X, Oct. 14, 2025, 2:55 PM, https://x.com/StateDept/status/1978218114622910799?sprohibits.

[29] Brandenburg, 395 U.S. 444.

[30] Immigration Act of 1990 § 601.

[31] U.S. Department of State, “9 FAM 403.11-5 (2024),” “9 FAM 403.11-4(A) (2024),” https://fam.state.gov/fam/09FAM/09FAM040311.html.

[32] Immigration and Nationality Act § 212(a)(3)(C), 8 U.S.C. § 1182(a)(3)(C) (2024).

[33] Mandel, 408 U.S. 753.

[34] Mandel, 408 U.S. 753.

[35] Brandenburg, 395 U.S. 444.

[36] U.S. Department of State (@StateDept), “🚨BREAKING: The State Department has now revoked over 100,000 visas, including some 8,000 student visas and 2,500 specialized visas for individuals who had encounters with U.S. law enforcement for criminal activity. We will continue to deport these thugs to keep America safe,” X, January 12, 2026, 7:47 A.M., https://x.com/StateDept/status/2010740549469557010?s=20.

[37] S.A. McCarthy, “State Department Revoked 100,000 Visas in 2025,” The Washington Stand, January 13, 2026, https://washingtonstand.com/article/state-department-revoked-100000-visas-in-2025.