The article does not seem to cover that question. From previous discussions I have the impression that foreigners are not granted any constitutional rights at the border or even when in their home country (their communication can be freely intercepted). So the US is nowadays on my personal list of totalitarian states that I don't want to travel to. They definitely have better legislation and courts than Russia or North Korea, but in the end the decision is, as a foreigner you don't have those rights, the government does what it sees fit.
The US absolutely does grant full constitutional rights to noncitizens who are physically inside the US, excepting only those inherently tied to US citizenship. (Those are surprisingly few - there is actually not even an explicit right to vote stated in the US constitution, but certainly it is constitutional that noncitizens are not generally allowed to vote).
At border checkpoints on US soil, the border search exception to the Fourth Amendment which this court is interpreting narrowly does not differ based on citizenship. I think there is even no difference about the Fifth Amendment protection against self-incrimination in that context.
Of course, noncitizens do not have the same constitutional right to enter the US as do citizens, which is the same rule that most countries use. So refusing to cooperate at the border could block a foreigner from entering the US in ways it can’t for a citizen.
It is unfortunately also true that US constitutional rights only apply to noncitizens who are physically outside the US in very particular situations and not most of the time. (US preclearance border checkpoints on foreign soil count as physically outside the US for this purpose.) By contrast, US citizens at least in theory fully retain those protections with respect to US government actions wherever they are in the world when the US government ought to know they’re dealing with a US citizen.
That sounds too good to be true. I neither have the legal skills nor the knowledge about the US constitution to tell you where it's incorrect.
I occasionally read the AMA of the immigration lawyer here on HN just for curiosity. I have no intention whatsoever to work in the US, but my impression is that many aspects of visa system sound like treating foreigners as shit in real life. Weird rules, lack of resources, in practice if things go wrong for reasons unrelated to the person you'll lose your visa. Does not sound like full rights when on American soil.
There are indeed many things about the US system that treat foreigners as shit with respect to visa access. But none of that is about giving fewer constitutional rights to foreigners who are physically inside the US.
Visas only control the permission to travel to the US and to apply for admission at a port of entry, and all visa applications and decisions happen while the people taking the action are outside the US. (Visas are only formally applied for at the visa interview, which is never conducted in the US, and visa denials are also issued by the relevant US embassy or consulate abroad and not by the Washington-based part of the State Department.)
The continued legality of anyone’s status within the US following a legal entry does not depend on their visa remaining valid or unexpired. Even if their visa is revoked while they are in the US, that itself only affects future entries, although other actions might of course be taken by the government in parallel.
Importantly, the right to be allowed to enter or remain in the US is one of the constitutional rights that only exists for citizens, no different from most countries. I did say that those few rights which are inherent to citizenship don’t apply to foreigners inside the US. Again, I know of no country in the world which gives foreigners a right to enter and remain, except for conditional rights for specific nationalities like with EU freedom of movement.
Here are two examples of how foreigners have more (and approximately full) rights while inside the US:
Foreigners in the US have far more due process rights if the federal government starts a factually or legally unjustified removal proceeding against them than if a visa officer abroad makes factual or legal errors when denying a visa. The former scenario can often be challenged in administrative, quasi-judicial, or actual judicial proceedings; the latter case has no remedy except to persuade the State Department to change its mind.
If the US government sniffs the communications of two foreigners located within the US, they need a warrant under the same conditions as they would if the foreigners were citizens, unlike the case of purely external communications where the US government is only so constrained if they know a citizen is involved.
Another point of view is: In practice you have to compromise. I certainly don't approve all measures of the government were I live or the government of my passport (which are different). Still I am not actively trying to leave the country or change my citizenship although there would be no big hinders to do either.
For travelling I am much more free to set my preferences. And the US has happened to end up on my personal shit list because of their border procedures. I know them since the 1980s and they have always been some kind of unpleasant, although nothing bad has ever happened to me. I have no criminal intent, you just need to learn to play the game to get through. But in the digital age I don't want to play their game anymore.
I live in the Schengen area. So I can travel to all countries in the Schengen area by just carrying a government id without any regular border controls. (Yes, there are countries that have broken the rules of the treaty.)
In general I am very skeptical about the concept of citizenship. It's an instrument of discrimination.
A continent where laws capable of sending you to prison for freely expressing certain opinions is your counter example to a lack of certain advanced individual rights in the U.S.
A country where the highest court in the land can rule that if you are convicted and sentenced to death, but are factually innocent, that the courts have no obligation to reverse your conviction, and that if you want off death row, you should appeal to the governor. And if the governor says no, well, sucks to be you, you're getting executed anyway.
Many examples abound. Don't be lazy and do a google search. Granted, many of those opinions that create grounds for legal sanction in the EU are disagreeable ones, but that's how freedom of expression as a real right works, it applies to the shit you don't like or want to hear, not just socially condoned opinions.
Multiple EU countries in the Union as well as the statutes of the EU itself condemn and prohibit a wide range of speech under the grounds of offensiveness. This includes hate speech laws with very broadly defined wording, laws against holocaust denial and laws against speech that is offensive to certain identifiable groups. Misinformation laws are also being formulated. However much you might think that many of the above forms of expression are repulsive (I'd likely agree with you on much of that repulsion by the way), such laws can easily be contorted to include all sorts of censorship. Aside from the censorship, free expression really should absolutely also include legally protected free expression in a public context to espouse views that are repulsive and intolerant too.
Not OP of that particular statement, but in Germany you can get imprisoned for denying that holocaust has happened.
However, I would question whether denying historical facts is an opinion. There seem to be fewer cases of people demanding that the holocaust should be resumed. That I would call an opinion. I assume that it would lead to prison if repeated often enough, albeit based on a different law. Still, I am more willing to travel to such country than to a country requesting my passwords at the border. Call it illogical or not, it's my preference.
> However, I would question whether denying historical facts is an opinion.
Historical facs have a tendency to change based on the current political climate. Which is to say, they are always more like opinions.
Although a better example would be insulting a police officer or politician, which can include as bening things as making fun of them on twitter. Granted, this is more a concern for citizens than it is for tourists so I agree with your assessment that the US border controls are a bigger threat to you as a traveller.
Didn't a former Greek finance minister recently get banned from Germany for political reasons? In France it is illegal to deny the holocaust but legal to deny the Armenian genocide.
One noteworthy example of how absurdly politicized these kinds of speech restriction laws can be. Was the mass slaughter of up to 1.5 million Armenian men, women and even little children and babies somehow qualitatively less grotesque? Or perhaps the speech law itself is a muddled, politically oriented idiocy.
