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Different countries have different laws on what kind of speech is permitted, and the laws of the United States are very permissive, with only minimal speech restrictions. Even though the First Amendment also protects religious freedom, that is a more settled issue because legal experts say it is possible to claim asylum under such ground. This is in the context of the fact that many countries around the world have passed anti-hate-speech laws that cover forms of speech that would be protected under the First Amendment.

For example, let's say an asylum seeker from western Europe said online (or wants to say) that they do not want Muslims in their country, but saying so could be charged as religious hatred. Could a person from a different country who said (or wants to say) something publicly (including online) that is against that country's laws claim asylum on the grounds that speaking about such an issue would have them punished legally for doing so, but would not be prosecuted in the United States?

This is different from the cases on religion because this would be a form of political asylum. It does share parallels with cases of people leaving countries to avoid military service (most notably Russia in 2023 when they wanted to conscript 300,000 Russians to fight in Ukraine). I do not believe this has been tested in US court because the Internet is relatively new along with such laws, but I could be wrong. If it has, I would like to see what the precedent is.

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Yes

But not in the case you propose.

And not because it’s a speech act.

The relevant claim is that the person will suffer disproportionate punishment.

So, if the person legitimately fears that the government will charge them with a crime for speaking and that crime has a disproportionate punishment (say death or life), then they can make an asylum claim.

Most western democracies (except the US) have hate speech laws, but it is likely that the US will not find the punishments disproportionate even though the first amendment would make such laws unconstitutional there.

Dale M
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"Yes", but the question is ill-posed

Stripped to the bone, the question boils down to:

Country X has laws that allow prosecution under some circumstances. Country Y does not. Could a national from country X claim asylum in country Y?

To which the answer is: it matters little why or how the laws of the countries diverge. What matters is country Y’s laws about asylum.

For example, in , asylum is defined by this section of the immigration and asylum code. Excluding the case of war refugees, asylum requires that the person:

  • (L712-1) is exposed to death penalty, torture or inhumane treatment, or a grave, direct and individualized threat against them due to civil unrest;
  • (L712-2) is not under serious suspicion of having committed war crimes or a serious non-political offense;
  • (L713-3) cannot relocate within their home country to a place where they would be safe.

Your hypothetical case would face difficulties under these criteria:

  • Mere fines or short periods of imprisonment do not suffice to establish a grave threat under L712-1. For instance, Dorota Rabczewska was condemned by a Polish court to a fine slightly above 1000€ for saying that "It is hard to believe in something [the Bible] written by people who drank too much wine and smoked weed". She is a successful entertainer for whom the fine is pocket change, and Polish police would defend her if Christian fundamentalist militias tried to kill her; she would most likely not have been granted asylum in France if she had gone there after her trial. (That the court was reversed by the ECtHR later is irrelevant to this analysis.)
  • It is questionable whether hate speech laws are political offenses for the purpose of L712-2. They are not under ECtHR jurisprudence (see the links at the end of the Wikipedia article about article 10). You might disagree, and you might be right in a philosophical sense, but what matters is what the court of whichever place grants asylum decides.

A contrario, the Constitution of Russia is mostly aligned with those of "Western" secular democracies, and contains provisions for freedom of expression. Nonetheless, that piece of paper does little to protect political dissidents from extrajudicial killings, "accidents", or zealous prosecution of non-political (fabricated) crimes; many of them have successfully claimed asylum in other countries.

Are you mixing things up with extradition?

Imagine that John Doe is a national of Blasphemistan, a country with strict blasphemy laws. He makes public comments that clearly break those laws, and judging by previous similar cases, can expect at least ten years of jail if he is caught. He escapes the country through the land border to Atheistan, and is caught by border police there. Atheistan is a secular democracy with no blasphemy laws.

Blasphemistan requests that Atheistan hands John over to them for prosecution. Atheistan should refuse such a request, because of the double criminality requirement: a person currently under country A’s power will not be handed over to country B on the basis of a crime that does not exist in country A. In that sense, the First Amendment is a bar to extradition.

However, it does not follow that A has to grant John asylum. I suspect that if John is a dual national and has a passport from Neutralistan (another secular democracy where John would be safe from prosecution from B), A could deport him to Neutralistan. But that is another question.

UJM
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The Laws of the Constitution apply to citizens of the United States, or -- *if customs and immigration implemented visa and contract policies for entering the US -- those who have agreed to conform to them as a visitor. Since the US hasn't made signing an agreement mandatory before entering the country (to my knowledge), I would argue they (the customs/immigration agents) are completely responsible for everyone they let into their borders. If something goes wrong, on what legal grounds will police argue to enforce the law? None, for they did not enter into any agreement upon entering in most cases of the US. They, therefore, can only push them back out of the country.

The boundary of a country is the boundary of their law and acts as the immune system for the body-politik within. Any interaction between outsiders should be viewed as a special state of affairs which engages the whole social contract between the citizens and the highest levels of power. There are, of course, ways to manage this, but to my knowledge the US has not implemented them. It operates purely by threat and intimidation, not law.

So, in general, the rights enumerated by American Law, cannot be used to grant asylum for foreigners. An official of the government would have to be engaged who is taking personal responsibility for the individual(s) before entry.