No, Foreign Officials Do Not Get First Amendment Immunity from U.S. Sanctions

By Mark Goldfeder

Thursday, May 21, 2026

 

Yesterday, the Trump administration removed Francesca Albanese from the U.S. sanctions list after a federal judge temporarily blocked enforcement on First Amendment grounds. That may have been a tactical decision, but it was not a legal concession, and it should not be treated as one. The injunction remains in effect, meaning the government cannot relist her without immediately running into the same order. The only way out is through the D.C. Circuit, and the administration should appeal — not to punish Albanese, but because the opinion is entirely wrong and its logic, left unchallenged, threatens the legal foundation of the entire U.S. sanctions architecture.

 

Albanese, an Italian citizen living abroad, was sanctioned after the government concluded that she had assisted or supported International Criminal Court efforts to prosecute U.S. and Israeli nationals. She did not bring the lawsuit herself. Her Italian husband and U.S.-citizen daughter sued instead, arguing that the sanctions harmed their property, travel, family, and constitutional interests.

 

Those harms may be real. But the court went much further than protecting the family’s rights. It used their injuries as a bridge to constitutionalize Albanese’s own foreign sanctionable conduct, and that core mistake runs through every part of the opinion.

 

Albanese is not a U.S. citizen, nor a lawful permanent resident. She is not presently in the United States. The sanctioned conduct occurred abroad, in her claimed role as a U.N. Special Rapporteur. The court acknowledged the general rule that foreign nationals outside U.S. territory do not possess U.S. constitutional rights, but then treated Albanese’s former D.C. residence, mortgage, tax payments, American child, past university affiliations, and prior travel as enough to give her “at least some” First Amendment protection. That was wrong. The “substantial connections” doctrine stretches to due process protections for foreign persons whose property is being adjudicated by the United States. It does not establish that a foreign official abroad has a First Amendment right to assist in coercive foreign legal action against U.S. or allied nationals. Owning a condo in Washington may give a foreign national some process rights before the government freezes it; it does not give her a constitutional right, from abroad, to use a U.N. mandate to assist ICC prosecutions of Americans then claim immunity from sanctions for doing so.

 

The standing analysis compounds the error. Third-party standing allows a plaintiff to assert another person’s existing rights. It cannot manufacture rights the third party does not have. The court found that Albanese’s husband and daughter suffered real injuries, then allowed them to assert her First Amendment rights on the theory that they are close family members. But that only works if she has actual First Amendment rights to assert. Again, the court never squarely held that she does, just that she might have “some” protection. Either she has First Amendment rights, in which case the court should have said so directly and explained why a foreign official abroad qualifies, or she does not, in which case the case ends at standing. The opinion assumes the answer to the hard question in order to avoid asking it.

 

Even setting aside jurisdiction, the merits analysis fails. The judge treated the designation as punishment for “speech” and leaned on the finding that Albanese made only “non-binding recommendations” with no formal power over the ICC. But sanctions law routinely reaches communicative conduct: coordination, advice, targeting letters, strategic guidance, organized pressure campaigns, etc. None of those are binding, and the First Amendment does not automatically immunize those acts when they are part of a foreign sanctions-triggering course of conduct.

 

The opinion’s treatment of Holder v. Humanitarian Law Project illustrates the problem of the court’s sleight of hand. The Supreme Court there upheld restrictions on coordinated “speech” that assisted foreign terrorist organizations, explaining that coordinated assistance to a foreign entity can be regulated as conduct even when it takes the form of words. The judge here quoted Holder for the line that “independently advocating for a cause is different from providing a service,” then assumed the very conclusion in dispute (i.e., that Albanese was merely independently advocating). The government’s theory was not that she criticized Israel or held an anti-American viewpoint. It was that she engaged with ICC efforts to prosecute protected persons. Her recommendations were not op-ed commentary; they were coordinated participation in a foreign coercive legal campaign, which is precisely the distinction Holder drew. A sanctions regime targeting that assistance is not viewpoint discrimination. Sanctioning someone for saying “I support Palestine” would raise serious First Amendment problems. Sanctioning someone for materially assisting an international tribunal’s unauthorized effort to prosecute Americans is a foreign affairs and national security judgment.

 

The broader implications are serious. Treasury has sanctioned Russian and Iranian actors for election-interference operations run through fake media fronts and disinformation campaigns; RT executives and proxy websites for malign-influence networks; militia figures for incitement; and Bosnian actors whose secessionist rhetoric was part of a destabilization campaign. Abstract opinions are not sanctionable, but coordination, targeting, strategic advice, and organized pressure campaigns do not become constitutionally protected just because they travel through speech. If foreign nationals abroad can invoke the First Amendment whenever sanctions touch recommendations, reports, or advocacy directed at a foreign enforcement body, much of the U.S. sanctions architecture is suddenly vulnerable: terror-finance, cyber, corruption, foreign-interference, human-rights sanctions all often turn on communications. That is not what the First Amendment provides, and it is why the administration should appeal.

 

The appeal should not focus on whether Francesca Albanese is awful. She is. It should focus on whether a district judge can constitutionalize a foreign official’s campaign against American nationals simply because she calls it advocacy, and whether the United States must keep its financial system open to those who materially assist an international campaign targeting U.S. citizens and allies for prosecution in a tribunal with no legitimate jurisdiction over them. The answers are no.