Immigration Detention and Dissent: the Role of the First Amendment on the Road to Abolition

• Publication year: 2022

Immigration Detention and Dissent: The Role of the First Amendment on the Road to Abolition

Alina Das
NYU School of Law, alina.das@nyu.edu

Immigration Detention and Dissent: The Role of the First Amendment on the Road to Abolition

Cover Page Footnote

Professor of Clinical Law, New York University Law School. I express my gratitude to Jason Cade, Michael Kagan, and all the participants in the Georgia Law Review 2022 Symposium for their thoughtful feedback and to Michael Leonetti for his invaluable research assistance. I also thank Taylor Cressler and all the editors of the Georgia Law Review for their excellent editorial feedback.

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IMMIGRATION DETENTION AND DISSENT: THE ROLE OF THE FIRST AMENDMENT ON THE ROAD TO ABOLITION

Alina Das^*

The movement to abolish slavery relied heavily on the exercise and protection of enslaved and formerly enslaved people's freedom of speech against robust efforts to suppress their messaging. The same is true in the context of the movement to abolish immigration detention. For decades, people in immigration detention, formerly detained people, and their allies have exercised their First Amendment rights to expose the conditions of their confinement and demand their freedom. In response to their protests and other forms of individual and collective expression, detained and formerly detained immigrants have faced suppression and retaliation, threatening not only their right to speak out but also the public's right to hear their grievances.

This Essay argues that the freedom of speech is a critical right in the movement to abolish immigration detention, drawing parallels to the exercise and suppression of abolitionist speech during the time of legalized chattel slavery. It explores historical examples of protests, hunger strikes, petitions, and grievances led by detained immigrants, and the impact of these efforts on the movement to abolish immigration detention. It describes how immigration jailers routinely suppress detained immigrants' speech, often through violent means, and critiques the federal government's attempts to justify this suppression in the name of safety and security. As abolitionists argued in the movement to end slavery, freedom of speech has the power to aid in the abolition of even the most entrenched systems of control.

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Table of Contents

I. Introduction..................................................................1435

II. The Exercise of First Amendment Rights in Immigration Detention..............................................1440

A. THE HISTORY OF RESISTANCE IN U.S. IMMIGRATION JAILS AND PRISONS...............................................................1443
B. THE IMPACT OF RESISTANCE........................................1453

III. The Suppression of First Amendment Rights in Immigration Detention.............................................1457

A. SAFETY AND SECURITY AS A PURPORTED JUSTIFICATION FOR SUPPRESSION OF DETAINED PEOPLE'S FIRST AMENDMENT RIGHTS..................................................1460
B. THE SUPPRESSION OF FIRST AMENDMENT RIGHTS UNDER THE SCRUTINY OF THE COURTS...................................1465

IV. Conclusion..................................................................1470

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I. Introduction

"Slavery cannot tolerate free speech. Five years of its exercise would banish the auction block and break every chain in the South."- Frederick Douglass¹
"[I]f the United States is to build a more just and humane immigration system, immigrants themselves must be able to speak up. We are the only ones who can be whistleblowers inside the detention system." - Claudio Rojas²

On December 3, 1860, to mark the one-year anniversary of abolitionist John Brown's burial, a group of people gathered at a public hall in Boston, Massachusetts, to discuss how slavery could be abolished.³ A mob violently disrupted the gathering, and the mayor ordered the meeting cancelled.⁴ Abolitionist Fredrick Douglass condemned both the mob and the mayor for a betrayal of free speech. "No right was deemed by the fathers of the Government more sacred than the right of speech. It was in their eyes, as in the eyes of all thoughtful men, the great moral renovator of society and government," Douglass explained.⁵ It is a right that belongs to all speakers and "does not depend upon where he was born or upon his color."⁶ Suppression of speech is "a double wrong" because it attacks not only the right to speak but also the right to listen.⁷ Douglass believed that the truth about slavery had the power to bring about its demise; therefore, it came as no surprise to Douglass that the attack on abolitionist speech was led by "men who pride themselves

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upon their respect for law and order."⁸ "Theirs was the law of slavery."⁹

Abolitionist demands eventually ushered in a new era in which slavery was delegalized, except as punishment for crime.¹⁰ As many scholars have written, the remnants of illegal and legal slavery survived and morphed into new systems of "law and order" in the United States that have relied heavily on imprisonment to target communities of color.¹¹ A new abolition movement focuses heavily on dismantling these carceral systems.¹² And once again, in the

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name of "law and order," the voices of people most directly impacted by these systems are suppressed.

These dynamics of abolitionist speech and suppression are unfolding within the movement to abolish the U.S. immigration detention system.¹³ The United States operates the largest immigration detention system in the world, detaining tens of thousands of immigrants in a series of roughly 200 immigration jails and prisons across the country on any given day.¹⁴ Immigrants in detention have spoken out and protested their confinement individually and collectively.¹⁵ Their voices have the power to change policy, just as the suppression of their voices has the power to hinder those changes.

Claudio Rojas, a husband and father who was detained in a Florida immigration jail, organized a hunger strike and worked closely with activists to share the stories of other detained people with elected officials so that they could advocate for their release.¹⁶

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In 2012, this collective activism made national headlines and led to a congressional investigation into conditions of U.S. immigration detention.¹⁷ But years later, when a documentary film about this activism premiered at the Sundance Film Festival, Rojas was abruptly re-detained and deported.¹⁸ Numerous organizations condemned his deportation and championed his return, citing the chilling effect that retaliatory deportation has on those who speak out about the conditions of their detention. Those organizations summarized the importance of immigrant speech and the deleterious consequences of its chilling in an amicus curiae brief supporting Rojas:

A core part of amici's advocacy is amplifying the voices of immigrants, including noncitizens—by organizing public speeches, media interviews, and online campaigns in which immigrants tell their stories. . . . When the public and elected officials hear directly from those who have been marginalized, immigrant community members have the opportunity to contest

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misconceptions about immigrants and bring a human face to the immigration debate. This allows immigrants to be viewed as people, not just statistics. . . . [R]etaliatory enforcement . . . places a severe chill on amici's advocacy and on the willingness of immigrants to speak out on these important public issues. Limiting the public's ability to hear from people with first-hand experience of injustices imposed by the immigration laws and policies impoverishes the public discourse on immigration, diminishing the principle established at the founding of this country that "debate on public issues should be uninhibited, robust, and wide-open."¹⁹

The suppression of freedom of speech in immigration jails and prisons is a modern example of the kind of "double wrong" that Douglass condemned in the context of the movement to abolish slavery. Silencing people behind bars deprives them of a fundamental right while also robbing free people of their right to hear about experiences in immigration detention.²⁰ It is part of a broader pattern, as I have previously written, in which federal immigration officials have surveilled, fined, arrested, detained, and deported immigrant activists in retaliation for speaking out about the ills of U.S. immigration policy.²¹

This Essay examines the exercise and suppression of First Amendment rights in the context of the U.S. immigration detention system. By surfacing this history and drawing parallels to the exercise and suppression of abolitionist speech during the time of legalized chattel slavery, I hope to underscore the importance of protecting the voices of people challenging legalized constraints on liberty.²² In Part II, I describe the ways in which people in

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immigration jails and prisons have historically exercised their rights to freedom of speech. I explore historical examples of collective action, hunger strikes, protests, grievances, litigation led by detained immigrants, and the impact of these efforts on the movement to abolish immigration detention. In Part III, I describe how immigration jailers routinely suppress detained immigrants' speech, often through violent means. I explain and critique the federal government's attempts to justify this suppression in the name of safety and security. As abolitionists argued in the movement to end slavery, freedom of speech has the power to aid in the abolition of even the most entrenched systems of control.

II. The Exercise of First Amendment Rights in Immigration Detention

"We will continue our strike until we get results or until we die." — Gafoor Masoud, hunger striker²³

Resistance to slavery, like the resistance to carceral systems today, originated with those most directly impacted. Enslaved...