Regulatory Constitutional Law: Protecting Immigrant Free Speech Without Relying on the First Amendment

• Publication year: 2022

Regulatory Constitutional Law: Protecting Immigrant Free Speech Without Relying on the First Amendment

Michael Kagan
University of Nevada, Las Vegas, michael.kagan@unlv.edu

Regulatory Constitutional Law: Protecting Immigrant Free Speech Without Relying on the First Amendment

Cover Page Footnote

Michael Kagan (B.A., Northwestern University; J.D., University of Michigan Law School) is Joyce Mack Professor of Law at the University of Nevada, Las Vegas, William S. Boyd School of Law. I am grateful to Jason Cade and Alina Das for thoughtful comments on earlier drafts.

[Page 1417]

REGULATORY CONSTITUTIONAL LAW: PROTECTING IMMIGRANT FREE SPEECH WITHOUT RELYING ON THE FIRST AMENDMENT

Michael Kagan^*

The Supreme Court has long deprived immigrants of the full protection of substantive constitutional rights, including the right to free speech, leaving undocumented immigrants exposed to detention and deportation if they earn the government's ire through political speech. The best remedy for this would be for the Supreme Court to reconsider its approach. This Essay offers an interim alternative borrowed from an analogous problem that arises under the Fourth Amendment. Under the Constitution, the Supreme Court has indicated that illegally obtained evidence may be suppressed in a removal proceeding only if the Fourth Amendment violation was "egregious." Yet, some circuit courts have indicated that a regulation protecting immigrants from unjustified arrests and interrogations offers an autonomous, and potentially stronger, basis for suppressing evidence, suggesting that regulations may protect constitutional rights even where the Supreme Court has declined to fully enforce the Constitution. Using the Fourth Amendment example as an analogy, this Essay will propose regulations that would protect immigrants from selective prosecution for engaging in free speech, thus filling a gap left by the Supreme Court.

[Page 1418]

Table of Contents

I. Introduction.............................................................1419

II. The Problem: Immigrant Free Speech Under the Constitution............................................................1420

III. The Analogy: Unreasonable Search and Seizure in Immigration Regulations.....................................1426

IV. Applying the Analogy to the Problem...............1429

V. Conclusion...............................................................1431

[Page 1419]

I. Introduction

When seeking to protect civil liberties, the Constitution is not the only place to turn. For immigrants, it is often the least helpful. In this Essay, I address the vulnerability of immigrant activists to repression by the federal government in the form of deportation. While the government cannot directly censor speech just because the speaker is undocumented,¹ the government can potentially target the speaker for deportation.² To do so removes a dissenter from the country and warns anyone else who might speak out that they can be similarly targeted.

This vulnerability is alarming because immigrant speech is central to the immigrant rights movement and public discourse about immigration policy. To be clear, no one's free speech should require any special justification. Everyone should have this freedom protected. But it is important to articulate what is at stake. Political movements depend on storytelling, symbols, and, most importantly, people. The immigrant rights movement is strongest when immigrants are at its center—when their stories and their opinions set the agenda. Other people can and should certainly add their voices. But nonimmigrants can only speak on the issue in the abstract or through secondhand stories. It is not the same.

For all these reasons, if anyone in the Department of Homeland Security ever wants to suppress the movement for immigrant rights, it would be smart to try to silence the immigrant activists at the movement's heart. This would be a form of speaker discrimination in which the government targets people not only for what they say, but also for who they are.³ While citizens and (maybe) legal permanent residents would still be able to speak freely in favor of undocumented immigrants, impacted people themselves could easily be shut out. They would be talked about but

[Page 1420]

rarely heard from. In the process, the movement would be weakened considerably. Alarmingly, that might not be terribly difficult for the government to do under present law. The Supreme Court has (mostly) foreclosed selective prosecution defenses in deportation cases. Therefore, Immigration and Customs Enforcement (ICE) could launch a fairly open campaign against visible immigrant organizers and leaders and might succeed at scaring many back into the shadows.

In this Essay, I attempt to offer a partial, inadequate, but nevertheless meaningful remedy: a regulation. In an attempt to bolster immigrants' First Amendment freedoms, I borrow from the Fourth Amendment context. There are already regulations in place that limit custodial interrogations and arrests by ICE with potentially more accessible enforcement than the Fourth Amendment has on its own.⁴ The Biden Administration has specifically indicated that it opposes selective enforcement for expressive activities.⁵ It should put this policy into a binding regulation to leave immigrant activists less vulnerable to reprisals for their free speech now or by a future administration.

II. The Problem: Immigrant Free Speech Under the Constitution

From one perspective, undocumented immigrants in the United States have robust freedom of speech—the same freedom enjoyed by every citizen. The government cannot assert prior restraint against a newspaper op-ed because the author happens to lack a proper visa. There is no separate rule about what constitutes incitement if the speaker is a noncitizen. An immigrant can walk into a courthouse with a jacket that says, "Fuck the Draft," the same as any American citizen can. It does not matter if the Pentagon Papers were leaked to a reporter who lacked papers. There is one First Amendment, and it is for everyone.

[Page 1421]

Sort of.

From another perspective, undocumented immigrants have nearly no free speech rights at all. Or more precisely, they only have as much freedom to speak as the Executive Branch allows them to have. That is because a government wishing to repress the speech of undocumented immigrants need not resort to the traditional tools of direct censorship against which the First Amendment offers a direct defense. Instead of censoring speech directly, the government can just remove the speaker. After all, undocumented immigrants are, by definition, prima facie removable under the Immigration and Nationality Act.⁶

Perhaps the most important fact about immigration enforcement in the interior of the United States is that there are far more potentially removable immigrants here than ICE could possibly arrest, detain, or deport. As a result, setting enforcement priorities—and exercising prosecutorial discretion to deport or not deport certain immigrants—is arguably the most decisive policy choice to be made regarding undocumented immigrants inside the United States.⁷ As a simple matter of mathematical odds, an undocumented immigrant stands a good chance of avoiding deportation at any given time simply because there are many more potentially deportable immigrants than ICE has the capacity to arrest, detain, and remove. But that also means that an undocumented immigrant would likely consider it rational to keep a low profile to avoid becoming a target.

Consider the 2022 dispute over Jamal Simmons, who had been recently hired as a communications aide to Vice President Kamala Harris. More than a decade earlier, Simmons tweeted: "Just saw 2 undocumented folks talking on MSNBC. One Law student the other a protester. Can someone explain why ICE is not picking them up?"⁸ He was forced to apologize for a remark that suggested, at least, a cavalier approach to deportation. The people he saw on television

[Page 1422]

were prominent undocumented activists Erika Andiola and Cesar Vargas.⁹ Andiola accepted Simmons's apology.¹⁰

This relatively minor political incident highlights two critical facts about immigrant speech. First, the visible appearance of undocumented activists in the public arena is extremely important for immigrant rights advocacy. The voices of impacted people are critical in any movement for policy change. In advocacy, it is not just what is said that matters. The identity of the speaker also impacts the message and its potency.¹¹ First Amendment doctrine has embraced this reality. In City of Ladue v. Gilleo, the Supreme Court wrote,

A sign advocating "Peace in the Gulf in the front lawn of a retired general or decorated war veteran may provoke a different reaction than the same sign in a 10-year-old child's bedroom window or the same message on a bumper sticker of a passing automobile.¹²

But then there is the second reality highlighted by Simmons's offensive tweet. How can undocumented immigrants speak out if their survival in the United States depends on not attracting attention? Simmons's tweet seemed to assume ICE would or should target any deportable immigrant who simply appears on its radar. Such an approach would not even require any intention to repress immigrant rights activists. If mere visibility were enough to put an immigrant at risk, then this alone would likely be enough to keep immigrants from appearing on cable news or writing an op-ed. But that is just the start for an undocumented immigrant who speaks out in favor of immigration reform. Quite likely, she is not just making herself visible. She is also likely to visibly criticize the precise government agency that would have to decide whether to

[Page 1423]

target her for arrest. The risk of retaliation here seems especially high, and some ICE retaliation cases of exactly this type have happened.¹³

Standard First Amendment law should offer at...