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DOJ’s ‘Prior Restraint’ Rule Silencing Immigration Judges Violates First Amendment: Lawsuit

The National Association of Immigration Judges (NAIJ) sued the Trump administration on Wednesday over a policy that prohibits immigration judges from speaking in their personal capacities about immigration law or policies.

The lawsuit, filed by the Knight First Amendment Institute at Columbia University in the U.S. District Court for the Eastern District of Virginia, claims that the restrictions impose an unconstitutional system of prior restraint on the judges’ protected speech.

A similar but less restrictive rule was first instituted in 2017 by the Executive Office for Immigration Review (EOIR) – the Department of Justice agency that oversees U.S. immigration courts – which required immigration judges who wished to speak publicly to first receive pre-approval on the content of the proposed speech. But in January, EOIR enhanced restrictions, “categorically prohibit[ing]” immigration judges from “speaking in their personal capacities about immigration law or policy or about EOIR programs or policies” while requiring pre-approval to speak on all other topics.

“The 2020 Policy imposes a prior restraint in violation of the First Amendment. As the Supreme Court has repeatedly held, people do not surrender their free-speech rights when they accept government employment,” the complaint stated. “They retain their rights, as citizens, to speak on matters of public importance, and the government can silence them only if it can show that its interest in doing so outweighs the employees’ interests in speaking and the public’s interest in hearing what they have to say.”

According to an email from EOIR’s director, a “good metric” for when the policy applied was whenever immigration judges were “speaking with more than one non-DOJ person about EOIR.”

The NAIJ argues that the government simply cannot satisfy the requirements to show that its interest in preventing immigration judges from engaging in free speech on issues of significant public concern is substantial enough to justify such sweeping restrictions.

The lawsuit, which was served on Attorney General William Barr and EOIR director James McHenry, also claimed that immigration judges have recently been banned from making any comments regarding the global pandemic and its effect on immigration courts and detainees–despite EOIR refusing to close immigration courts and announcing its intention to resume in-person hearings.

“These changes have already had, and will continue to have, profound implications for public health, but few immigration judges have felt free to speak out. As officers of the [NAIL], a handful of immigration judges have been able to speak out in their capacities as union representatives, given federal labor-law protections for union speech about employee working conditions. But hundreds more remain silenced,” the complaint continued.

“Part of the job of an immigration judge is to educate the public about the immigration courts and the role they play in society,” Judge A. Ashley Tabaddor, President of the NAIJ, said in a statement. “This policy prevents us from doing this critical work, undermining public understanding of and trust in the immigration courts in the process.”

The NAIJ and Knight Institute asked the court to find that the rule violates the First Amendment; they seek to enjoin the DOJ from continuing to enforce the policy.

See below for the full complaint:

2020.07.01_ECF-1_Complaint by Law&Crime on Scribd

[image via Ed Zurga/Getty Images]

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.