On one hand, Obama applauds immigrant activists -- as a Texas case argues that unauthorized immigrants have no First Amendment rights

DOJ lawyers: Before telling a court free speech doesn't apply to a group of people in the US, check with your boss

Published May 14, 2015 10:58PM (EDT)

President Obama              (AP/Carolyn Kaster)
President Obama (AP/Carolyn Kaster)

On May 7, in a federal court in San Antonio, lawyers for the Department of Justice filed a brief arguing that unauthorized immigrants have no First Amendment rights. None.

It is a startling assertion, especially coming from the Obama administration. To state the government’s position another way, when immigrants protest for comprehensive immigration reform, for the Dream Act, or anything else on which they might have an opinion, federal authorities may censor them, and possibly punish them for their dissent.


The case is Pineda-Cruz v. Thompson, and it has not garnered much attention, probably because it is proceeding in the shadows of another immigration case in Brownsville, Texas, in which 26 states are challenging President Obama’s executive actions on immigration. I teach immigration law for a living, and when I first heard about the government’s arguments about immigrants’ free speech rights (or lack thereof), I thought it must be an exaggeration.

But it’s not. It’s right there on Page 11 of the Department of Justice Brief. Over the signatures of six DOJ lawyers, the Obama administration argues this: “As non-resident aliens who have not gained admission or entry to the United States … Plaintiffs are not entitled to prevail in a lawsuit challenging violations of the Constitutional protections of the First Amendment.”

The Pineda-Cruz case is about a petition circulated by mothers in a detention center, alleging that in retaliation for their protests against detention conditions, they were placed in isolation and threatened with having their children taken from them. That may or may not be the best way for the detention center to respond. If it must, the government can defend itself with more narrow arguments about the needs to maintain order in detention. But the DOJ lawyers went much further.

In their quest to allow immigrants to be silenced at the government’s convenience, the DOJ lawyers cited Supreme Court cases from 1904 and 1950, a period when the Court regarded federal government actions against immigrants to be generally beyond meaningful constitutional scrutiny. They neglected to mention that we do not live in that era any longer. Since 2001, the Supreme Court has been clear that the government’s immigration enforcement powers are subject to “important Constitutional limitations.”

Since freedom of speech is pretty important in our country, I have to hope that federal judges will see the problem with the government argument. But even if my hope is vindicated, one has to ask: Who are these DOJ lawyers representing?

The woman at the heart of this case, Delmy Pineda-Cruz, was first arrested for immigration violations in Chicago, the president’s hometown. Does President Obama believe that immigrants like her, in Chicago and everywhere else, do not have freedom of speech? If this is not what the president believes, and if this is not what Attorney General Loretta Lynch believes, then they should repudiate the argument that their lawyers have made in court.

There is considerable irony here. In the Brownsville case, DOJ lawyers are fighting to be able to implement the president's executive actions on immigration, which will grant a reprieve to millions of unauthorized immigrants. Meanwhile, in San Antonio, DOJ lawyers are arguing that these very same immigrants have no freedom of speech, and in fact, few if any constitutional rights.

This is not the first time the Obama administration has made arguments in court that seem to go against President Obama’s stated immigration policies. President Obama has explained his immigration enforcement strategy as targeting “felons, not families.” Yet, last year in the Supreme Court, his solicitor general defended a technical interpretation of the immigration law that has the effect of needlessly keeping immigrant families separated, potentially for decades. No one forced the administration to take that position.

These cases may simply be instances of government lawyers trying to make the strongest arguments they can to win a case, without thinking through the implications of what they are saying. The president probably does not know the details of the arguments that his government is making in district courts. But by allowing its lawyers to operate on autopilot, the Obama administration has missed a golden opportunity to change the culture of immigration enforcement in this country.

In November, President Obama came to Del Sol High School in Las Vegas to talk about immigration, and he applauded immigrant activists who had sent him letters and campaigned publicly for immigration reform, even though they lack a legal immigration status. So it is more than a little disappointing to see lawyers for the same administration argue that these immigrants do not enjoy freedom of speech.

So, perhaps  the attorney general should send a memo to all government lawyers: Before you tell any court that free speech or any other fundamental liberty somehow does not apply to a group of people in the United States, please check with your boss.

By Michael Kagan

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Related Topics ------------------------------------------

First Amendment Immigration Immigration Law Loretta Lynch President Obama The Constitution