In new brief, Georgetown Law’s Institute for Constitutional Advocacy and Protection (ICAP) and the Knight First Amendment Institute at Columbia University explain why deportation in retaliation for protected speech violates the First Amendment
The First Amendment prohibits U.S. Immigration and Customs Enforcement’s (ICE’s) recent practice of targeting immigrants in retaliation for exercising their right to free speech, including on immigration policy, according to a friend-of-the-court brief filed in federal court today.
Georgetown Law’s Institute for Constitutional Advocacy and Protection (ICAP) and the Knight First Amendment Institute at Columbia University filed the amicus brief in support of Ravi Ragbir in the United States District Court for the Southern District of New York. Ragbir is a prominent immigrant rights activist who is seeking a preliminary injunction preventing ICE from deporting him to Trinidad & Tobago. He has not lived there for 25 years, and deportation would separate him from his wife, his daughter, and his longstanding community in New York City.
Although ICE could have sought Ragbir’s removal over a decade ago, it appears to have done so under circumstances suggesting that it is Ragbir’s First Amendment-protected activism, not his immigration status, that is motivating ICE’s conduct, the brief argues. Multiple immigrants’ rights organizations are also plaintiffs in the case, which seeks an injunction preventing Ragbir’s removal on this illegitimate basis as well as governmental retaliation against other activists for the exercise of their First Amendment rights.
“Voices like Mr. Ragbir’s have informed and energized a critical ongoing national debate over immigration,” said ICAP executive director Joshua Geltzer, a lawyer formerly at the National Security Council staff and the Department of Justice’s National Security Division. “Government retaliation against those speaking out offends the First Amendment. The tools of immigration enforcement are to be used to uphold the law, not to silence government critics.”
Today’s brief responds specifically to ICE’s troubling position that the law affords people in Ragbir’s circumstance no opportunity to assert their First Amendment rights. ICE’s view stems from its flawed interpretation of the 1999 Supreme Court decision in Reno v. American-Arab Anti-Discrimination Committee. That case addressed very different circumstances: the claims of non-citizens in the United States who were alleged to have provided material support to foreign terrorist organizations. The Supreme Court did not strip immigrants facing deportation of any chance to raise and attempt to vindicate their right to issue advocacy, the brief asserts.
ICAP and the Knight Institute further explain that, even if the Supreme Court’s decision in Reno were as broad as ICE claims, Ragbir’s case would fall within an exception preserved by the Supreme Court for “outrageous” government behavior. Because the government’s actions against Ragbir appear to have been caused by his exercise of core protected speech, because those actions were not justified by a legitimate government purpose, and because Ragbir’s case is part of larger pattern of viewpoint discrimination, the First Amendment bars ICE’s efforts at retaliatory removal.
“ICE’s emerging pattern of discriminatory and retaliatory removal of non-citizen activists burdens not only their own First Amendment rights, but also the rights of their community members—citizens and non-citizens alike—who want to hear what these activists have to say,” said Ramya Krishnan, a legal fellow at the Knight Institute.
The brief further argues that permitting ICE’s conduct to continue would enable that agency to wield the threat of deportation as a tool to suppress the speech of immigrants with whom the administration in power disagrees. It would also be at odds with our fundamental values as a nation: the United States regularly condemns other countries for targeted enforcement against protesters, government critics, and dissidents in other countries.
Founded at Georgetown Law in 2017, ICAP draws on its leadership’s extensive background in national security law and policy to defend American constitutional rights and values. ICAP has previously engaged in litigation to protect the speech rights of immigrant activists, including being part of a team successfully defending on appeal a lower court decision striking down as unconstitutional a Texas law that made it a crime for local elected officials to advocate against cooperating in enforcing federal immigration policy.
The Knight First Amendment Institute at Columbia University is a non-partisan, not-for-profit organization established by Columbia University and the John S. and James L. Knight Foundation to defend the freedoms of speech and press in the digital age through strategic litigation, research, and public education. Its aim is to promote a system of free expression that is open and inclusive, that broadens and elevates public discourse, and that fosters creativity, accountability, and effective self-government.