On The Case

Immigration judges’ union sues to block DOJ speech restrictions

(Reuters) - U.S. immigration judges contend they’ve been muzzled by the Department of Justice - and now they’re doing something about it.

The union, representing more than 460 immigration judges, sued three Department of Justice officials in federal court in Alexandria, Virginia, on Wednesday, challenging a policy edict from DOJ’s Executive Office for Immigration Review that allegedly bars almost all immigration judges from speaking in their personal capacity about immigration issues, including the operations of the courts they preside over.

The union’s lawyers at the Knight First Amendment Institute argue that the DOJ policy violates the judges’ First and Fifth Amendment rights. They’re seeking a preliminary injunction to block enforcement of the restrictive rules.

Immigration judges, as you may recall, are actually employees of the Justice Department, not members of the federal judicial branch. In 2017, according to the union’s complaint, DOJ’s Executive Office for Immigration Review instituted a requirement that all immigration judges (except for union representatives) obtain preapproval before speaking engagements, even on their own time. In 2020, DOJ tightened the restrictions, according to the complaint.

The latest rule “prohibits judges from publicly speaking or writing in their personal capacities about immigration and EOIR, and requires them to seek agency approval before publicly speaking or writing about any other matter of public concern.”

Immigration judges, the complaint said, have had to stop addressing bar associations, lawyers’ conferences, law schools and human rights organizations about their work and the role of immigration courts. Before the Trump administration imposed speech restrictions, the union suit said, immigration judges frequently made such appearances, which DOJ permitted as long as judges made clear that they were speaking in their personal capacity and not on behalf of DOJ’s immigration office. But under the new policies, the complaint alleged, immigration judges face reprimands or even removal from office if they speak or write issues of grave public concern. That restriction, the union said, has become even more egregious since the onset of the coronavirus pandemic, during which many immigration courts have continued to operate despite the risk of infection.

DOJ referred my request for comment about the union’s suit and injunction motion to the Executive Office for Immigration Review, which declined to comment.

The immigration judges’ injunction brief argued that DOJ’s policy violates the Fifth Amendment because it is unconstitutionally vague. But the meat of the union’s case is rooted in the First Amendment argument that DOJ’s prohibitions are an unconstitutional prior restraint on the judges’ speech.

DOJ’s policy is premised on the idea that all speech by immigration judges about immigration law or court operations is official speech that arises from judges’ duties as DOJ employees. The U.S. Supreme Court, of course, held in 2006’s Garcetti v. Ceballo (126 S.Ct. 1951) that public employees don’t enjoy the full protection of the First Amendment when they speak pursuant to their official duties. (In that case, the justices rejected retaliation claims by a longtime Los Angeles assistant district attorney who claimed he was denied a promotion because he had written a memo and testified as a defense witness about alleged prosecutorial misconduct.)

But the immigration judges’ brief contends that DOJ cannot simply restrict employees’ First Amendment rights by claiming their speech is related to their work. Citing the Supreme Court’s 2014 ruling in Lane v. Franks (134 S.Ct. 2369), the brief argued that the critical question is whether the speech itself – and not just the content of the speech – is part of a government employee’s official job.

“Commenting on immigration-related issues or EOIR policies in their personal time and away from the immigration courts is not ordinarily within the scope of immigration judges’ duties,” the brief said.

The government bears a heavy burden in restricting employees’ protected speech under the Supreme Court’s 1995 test in U.S. v. National Treasury Employees Union (115 S.Ct. 1003), the brief said. And here, DOJ’s interest in limiting speeches and writing by immigration judges is outweighed by the public’s profound interest in immigration issues.

I asked University of Minnesota law professor Heidi Kitrosser, an expert in free speech and government secrecy, about the immigration judges’ arguments. She agreed that DOJ can’t get around the First Amendment by defining all immigration-related speech by immigration judges as “official.”

“The case law does not work this way,” Kitrosser said. “An employee only speaks in their official capacity when they are actually speaking in the course of doing their job. All other speech, including speech on matters that relate to their work, is personal capacity speech that can only be restricted if the speaker and public interest in the speech is outweighed by the government’s interest in suppressing it.” The Supreme Court, Kitrosser said, has made clear that public employees have a crucial role in educating the public about their work.

That’s precisely what the immigration judges’ union says its members want to do.