Excerpted From: Alina Das, Immigration Detention and Dissent: The Role of the First Amendment on the Road to Abolition, 56 Georgia Law Review 1433 (2022) (193 Footnotes) (Full Document)


AlinaDas“Slavery cannot tolerate free speech. Five years of its exercise would banish the auction block and break every chain in the South.”-- Frederick Douglass

“[I]f the United States is to build a more just and humane immigration system, immigrants themselves must be able to speak up. We are the only ones who can be whistleblowers inside the detention system.”--Claudio Rojas

On December 3, 1860, to mark the one-year anniversary of abolitionist John Brown's burial, a group of people gathered at a public hall in Boston, Massachusetts, to discuss how slavery could be abolished. A mob violently disrupted the gathering, and the mayor ordered the meeting cancelled. Abolitionist Fredrick Douglass condemned both the mob and the mayor for a betrayal of free speech. “No right was deemed by the fathers of the Government more sacred than the right of speech. It was in their eyes, as in the eyes of all thoughtful men, the great moral renovator of society and government,” Douglass explained. It is a right that belongs to all speakers and “does not depend upon where he was born or upon his color.” Suppression of speech is “a double wrong” because it attacks not only the right to speak but also the right to listen. Douglass believed that the truth about slavery had the power to bring about its demise; therefore, it came as no surprise to Douglass that the attack on abolitionist speech was led by “men who pride themselves upon their respect for law and order.” “Theirs was the law of slavery.”

Abolitionist demands eventually ushered in a new era in which slavery was delegalized, except as punishment for crime. As many scholars have written, the remnants of illegal and legal slavery survived and morphed into new systems of “law and order” in the United States that have relied heavily on imprisonment to target communities of color. A new abolition movement focuses heavily on dismantling these carceral systems. And once again, in the name of “law and order,” the voices of people most directly impacted by these systems are suppressed.

These dynamics of abolitionist speech and suppression are unfolding within the movement to abolish the U.S. immigration detention system. The United States operates the largest immigration detention system in the world, detaining tens of thousands of immigrants in a series of roughly 200 immigration jails and prisons across the country on any given day. Immigrants in detention have spoken out and protested their confinement individually and collectively. Their voices have the power to change policy, just as the suppression of their voices has the power to hinder those changes.

Claudio Rojas, a husband and father who was detained in a Florida immigration jail, organized a hunger strike and worked closely with activists to share the stories of other detained people with elected officials so that they could advocate for their release. In 2012, this collective activism made national headlines and led to a congressional investigation into conditions of U.S. immigration detention. But years later, when a documentary film about this activism premiered at the Sundance Film Festival, Rojas was abruptly re-detained and deported. Numerous organizations condemned his deportation and championed his return, citing the chilling effect that retaliatory deportation has on those who speak out about the conditions of their detention. Those organizations summarized the importance of immigrant speech and the deleterious consequences of its chilling in an amicus curiae brief supporting Rojas:

A core part of amici's advocacy is amplifying the voices of immigrants, including noncitizens--by organizing public speeches, media interviews, and online campaigns in which immigrants tell their stories .... When the public and elected officials hear directly from those who have been marginalized, immigrant community members have the opportunity to contest misconceptions about immigrants and bring a human face to the immigration debate. This allows immigrants to be viewed as people, not just statistics .... [R]etaliatory enforcement ... places a severe chill on amici' s advocacy and on the willingness of immigrants to speak out on these important public issues. Limiting the public's ability to hear from people with first-hand experience of injustices imposed by the immigration laws and policies impoverishes the public discourse on immigration, diminishing the principle established at the founding of this country that “debate on public issues should be uninhibited, robust, and wide-open.”

The suppression of freedom of speech in immigration jails and prisons is a modern example of the kind of “double wrong” that Douglass condemned in the context of the movement to abolish slavery. Silencing people behind bars deprives them of a fundamental right while also robbing free people of their right to hear about experiences in immigration detention. It is part of a broader pattern, as I have previously written, in which federal immigration officials have surveilled, fined, arrested, detained, and deported immigrant activists in retaliation for speaking out about the ills of U.S. immigration policy.

This Essay examines the exercise and suppression of First Amendment rights in the context of the U.S. immigration detention system. By surfacing this history and drawing parallels to the exercise and suppression of abolitionist speech during the time of legalized chattel slavery, I hope to underscore the importance of protecting the voices of people challenging legalized constraints on liberty. In Part II, I describe the ways in which people in immigration jails and prisons have historically exercised their rights to freedom of speech. I explore historical examples of collective action, hunger strikes, protests, grievances, litigation led by detained immigrants, and the impact of these efforts on the movement to abolish immigration detention. In Part III, I describe how immigration jailers routinely suppress detained immigrants' speech, often through violent means. I explain and critique the federal government's attempts to justify this suppression in the name of safety and security. As abolitionists argued in the movement to end slavery, freedom of speech has the power to aid in the abolition of even the most entrenched systems of control.

[. . .]

Abolitionists' resistance to slavery depended on the exercise and protection of their freedom of speech against robust private and public attempts to suppress their messaging. The same is true in the context of today's movement to abolish immigration detention. People in detention have continued to organize for freedom, and the channels for amplifying their voices have never been greater. These efforts are dampened by suppression and retaliation, both inside and outside of immigration jails and prisons.

Recent strides in the protection of immigrants' First Amendment rights give hope for change. After many deportations of prominent immigrant rights activists like Montrevil and Rojas, advocates brought these issues into the national debate. In the lead-up to the 2020 presidential election, the Democratic Party committed to ending retaliation against immigrant activists as part of its national platform. Protection against retaliation was a prominent policy demand during the early months of the Biden Administration, with civil rights complaints and reports demanding the protection of immigrant activists' First Amendment rights. In September 2021, the Secretary of the Department of Homeland Security issued a memorandum stating that “[a] noncitizen's exercise of their First Amendment rights also should never be a factor in deciding to take enforcement action.” That same year, targeted activists and their legal teams were able to secure the return of Montrevil and Rojas and the cessation of efforts to deport Mora-Villalpando and Ragbir.

These initial efforts to recognize the importance of immigrant organizing hold great promise. Yet they remain too limited--many activists deported over the last several years remain deported, including detention whistleblowers like Keita and Mendoza Garcia. And as the recent 2021 and 2022 civil rights complaints from detention demonstrate, First Amendment rights continue to be suppressed in immigration jails and prisons. The burden of retaliation continues to fall heavily on those who choose to speak out, and the public continues to be deprived of an opportunity to understand fully the institution of immigration detention.

Just as the institution of slavery thrived on the silencing of enslaved people, so too does the institution of immigration detention thrive on the silencing of detained people. In the words of Frederick Douglass, freedom of speech is “the great moral renovator of society and government.” To immigration detention abolitionists, freedom of speech is a critical right that must be protected.

Professor of Clinical Law, New York University Law School.