Some of the sharpest critics of the Trump administration’s immigration policies are the former immigration judges who were once charged with enforcing them. But there’s a reason many of those judges speak up only once they’ve left the bench.
A policy issued by the Justice Department in 2017 effectively prevents immigration judges—and their colleagues at the Executive Office of Immigration Review (EOIR)—from speaking publicly about their work. In response to a records request, the Knight First Amendment Institute obtained the policy and in January sent a letter to the agency explaining why it was unconstitutional. Less than two weeks later, the agency issued a revised policy, which we have obtained and are releasing today. Unfortunately, the revisions only make things worse.
As it currently stands, the policy requires all EOIR employees to obtain supervisory approval before speaking or writing in their personal capacities. The problem with this policy (and its previous incarnation) is that government employees do not forfeit their free speech rights upon entering the federal workforce. They retain the right to speak out as citizens on matters of public importance, and the government can silence them only if it can show that their speech would interfere with the government’s operations so significantly that it would outweigh both the employees’ interests in speaking and the public’s interests in hearing what they have to say. The 2017 policy failed that test, for the reasons we explained in our letter. The policy issued in January fares no better. In nearly every way, it is even more restrictive than its predecessor.
First, the revised policy sweeps in much more speech. While the original policy applied only to “speaking engagements,” the revised policy applies also to “written pieces intended for publication in any print or online media.” Immigration judges and other EOIR employees must seek agency approval nearly every time they wish to write or speak publicly.
Second, the revised policy now treats much personal-capacity speech (which is protected by the First Amendment) as official-capacity speech (which isn’t). It defines official-capacity speech as any speech relating to “immigration law or policy issues, the employee’s official EOIR duties or position, or any agency programs and policies.” It also states that although senior EOIR employees are not categorically prohibited from speaking at an engagement in their personal capacity, most invitations to do so “are necessarily invitations to speak in an official capacity.”
Because the First Amendment does not protect official-capacity speech, the Justice Department’s attempt to expand its definition is really an attempt to suppress more protected speech. But as the Supreme Court recently held, the dividing line between personal and official speech is whether the speech is within the scope of an employee’s job duties, not whether the subject matter of the speech relates to her employment or whether the employee is senior within her organization. Here, the agency is attempting to redefine protected personal speech as unprotected official speech.
Third, the new policy makes the process for preapproving speech even more onerous than before. As originally drafted, the policy required employees to seek supervisory approval for all personal-capacity speaking engagements, and instituted a second level of review for speaking engagements related to immigration. The agency now requires an employee to submit to four levels of review: an initial review by their supervisor, a review by the agency’s centralized speaking engagement team, a review by the agency’s ethics program, and a second, final review by their supervisor.
This new process creates more opportunities for abuse and delay. The policy doesn’t set time limits for any stage of review, meaning that an employee’s request could languish for weeks while ostensibly being reviewed by the ethics program, or that a recommendation to issue final approval could sit in a supervisor’s inbox until long after the event has taken place. The policy also gives supervisors unfettered discretion to approve or deny requests, both at the first and last stage of review.
Even if the agency could point to a legitimate interest in restraining speech—and, to be clear, it hasn’t yet publicly explained why it believes this policy is necessary or what problems the policy is meant to address—the policy sweeps too broadly. It applies to nearly all public speaking and writing in an employee’s personal capacity. And it empowers officials to “roam essentially at will,” granting or denying permission to speak according to their whims.
The risk that this policy silences protected speech isn’t just hypothetical. Last week, my colleague Cristian Farias (the Knight Institute’s writer-in-residence) wrote about the chilling effect of the 2017 policy in The Atlantic. As Farias explained, organizations like the Federal Bar Association, American Immigration Lawyers Association, and Human Rights First used to be able to count on the expertise of immigration judges at their events and trainings. No longer. Judges have even been prevented from talking to law students and officiating naturalization ceremonies.
The Supreme Court has long recognized that “[g]overnment employees are often in the best position to know what ails the agencies for which they work” and that “public debate may gain much from their informed opinions.” Since the Justice Department’s policy was first issued, debates about the fairness, integrity, and independence of our immigration system have only become more urgent. Yet the voices of those who work within that system have been muted. EOIR employees have a right to speak, and the public has a right to hear them. The Justice Department must rescind its unconstitutional policy.
Stephanie Krent is a legal fellow at the Knight First Amendment Institute.