Immigration Judges Barred from Discussing Policy
🟠 Erosion of Democratic Norms ·
Jan 2020
Summary
In January 2020, EOIR issued a revised policy that went further than the 2017 speech restrictions, categorically prohibiting immigration judges from speaking or writing publicly about any topic related to immigration law, policy, or EOIR programs in their personal capacities. For all other subjects, judges were required to obtain advance agency approval, and the policy extended restrictions to published writings for the first time, covering print and online media alike. The revised policy also reclassified much personal-capacity speech as official-capacity speech, effectively placing it under agency control. This came as immigration courts faced a backlog of nearly 1.2 million pending cases and COVID-19 was creating serious health concerns in immigration detention facilities, yet judges were barred from commenting publicly on any of it. On July 1, 2020, the Knight First Amendment Institute filed suit in the Eastern District of Virginia on behalf of the NAIJ, arguing the policy was an unconstitutional prior restraint under the First Amendment and unconstitutionally vague under the Fifth Amendment. Donald Trump and the DOJ maintained the restrictions were within the government’s authority as employer to control official speech.
Key Figures
Institutions Involved
Sources
- Knight Institute - Margolin v. National Association of Immigration Judges
- Immigration Judges’ Union Sues Department of Justice for Gag Rule
- Revised Justice Department Policy Still Silences Immigration Judges