Free Speech

First Amendment Case Brought by Immigration Checkpoint Protesters/Monitors Can Go Forward

So holds the Ninth Circuit, in a case in which the Scott & Cyan Banister First Amendment Clinic, which I run, filed an amicus brief.


Yesterday, the Ninth Circuit handed down Jacobson v. U.S. Dep't of Homeland Security; my students Alexandra Gianelli, Emily Michael, and Tracy Yao and I filed an amicus brief in the case on behalf of the Cato Institute, and I'm pleased to say that the Ninth Circuit's decision was largely consistent with what we asked for. First, the facts:

Leesa Jacobson and Peter Ragan—as part of a group called People Helping People—want to protest near a near-border immigration checkpoint, and to monitor what happens at the checkpoint (including by videorecording it). But the Border Patrol has set up an enforcement zone around the checkpoint—including some neighboring sidewalks—that would require them to move 150 feet or more away. Jacobson and Ragan sued, claiming that the enforcement zone improperly intruded into a traditional public forum, and was enforced in a viewpoint-based way:

Several incidents led Appellants to believe that the enforcement zone policy was selectively enforced against them. The agents in charge stated in an email to Appellants and at a public presentation that agents on the scene are the ones who determine "who can enter into the perimeter" and "where [Appellants] can and can't be." On April 3, 2014, one of the Appellants saw a local resident arrive at the checkpoint area, park inside the enforcement zone, and remain inside the barrier for approximately 40 minutes. The local resident's wife also arrived and parked inside the barrier.

The local resident, who was known to be a supporter of the BP and an opponent of PHP, questioned and harassed the PHP protesters. BP agents did not ask the local resident to leave the enforcement area. As he departed, he shouted "Well, we had our fun today" to the BP agents on duty, who smiled and laughed. When the Appellants asked an agent at the checkpoint area if they had given the local residents permission to be in the enforcement zone, the agent replied, "It's a free country." When the agent in charge learned of this incident from Appellants' counsel on April 16, 2014, he directed watch commanders to discuss the incident with checkpoint agents and make clear that what had been done was unacceptable.

Subsequently, a surveyor hired by Appellants was allowed inside the enforcement zone. The agents on duty explained to the surveyor that "the barriers were in place only to exclude people who might interfere with Border Patrol activities, such as protestors." One agent invited the surveyor to share a meal with the agents on duty. On another occasion, BP agents allowed reporters and pedestrians to walk along the north side of the road through the enforcement zone during a PHP rally; but, on the same day, agents parked their vehicles so as to impede the PHP monitors from even viewing, much less entering, the enforcement zone….

The District Court concluded that DHS should win as a matter of law, but the Ninth Circuit remanded for further discovery:

Appellants identified several areas in which they sought discovery relevant to critical matters at issue in the summary judgment motion.

First, Appellants sought discovery regarding the law enforcement uses of the checkpoint area encompassed within the enforcement zone, including rules and regulations governing the use of the checkpoint area. These uses are relevant to the determination of whether the enforcement zone is a public or a nonpublic forum. Moreover, regardless of which level of scrutiny applies, they may be relevant to the ultimate constitutional question of whether the enforcement zone policy violates the First Amendment. The limited information in the record regarding the layout and use of the checkpoint area leaves many questions unanswered about the specific uses of areas outside the primary and secondary inspection zones. For example, evidence that large portions of the enforcement zone are unused for checkpoint activities would tend to create genuine issues of material fact as to whether the government has transformed the enforcement zone along Arivaca Road into a nonpublic forum and, if the area is still a public forum, whether the enforcement zone is narrowly tailored to the government's interest in operating a BP checkpoint.

Second, Appellants sought discovery about who has been allowed into the enforcement zone and why. This information could reveal whether the enforcement zone has been applied selectively based on viewpoint. The government's stated policy is that "pedestrians are allowed inside the checkpoint only for official purposes," but without the benefit of discovery Appellants have already adduced evidence that calls that policy into question. While BP has consistently excluded Appellants and other protesters from the enforcement zone, the record shows that other visitors who were not protesting have been allowed inside. Whether the enforcement zone is a public or a nonpublic forum, evidence that civilians friendly or neutral to BP have been permitted into the enforcement zone while other civilians with a hostile message have been excluded—beyond the incidents already in the record—would tend to create a genuine issue of material fact as to the viewpoint neutrality of the government's policy.

Finally, Appellants sought discovery of data regarding traffic stops at the checkpoint, in order to determine the accuracy of the data gathered by Appellants from their positions outside the enforcement zone. This information is relevant to whether Appellants have ample alternative opportunities for observation, as would be required to justify their exclusion from a public forum.

The limited record before the district court does not permit us to conclude, as a matter of law, that the enforcement zone is a nonpublic forum, or, if it is, that the government has satisfied the requirements for excluding Appellants from that nonpublic forum. On remand, and after appropriate discovery, the district court will need to determine if there remain genuine issues of material fact regarding whether, and what part of, the enforcement zone is a public forum, and whether the government's exclusion policy is permissible under the principles of forum analysis.

NEXT: Taylor Swift Decision: Copiers Gonna Copy, Copy, Copy

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. In a fantasy world, this would have some real effect, other than the BP cobbling together more nebulous horseshit excuses. But I am still interested in seeing them go through the exercise, if for nothing else than making life a little harder for them without their local friends and buddies stopping by for a government meal.

    1. I agree.

      Are there any consequences at all for this behavior? Surely the agents, or their bosses, ought to know this is a 1A violation.

      And, worse, what about those agents who were recorded pouring out water left in the desert for immigrants?

      1. I suspect part of the dynamic that creates this is all the court decisions holding that aliens have few constitutional rights and that ICE thus doesn’t have to follow normal constitutional restrictions that other agencies do.

        It’s only a short leap from that, in agents’ mind, to “the Constitution doesn’t apply to us”. Combine that with the normal attittude of police agencies that everything is about preventing terrorism and they can do anything they want when they are preventing terrorism, and you get this sort of violation.

        It would take a real reform of this area of constitutional law to rein ICE in and stop them from doing this stuff. And it’s a lesson for those who would like to draw sharp lines and categorically exempt certain forms of law enforcement from constitutional scrutiny.

      2. How is it a constitutional violation to dump water left unattended that aids illegal crossings?

        1. My guess is that it would be along the lines of someone who punctures the tyres of ambulances that exclusively service illegal aliens (this is a hypo, obviously). There are some rights that SCOTUS has said apply only to citizens. And others that apply to everyone in America. (You might agree or disagree with the wisdom of the last two sentences. But you do agree that they do accurately state the current understanding of the law, yes?)

          1. That’s why I specifically mentioned leaving the water unattended, which seems different from the ambulance example. Now if they set up a manned drink stand and provide free water (and like the kid who wants to set up a lemonade stand they also obtain the proper government permits lest the stand violate health and safety regulations because H2O is dangerous chemical), then I could see a possible violation if the BP dumps the water.

          2. FWIW, leaving things for later use isn’t generally allowed on public lands. People hiking the Appalachian or Pacific Crest Trails, for example, can’t cache supplies to pick up as they go; they have to go into town to a post office or a business that will hold packages.

            I don’t know the limits; I leave camp set up when I spend the day climbing a peak. But I’ve read in the fine print of the rules that caching things for later use is verboten.

            IANAL so I don’t know if that affects your legal analysis.

      3. “And, worse, what about those agents who were recorded pouring out water left in the desert for immigrants?”

        My wife is an immigrant, I can’t see any plausible circumstance under which that water would have been of benefit to her. Perhaps you meant illegal immigrants?

        My understanding is that the ICE leave handy radio beacons in the same desert, so that illegal border crossers who get in trouble can call for help. Said help involves being returned across the border, of course, but, why shouldn’t it?

        The water, by contrast, is intended to aid the illegal aliens without their ending up returned. It’s meant to facilitate a crime. I’m sure the ICE would be glad to take donations to place more of their radio beacons.

        1. It’s not a constitutional violation, just attempted homicide.

          OK, Brett, illegal immigrants. BFD. “Facilitate a crime?” Rationalize much?

          What do you think? It’s OK to let them die? Is there any limit to how much you hate these people? Beacons are helpful. So is water.

          Besides, the water is left by private groups, which should not offend your ideological sensibilities.

          1. It’s not rationalizing at all. The ICE’s radio rescue beacons save lives, so does the water.

            But the former save lives while furthering enforcement of the law, while the latter save them while furthering violation of the law. Putting water out there rather than radios is intended to rescue the people without their being captured. Because the people putting it there don’t just want to save lives. They want to save lives while undercutting border enforcement.

            I’d support drastically increasing the number of border patrol rescue beacons. Add food and water to them, too. Why can’t we agree on that?

          2. “attempted homicide”

            No its not. Its law enforcement.

            1. Yeah, a small number getting an arbitrarily doled out painful death penalty is what justice and order dictate!

              1. It’s homicide if the border patrol shoot you. It’s suicide if you go for a walk through the desert without proper preparation.

                Like I said, I’d support greatly increasing the number of Border Patrol rescue beacons, and even equipping them with food and water.

                1. It’s suicide if you go for a walk through the desert without proper preparation.

                  Perhaps we should ask ourselves why would someone risk their lives to enter our country? Could it be the alternative is worse? Perhaps a little understanding of their situation would tone down the outright hatred many Americans feel towards them and we can move forward with developing reasonable policies (and a wall isn’t reasonable).

                  1. Why do I get the feeling that your “reasonable policies” will include things like amnesty and very few to zero limits on immigration at all?

                  2. It’s hardly reasonable to dictate US policy on the basis of their sob stories (which inevitably drown out more important considerations).

                2. Brett Bellmore has taught me what a disaffected, socially awkward code writer, backoffice engineer, or third-shift desktop support tech sounds like when trying to emulate a well-adjusted, personable, decent human being.

                  He follows what he perceives to be all of the rules of human interaction he could pick up in non-technical classes but still sounds like a machine attempting to engage in conversation.

                  1. Huh, I’d have to rate that as fairly accurate. I’m a high functioning Asperger’s who spent decades learning to emulate normal human behavior, and my engineering office IS at the back of the plant, (Overlooking the tool room.) albeit more spacious than the CEO’s office.

                    I may be decent and well adjusted, but I’d never claim to be “personable”.

                    I’m, none the less, correctly identifying what’s going on here: The Border Patrol want to save lives while enforcing the law, and the people leaving the bottles of water want to save lives while undercutting the law.

                    The desire to save lives is not what distinguishes them.

                    1. That guy pouring water onto the desert was not trying to save lives, Brett.

                      I understand that you are frightened by a changing world, and that you are comforted by the familiar, in part because I also am comforted by the familiar. We appear to disagree on which elements of our world should be preserved and which should be improved or rejected.

                      But we should be able to agree on how to respond to a person pouring water onto the desert rather than leave it for someone whose life it might preserve, and that the proper response should not be chortling.

  2. Something wrong about a government agency that wants to their (dirty?) work in the shadows.

    1. We need to find a way to attract a better class of people to law enforcement.

      1. The way to do that is simple. Just hold all government agents liable when they screw up and end the drug war. Doing those two things will solve 90%+ of all of our problems with law enforcement.

        Note that I said it was simple. Not easy.

        1. Those two steps might constitute more than half of the journey. Weeding out the authoritarian, antisocial goobers would still be required, though.

          1. The antisocial goobers will likely head elsewhere if the drug war is ended. That is where they get their “reasoning” for being antisocial authoritarian goobers.

  3. The Border Patrol really should have the courage of their convictions. Let the open borders crowd whine and wail all they want.

  4. I’m guessing the concern here is not so much protest, but that illegal immigrants will be warned to avoid the checkpoint?

  5. The ‘clear liquid’ that is poured out may contain dangerous, even fatal, contaminants introduced to harm the invaders. Therefore law enforcement must pour it out to prevent possible harm to the criminal elements attempting to smuggle drugs, or attempting to sex traffic humans. This is clearly a humanitarian effort on the part of law enforcement. That is why they leave life saving radio equipment

    1. This must be the result when a socially awkward, intolerant, backward person attempts to emulate a decent human being in public discourse.

    2. You are an embarrassment to the United States.

    3. I often have trouble recognizing sarcasm, especially when in written snippets on the internet. We really need a sarcasm font.

      The fact that, despite that, even I could recognize Longtobefree’s comment as sarcasm but AK and bernard apparently could not says a lot more about the two of them than it does about Longtobefree.

      1. Sarcasm in service of how hilarious it is to withhold water from ‘the invaders.’

        We all get it. It’s just still awful.

      2. even I could recognize Longtobefree’s comment as sarcasm

        This is a curious observation about a group of Conspiracy commenters who advocate retrieval of the franchise from women; defend torture; propose limiting voting rights to landowners; and claim that libertarianism is congruent with the drug war, criminalization of abortion, nativist immigration restrictions, pre-emptive invasions, abusive policing, government discrimination against gays, massive military spending, militarization of police, and limitless special privilege for superstition-related claims.

        Did you similarly recognize that The Man Of Many Names or Brett Bellmore were kidding about everything from disenfranchising women to birtherism?

  6. Now interfering with law enforcement is a possible 1A violation. Fantastic.

    1. Find the silver lining, Bob. Now Trump has a defense against obstruction charges.

Please to post comments