Immigration Judges Push for 4th Circuit Approval to Challenge Free Speech Restrictions

Federal immigration judges argued in an appeals court on Wednesday that they should be allowed to sue the government over a policy restricting their ability to express personal opinions on immigration matters.

A panel from the Fourth Circuit is deliberating on whether the judges’ constitutional challenges should proceed through the court system or be directed to a merit board. The National Association of Immigration Judges claims that a 2021 policy violates their free speech rights. These judges, appointed by the U.S. Attorney General, oversee deportation cases.

The policy, established by the U.S. Department of Justice’s Executive Office for Immigration Review, mandates that judges obtain approval before commenting on immigration issues in an official capacity. It also prohibits them from sharing personal views, a restriction the judges argue hampers their professional engagement and academic contributions.

The lengthy approval process has resulted in missed opportunities for judges to publish articles or conduct educational courses related to immigration issues. They criticized the policy as a “gag order” that limits public servants in their capacity to inform the public about the immigration system amidst ongoing national debates.

U.S. District Judge Leonie Brinkema previously dismissed the judges’ claims in September 2023, stating that the U.S. Merit Systems Protection Board should address their complaints as they pertain to federal employment conditions.

In November 2023, the Fourth Circuit agreed to hear the judges’ appeal. Ramya Krishnan, representing the judges from the Knight First Amendment Institute at Columbia University, asserted that the lower court’s ruling would force judges into an administrative process that might prevent them from raising their claims in federal court.

According to Krishnan, under the Civil Service Reform Act, only those challenging certain adverse employment actions can seek judicial redress following an administrative ruling. She emphasized that the judges’ situation presents significant constitutional questions and should be reviewable in federal court.

U.S. Circuit Judge Toby Heytens expressed skepticism regarding the judges’ arguments, referencing the Supreme Court’s 2011 ruling in Elgin v. Department of Treasury. This ruling established that federal employees must exhaust administrative remedies before pursuing judicial review, regardless of the constitutional issues involved.

Krishnan maintained that the judges are confronting a “here-and-now injury” as the policy instills a “chilling effect,” compelling them to self-censor for fear of consequences. Meanwhile, U.S. Circuit Judge Pamela Harris questioned whether pre-enforcement challenges are feasible, citing the difficulty of addressing speech restrictions merely after the fact.

Judge Harris pointed out that a broad speech restriction would raise significant constitutional concerns, further complicating the dialogue about permissible limitations on judicial speech. Jennifer Utrecht, representing the U.S. Department of Justice’s Civil Division, acknowledged the complexities surrounding speech-limiting regulations but argued that there are established channels for raising such issues through enforcement proceedings or special counsel processes.

The panel, completed by U.S. Circuit Judge Nicole Berner, will weigh these arguments before making its determination.