The National Law Journal
November 2, 1998
Palestinian Case Skirts Free-Speech Protection
By Marta E. Nelson
The case of Reno v. American-Arab Anti-Discrimination Committee 97–1252, to be argued before the Supreme Court Nov. 4, reviews whether an individual deserves prompt judicial review when asserting a First Amendment defense in response to the government’s prosecution. Its not a high-profile case, but the principle at stake is constitutional bedrock, and the case requires the court to fulfill its critical, if not always popular, role in our tripartite democracy.
In Reno, immigrants who are members of a faction of the Palestine Liberation Organization assert that they are being selectively prosecuted because of their political beliefs.
But, like all great First Amendment cases involving controversial parties, Reno is best examined by imagining a more innocuous plaintiff. Imagine a person arrested for jaywalking. Everyone jaywalks, but this person is the only one who has ever been arrested for it in the entire jurisdiction. With a little prodding, the police let him know why: They were told to arrest this person because he is a vocal supporter of a political cause that the government dislikes.
What would he do? Most likely, the minute he was brought before a judge he would tell the judge what the police had told him, and would argue that he had been selectively prosecuted- that he had been singled out from a whole host of other violators because of his public support of an unfavored political cause. The judge would listen to his claim, either then or in the course of adjudicating the jaywalking charge, and would decide whether the defendant had indeed been selectively prosecuted. Chances are, if the jaywalker could prove his claim, the judge would release him, and dismiss the charge against you as improperly motivated. The ex-defendant could return to his political activism, secure in the knowledge, that if he were arrested again, however annoying or inconvenient that might be, he would once again receive prompt judicial review.
A Very Fine Sieve
The immigrants in Reno were not so lucky. In their case, the Immigration and Naturalization Service, or INS, attempted to deport eight resident aliens for the immigration law equivalent of jaywalking – offenses such as taking too few credits while on a student visa. The INS has publicly admitted that the immigrants were singled out for deportation because of their
political activity. The service further admitted that it had not sought previously to deport immigrants who had committed such technical violations.
Yet, under the INS interpretation of the 1996 Illegal Immigrant Reform and Immigrant Responsibility Act, of IIRIRA, the targeted immigrants cannot receive the basic protection available in the jaywalking case: prompt judicial review of their claim of selective prosecution. Only after the deportation proceedings – which will take at least several years, given the INS’ legendary delays – will they be permitted to go before a judge to argue that they were improperly singled out for deportation in the first place.
The INS’ position contradicts long-standing Supreme Court jurisprudence, which is always recognized that when it comes to the First Amendment, justice delayed is justice denied. See Friedman v. Maryland, 380 U.S. 51, 58 (1965); and Elrod v. Burns, 427 U.S. 347, 373 (1976). In Friedman, the court wisely observed that merely instituting law enforcement proceedings against a person because of his or her exercise of First Amendment rights works a demonstrable harm, even if, after all is said and done, a court later finds that the enforcement proceedings were improper. The harm comes from what happens to free speech if there is a waiting period between the initiation of proceedings against an individual because of his speech and the time that a court is able to review these actions. During this period, the court reasoned, the targeted person will be afraid to engage in any controversial political activity for fear of bringing down even more charges upon his head. Additionally, the greater society will see that taking certain political positions can prove dangerous and will themselves to refrain from political speech. That is, a classic chilling of free speech will ensue.
Ice Age for Immigrants
Precisely such a chill has descended upon the immigrants and others in their community in this case. They have stopped reading political magazines, discussing political issues publicly and taking part in demonstrations and parades. What is more, they have been unable to engage in such activities for years, as deportation proceedings move so slowly.
It will not be popular for the Supreme Court to respect state decisis and hold in Reno that prompt judicial review of the immigrant’s selective prosecution is required, as it is in every other context. The immigrant’s organization has been accused of sponsoring terrorist attacks-and although there is no indication, that the targeted immigrants themselves have supported such acts, the pall of terrorism hangs over the immigrants and over the case. Of course, the unpopularity of the immigrants’ cause makes this case especially important. There has been very little public outcry over INS attempts to deny them prompt judicial review of their claim of selective prosecution. Congress and the President are not going to step in; indeed, it is Congress that passed the jurisdiction-limiting IIRIRA, and the executive branch that it attempting to deport
the immigrants.
This leaves the Supreme Court. Only the court can apply the principle that the First Amendment – which by its terms applies to all the people in the United States, not just to citizens – exist to protect the expression of all viewpoints, popular or not. Only the court can enforce the First Amendments protections despite – or perhaps because of – our government’s and our own inclination to shut down voices we do not want to hear. Our democracy needs this lone voice.
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ABOUT THE AUTHOR
Ms. Nelson, a staff attorney at the Brennan Center for Justice at New York University School of
Law, co-authored an amicus brief for Reno.