Tag: border

One of the most Orwellian stories in American history — where telling people about their rights and urging them to speak out became a thoughtcrime — was that of the socialist Eugene Debs. 

Debs was sentenced to 10 years in prison for criticizing U.S. involvement in World War I and for telling Americans about their constitutional right to protest the draft. The Supreme Court infamously ruled his speech posed a “clear and present danger.” Today, that ruling is widely regarded as a grave violation of free speech and a stain on the history of American justice.

Last week, Congresswoman Alexandria Ocasio-Cortez wrote a letter asking Attorney General Pam Bondi if she is now under investigation for telling people their constitutional rights when interacting with Immigration and Customs Enforcement (ICE) officers.

She asked because President Trump’s border czar Tom Homan said he recently asked the Department of Justice whether Ocasio-Cortez is “impeding our law enforcement efforts” by putting out a webinar and a flyer in which she reminded anyone interacting with ICE that they need not open the door, speak, or sign anything, among other basic rights. 

 

 

 

Informing people about their constitutional rights is plainly lawful and any effort to punish Ocasio-Cortez for doing so would unquestionably violate the First Amendment. 

This isn’t a hard case or a close call. As my colleague Aaron Terr has pointed out, “This intimidation tactic is likely to discourage others from simply educating people about their fundamental rights.”

But what is the line between protected speech and obstruction? The answer is that the Constitution protects a significant amount of expression, including abstract advocacy of unlawful acts, providing information about the presence of law enforcement officers, and promoting civil disobedience.

Free speech protects discussing illegal behavior

The Supreme Court has repeatedly explained that “the mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it.” It has long distinguished between “the mere abstract teaching … of the moral propriety or even moral necessity” of violating the law and the actual incitement of lawless action. Only the latter is unprotected by the First Amendment. This is a high bar that requires speech to be “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” 

This is true even for speech advocating unquestionably unlawful behavior. For instance, in United States v. Williams, the Court held that “abstract advocacy” related to child pornography, such as the phrase “I encourage you to obtain child pornography,” was protected speech. And in Hess v. Indiana, the Court found that an anti-war protester urging his comrades to “take the fucking street again” was not sufficiently imminent to fall into the incitement exception. 

But the most directly relevant example is the 2023 case United States v. Hansen, when the Court decided a law that criminalized encouraging illegal immigration was not unconstitutionally overbroad. FIRE and the Rutherford Institute wrote an amicus brief warning that the law, if interpreted broadly, could penalize speech urging civil disobedience.

In upholding the law, the Court interpreted its scope extremely narrowly to apply only to “the intentional solicitation or facilitation of … unlawful acts” — not to “abstract advocacy or general encouragement” — and it left the door open for further First Amendment challenges if the law was applied to constitutionally protected advocacy.

In other words, the Supreme Court recognized that advocacy like Ocasio-Cortez’s is clearly protected. Indeed, even more pointed advice on how to avoid arrest by ICE would also be protected. Only speech that intentionally directs an individual to engage in a specific illegal act crosses the line.

Warning people about the presence of law enforcement is also protected

The First Amendment also generally protects telling people that ICE is in a certain area, even if that allows people to evade ICE or other law enforcement. For example, in Friend v. Gasparino, the U.S. Court of Appeals for the Second Circuit held that the First Amendment protected a man standing on a sidewalk with a “Cops Ahead” sign. As the Supreme Court has said, someone “might constitutionally be punished under a tailored statute that prohibited individuals from physically obstructing an officer’s investigation,” but “he or she may not be punished under a broad statute aimed at speech.”

This isn’t to say speech can never constitute obstruction of law enforcement. In limited circumstances, such as when speech is integral to the underlying crime like a robber demanding “your money or your life,” or someone in a criminal conspiracy warning his co-conspirators how to evade arrest, speech can lose First Amendment protection. Also, if someone is physically obstructing officers or refuses to leave when lawfully instructed to do so, that person’s actions won’t become protected even if those actions include otherwise protected speech. 

But in general, warning people about law enforcement is constitutionally protected.

Advocating civil disobedience is a historically important form of free speech

Homan’s remarks and actions are particularly disturbing because they could chill speech encouraging civil disobedience, which has played a vital and noble role in American history — from the Boston Tea Party and the abolition of slavery to women’s suffrage and the civil rights movement and beyond. 

It could even be said that there is nothing so quintessentially American as advocating for civil disobedience — and nothing more un-American than efforts to censor it.