The DOJ is trying to bully immigration lawyers. First, they’ll have to overcome the First Amendment

Published: 
Friday, May 19, 2017
In America, people have a right to receive information from lawyers, and lawyers a right to give information to people in need of it.
Unfortunately, our government has a long history of using professional regulations to clamp down on lawyers exercising this First Amendment right.

Earlier this month, for example, the Department of Justice (DOJ) attempted to bully Northwest Immigrant Rights Project (NWIRP)—the leading provider of free legal services to immigrants in Washington— by saying their lawyers had to agree to full representation of every immigrant they help.

This is a heartless, ridiculous demand that would severely limit the number of immigrants NWIRP helps. Also, it’s unconstitutional.
The ACLU of Washington filed a friend of the court brief supporting NWIRP’s legal challenge to the DOJ, and on Wednesday, U.S. District Court Judge Richard Jones granted NWIRP’s motion for a temporary restraining order.

The TRO preserves the status quo, and has nationwide effect, so for now NWIRP and every immigrant-rights nonprofit in America can continue to provide legal help to people who need it.

In his ruling, Jones said NWIRP showed that the government’s demand violated the nonprofit’s constitutional rights. But it’s what he said about the DOJ’s sudden enforcement of a nine-year-old rule designed to prevent immigrants from being exploited that really stands out.
Because the DOJ has yet to enforce the rule on anyone else, NWIRP was “potentially targeted” by the DOJ’s directive, Jones said.

In other words, there exists the possibility that Jeff Sessions is intentionally going after NWIRP, a group of lawyers who happen to be very, very successful at using their free-speech rights to help immigrants.

Shocking, we know.

The ACLU was founded in a fight for free speech nearly 100 years ago. Since then we’ve seen many attempts by government to use professional conduct rules to silence lawyers sharing information and legal advice with people who need it.

For example, in the 1970s, South Carolina had a policy of requiring some women to undergo sterilization as a condition of receiving Medicaid. Edna Primus, a lawyer volunteering for the ACLU, met with women who had undergone or were facing sterilization to inform them of their rights under the Constitution and to suggest the possibility of a lawsuit. 
 
For this, Primus was disciplined, but the U.S. Supreme Court ultimately overturned the reprimand, declaring that her effort to find and represent women whose constitutional rights were jeopardized was protected by the First Amendment.
 
In its decision, the Supreme Court said that because there’s a danger the government could use selective enforcement of broad rules to censor speech, and because First Amendment freedoms need “breathing space” to survive, the government can only regulate lawyers with “narrow specificity.”
 
The Court also noted that when free-speech rights have involved the freedom of association characterized by nonprofit organizations like the ACLU and the NAACP, courts have defended them especially vigorously.
 
NWIRP, a nonprofit that has offered free legal help to immigrants for more than 30 years, now joins the long, storied list of organizations that have been reprimanded by the government simply for using their First Amendment rights to associate and share information with people in need.
But the law, and the full firepower of the ACLU, is on NWIRP’s side. Since the 1960s, the Supreme Court has repeatedly and consistently recognized that free-speech rights are both vital to society and vulnerable to suffocation by a government wielding broad rules.

Whatever Jeff Sessions intends to do as Attorney General, restricting free speech is no way to do it. The First Amendment isn’t first for nothing.