RICHMOND, Va. — The United States Court of Appeals for the Fourth Circuit today affirmed a lower court ruling that let stand a Department of Justice policy prohibiting immigration judges from speaking or writing in their personal capacities about immigration law or policy and requiring them to obtain prior approval on a broad range of other topics. The Knight First Amendment Institute at Columbia University challenged the policy in 2020 on behalf of the National Association of Immigration Judges (NAIJ), arguing that it is an unconstitutional prior restraint in violation of the First Amendment.

In a brief, unsigned, and unpublished opinion, the court affirmed the district court’s decision, which held that NAIJ may not bring its First Amendment claim in federal court until it first goes through the administrative process set out in a federal labor relations statute. That process was established by Congress in 1978 to resolve highly specific bargaining disputes between unions and employers.

“Immigration judges shouldn’t have to go through a cumbersome labor relations process to vindicate their free speech rights. To state the obvious, the government’s gag order on immigration judges is not a collective bargaining problem—it’s a First Amendment problem,” said Ramya Krishnan, staff attorney at the Knight First Amendment Institute, who argued the case on behalf of NAIJ in the Fourth Circuit in January. “Forcing judges to bargain over their constitutional right to free speech only serves to silence them for longer.”

The NAIJ is a nonpartisan, nonprofit voluntary association that represents all nonmanagerial immigration judges in the United States. For years, members of NAIJ regularly spoke at conferences, guest lectured at universities and law schools, participated in immigration-law trainings, and spoke to local community groups, all in their personal capacities. But a policy issued by EOIR in 2017, and substantially revised in 2020, sharply curtailed the ability of immigration judges to speak publicly in their personal capacities. EOIR revised the policy again in 2021 following a review, but the policy’s central flaws remain.

“The public has an interest in understanding the immigration court system and the impact of recent changes on it,” said Mimi Tsankov, president of the National Association of Immigration Judges. “Many immigration judges wish to educate the public about these matters, but EOIR’s policy prevents them from doing so. By requiring judges to challenge the policy through the administrative process, the court has abdicated its duty to ensure that our free speech rights—and the public’s—are adequately protected. While we’re disappointed by the court’s decision, we plan to continue fighting to ensure the gag order is lifted.”

Because the opinion is unpublished, it will not constitute binding precedent in the Fourth Circuit. Read today’s decision here.

More on the lawsuit, NAIJ v. Neal, here.

Lawyers on the case include, in addition to Krishnan, Stephanie Krent, Alyssa Morones, and Alex Abdo of the Knight First Amendment Institute.

For more information, contact Adriana Lamirande, Knight First Amendment Institute, [email protected]