Immigration judges are suing the Trump administration over a gag rule, saying it violates their right to free speech

• The Trump administration in January issued a rule prohibiting immigration judges from speaking about their job or their take on US policy.
• The one exception is judges who serve in their union. But the Trump administration is also trying to decertify that union.
• The National Association of Immigration Judges on July 1 filed a lawsuit alleging that the administration is violating the right to free speech.
• "We are in the midst of an urgent public debate about immigration reform in this country and some of the most crucial voices in that debate are being silenced," Ramya Krishnan, staff attorney at Columbia University's Knight First Amendment Institute, said in a statement.

Immigration is President Donald Trump's reliable fallback for inflaming his base, the alleged harm posed by immigrants serving as the red meat in inflammatory tweets and executive orders.

At the same time, the administration led by this outspoken president has gagged the judges tasked with enforcing its laws at the border, prompting a lawsuit from those judges and free-speech advocates alleging that the US Constitution has been trampled.

In January immigration judges received word: Under no circumstances could they opine, at a public event or on a call with a reporter, on what happens in their courtrooms — or what they believe should happen there.

Established by Trump-appointee James McHenry, a former ICE attorney turned director of the Executive Office of Immigration Review (EOIR), which oversees the nation's immigration courts, the rule has one exception: judges who serve in an official capacity at their union.

That exception may not last. Also in January, another Trump appointee, Attorney General William Barr, oversaw an effort to decertify that union, arguing that the National Association of Immigration Judges (NAIJ), established in 1979, has been wrongly granted the right to collectively bargain on behalf of its members.

If that effort succeeds — the Federal Labor Relations Authority is expected to rule later this year — then all immigration judges will effectively be barred from speaking about immigration law or policy. For example, judges who spoke to Business Insider about the dangers of conducting court proceedings during a pandemic could, in the future, be terminated for such speech.

"We are in the midst of an urgent public debate about immigration reform in this country and some of the most crucial voices in that debate are being silenced," Ramya Krishnan, staff attorney at Columbia University's Knight First Amendment Institute, said in a July 1 statement.

In a suit filed in a US federal court on Wednesday, the institute notes that this silencing occurs at the same time that Trump "made immigration a signature issue of his presidential campaign." Immigration judges are well situated to comment on that issue (and the oft-incorrect claims made about it by elected officials). They are also, the suit argues, US citizens who have not ceded their First Amendment right to free speech.

"Part of the job of an immigration judge is to educate the public about the immigration courts and the role they play in society," Judge Ashley Tabaddor, NAIJ president, said in a statement. The Trump administration's policy "prevents us from doing this critical work, undermining public understanding of and trust in the immigration courts in the process."

EOIR did not immediately respond to a request for comment.

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