RICHMOND, Va.—The United States Court of Appeals for the Fourth Circuit today revived a legal challenge to the Department of Justice policy silencing immigration judges. The Knight First Amendment Institute at Columbia University challenged the policy on behalf of the National Association of Immigration Judges (NAIJ), arguing that the policy violates the First Amendment right of immigration judges to speak publicly on matters of public concern, and the public’s right to hear them. Today’s decision has far-reaching implications for a host of lawsuits challenging the mass firings of federal employees, the removal of job protections for some members of the civil service, and other Trump administration actions affecting federal employment, the Knight Institute said.
“Federal employees shouldn’t have to go through a cumbersome administrative process to challenge a sweeping prior restraint on their political speech. That’s especially true now, with the Trump administration’s hobbling of the federal agencies responsible for safeguarding the rights of federal employees,” said Ramya Krishnan, senior staff attorney at the Knight First Amendment Institute, who argued the case on behalf of NAIJ in the Fourth Circuit last December. “We look forward to continuing to fight for the rights of immigration judges to speak on matters of urgent public interest, and the right of the public to hear from them.”
In 2020, the Knight Institute filed the lawsuit on behalf of NAIJ challenging a policy of the Executive Office for Immigration Review (EOIR) that prohibits immigration judges from speaking or writing publicly in their personal capacities about immigration or the agency that employs them without prior approval. The district court dismissed the case in 2023, saying that the challenge should have been filed with the U.S. Special Counsel—the federal agency that investigates and prosecutes federal employment decisions—but the Fourth Circuit today expressed concern that the Special Counsel and the Merit Systems Protection Board—the body that reviews such decisions—may no longer have the independence necessary to safeguard the rights of federal employees. The court remanded the case to the district court to consider “whether the text, structure, and purpose” of the statute that establishes this review scheme “has been so undermined” that it no longer bars federal employees from suing over adverse employment decisions directly in federal court.
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.
“We applaud the Fourth Circuit decision allowing NAIJ’s lawsuit to protect immigration judges’ First Amendment and Fifth Amendment rights to proceed,” said Matthew Biggs, president of the International Federation of Professional and Technical Engineers. “The policy preventing immigration judges, acting in their personal capacity, from educating the public is misguided, leaves valuable perspectives out of the public discourse, and denies the speech rights of immigration judges. The court agreed that our concerns shouldn’t be stuck in a broken administrative process, and we’re looking forward to having our case fully heard on the merits.”
Read today’s decision here.
Read more about the lawsuit, NAIJ v. Owen, here.
Lawyers on the case include, in addition to Krishnan, Stephanie Krent, Xiangnong (George) Wang, and Alex Abdo of the Knight First Amendment Institute.
For more information, contact: Adriana Lamirande, [email protected].