Amicus Curiae Brief — Reno v. American-Arab Anti-Discrimination Comm.

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No. 97-1252 z 996

In The OFFICE OF THE CLERK

SUPREME CJoUnKT, U.9.

Supreme Court of the United States ~~

>

October Term, 1997

JANET RENO, ATTORNEY GENERAL, et ai.,

Petitioners,

VS.

AMERICAN-ARAB ANTI-DISCRIMINATION

COMMITTEE, et ai/.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF OF AMICUS CURIAE THE BRENNAN CENTER

FOR JUSTICE AT NEW YORK UNIVERSITY

SCHOOL OF LAW IN SUPPORT OF RESPONDENTS

BURT NEUBORNE

Counsel of Record

E. JOSHUA ROSENKRANZ

MARTA NELSON

BRENNAN CENTER FOR JUSTICE

AT NEW YORK UNIVERSITY

SCHOOL OF LAW

Attorneys for Amicus Curiae

161 Avenue of the Americas

5" Floor

New York, New York 10013

(212) 998-6730

148523 @) Counsel Press LLC

FORMERLY LUTZ APPELLATE SERVICES

(800) 274-3321 » (800) 359-6859

TABLE OF CONTENTS

Tee OS Ge ED bck cb ewan Vediausneesks

mabennet GF Mees Ce oc nc iw s bes cca whee

Introduction and Summary of Argument ...........

PORE oo ccctevciusnedereseceksctbasbisnebin

I.

II.

III.

The Commencement Of Pretextual Deportation

Proceedings Against The Targeted Aliens

Constitutes Administrative Action Designed To

Punish And Deter Activity Protected By The First

PUREE, © «. 66.n Senne eis

The First Amendment Requires Timely Access

To Judicial Review Whenever Law Enforcement

Officials Act To Punish And Deter Protected First

SS BT re ere

The Court Of Appeals Was Correct In Reading

The Relevant Statutory Language To Permit

Timely Access To Judicial Review. .........

COO gk v.cccs eb ccdee tnititvie eee

16

20

TABLE OF CITED AUTHORITES

Page

Cases Cited:

Bantam Books v. Sullivan, 372 U.S. 58 (1963) ...... 6, 10

Blount v. Rizzi, 400 U.S. 410 (1971) ©... 0.0.0.6... 5

Board of Airport Comm'rs v. Jews for Jesus, Inc., 482

keeles uk d eds eanteet « 6

Brandenburg v. Ohio, 395 U.S. 444 (1969) ......... 10

Bridges v. Wixon, 326 U.S. 135 (1945) ............. 3

Carey v. Brown, 100 S. Ct. 455 (1980) ............. 12

Chicago Police Department v. Mosely, 408 U.S. 92

eee Lt ge edueeeeh beneeeveces 12

City of Lakewood v. Plain Dealer Publishing Co., 486

fei ee ied epsiedadeseneses 5, 7,12

Cohen v. California, 403 U.S. 15 (1971) ........... 10

Elrod v. Burns, 427 U.S. 347 (1976) .. 2... 0.2666 5.. 5

Forsyth County v. The Nationalist Movement, 505 U.S.

ese ieee ekéuanessceuca 5

Freedman v. Maryland, 380 U.S. 51 (1965) ......... 5,11

F.T.C. v. Standard Oil Co. of California, 449 U.S. 232

ELC OUS est edn cécGetn eee decesecseces 15

Table of Cited Authorities

Page

FW/PBS Inc. v. Dallas, 493 U.S. 215 (1990) ........ 11

Grayned v. City of Rockford, 408 U.S. 104 (1972) ... 6

Heller v. New York, 413 U.S. 483 (1973) ........... 5

In re Asbestos School Litigation, 46 F.3d 1284 (3rd Cir.

Ferree or ee ye eee Sie ea ep 8

INS v. Chadha, 462 U.S. 919 (1983) ............... 16

Lopez-Telles v. INS, 564 F.2d 1302 (9th Cir. 1977) .. 4

Marcus v. Search Warrant, 367 U.S. 717 (1961) .... 5, 12, 13

National Student Ass'n v. Hershey, 412 F.2d 1103 (D.C.

Gk CN ecanenecdesbnneudcdbleuabaneeacrix 19

Oestereich v. Selective Serv. System Local Bd. No. /1,

Bae a PEED oe akonccseeConeweroebenss 19

Reno v. American Civil Liberties Union, _ U.S. __, 117

rT rey rT re ee 6, 12

Rosenberger v. Rector and Visitors of the University of

Forman, SES UB. GER GIGS oc cc cvcccesesases. 12

Shuttlesworth v. City of Birmingham, . )4 U.S. 147 (1969)

bog ndse ee te bat aweavanneedadbdebaeehent uenen 5,11

Smith v. Goguen, 415 U.S. 566 (1974) ............. 6

iv

Table of Cited Authorities

Page

Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546

Sv cb.rerde ss crernweddsedesnusetnwaedeel 5,11

Texas v. Johnson, 491 U.S. 397 (1989) ............. 10

United States v. Eichman, 496 U.S. 310 (1990) ...... 10

United States v. Hollywood Motor Car Co., 449 U.S. 263

DU 406 44. Guiswodtun tebe totendeleasihalsalan 15

United States v. Thirty-Seven Photographs, 402 U.S. 363

SPE soasuen dddubaddaneuteliibil tess ch uw 5, 12, 13

Weinberger v. Salfi, 422 U.S. 749 (1975) ........... 15

Wolff v. Selective Serv. System Local Bd. No. 16, 372

aC SED cc csvcasnbetdbsedesetec 19

Statutes Cited:

8 U.S.C. § 1252(b)(4)(A) (Supp. I] 1996) ........... 4

8 U.S.C. § 1252(b)(9) (Supp. 11 1996) ............. 18

8 U.S.C. § 1252(f) (Supp. 11 1996) ............. 3, 7, 17, 18

8 U.S.C. § 1252(g) (Supp. 11 1996) ................ 3,7

BO UK. BES CED 00s ce ccbdoncasencecsevcess 17

Table of Cited Authorities

Page

United States Constitution Cited:

Sha Gs GE Occ cucnccesncnesceucnottcces passim

SUM owas ocdtvciss snsovctenewharnce a< 16

Rule Cited:

Ge SE FEED cob idecodceneseddesnecces l

BRIEF OF THE BRENNAN CENTER FOR JUSTICE AT

NEW YORK UNIVERSITY SCHOOL OF LAW AS

AMICUS CURIAE IN SUPPORT OF RESPONDENTS

INTEREST OF AMICUS CURIAE

The Brennan Center for Justice at New York University

School of Law (“the Brennan Center”) is a partnership between

and among the family and friends of Justice William J. Brennan,

Jr., many of his law clerks, and the faculty of New York

University School of Law, designed to honor Justice Brennan's

extraordinary contribution to American law.' The Brennan

Center’s ideal is to unite the intellectual resources of the

academy with the pragmatic expertise of the bar in an effort to

assist courts and legislatures in developing practical solutions

to difficult problems in areas of special concern to Justice

Brennan. Before giving his approval to the enterprise, Justice

Brennan obtained a promise that the Brennan Center would

function as a non-partisan, independent center of thought,

paying no special deference to his views or to the opinions that

he authored.

The Brennan Center’s Judicial Independence Project

addresses the critical role that an independent judiciary plays

in our self-consciously divided system of government. The

Center submits this brief amicus curiae in support of

respondents because the historic role of the judiciary in

safeguarding individual rights is threatened by the jurisdictional

position asserted in this case by petitioners, the Immigration

and Naturalization Service (INS). The INS argues that judicial

review of an alien’s claim that he was targeted for lengthy

1. Pursuant to Supreme Court Rule 37.6, amicus states that no

counsel for a party authored this brief in whole or in part; and that no

person or entity, other than amicus, contributed monetarily to the

preparation and submission of this brief.

2

deportation proceedings because of his political beliefs must

await the issuance of a final order of deportation. But the courts’

ability to protect an alien’s right to engage in controversial

political speech is utterly dependent upon the ability to review

claims of First Amendment violations in a timely manner.

Otherwise the political speech rights sought to be protected —

both of those aliens facing deportation proceedings and other

aliens similarly situated — will be lost, chilled by the initiation

of a pretextual deportation proceeding that is immune from

judicial scrutiny for many years.

Amicus submits this brief with the written consent of the

parties. The consents have been filed with the Clerk of the

Court.

INTRODUCTION AND SUMMARY

OF ARGUMENT

Respondents are aliens living in the United States (“the

targeted aliens”) who have been singled out for deportation by

the INS because of their controversial political beliefs and

associations. Were the INS openly to threaten to deport aliens

because of their First Amendment activity, extremely important

First Amendment issues would be raised mandating timely

judicial review.’ Indeed, pre-enforcement re /iew of a threatened

2. By “First Amendment activity” amicus means activity that

objectively can be said to raise First Amendment concerns. The

determination of whether the aliens have in fact engaged in First

Amendment activity must be made in a judicial proceeding.

This Court declined to grant certiorari on the scope of the First

Amendment protections enjoyed by aliens. For the purpose of

considering the jurisdictional question before the Court, the parties must

accept, as stated in the Complaint, that aliens living in the United States

have full First Amendment rights. J.A. 47, 48, 54. The words of the

(Cont'd)

3

deportation is available under the statute at issue here, the Illegal

Immigration Reform and Immigrant Responsibility Act

(IIRIRA). See 8 U.S.C. §§ 1252(g) and 1252(f) (Supp. II 1996)

(Before the Attorney General has commenced proceedings

against an alien, federal jurisdiction is not limited, except for

1252(f)’s possible restriction of pre-enforcement relief to

declaratory relief only). In an apparent attempt to evade those

important constitutional issues, and to postpone judicial review,

the INS has disguised the deportation proceedings against the

targeted aliens as “garden-variety” prosecutions for the

violation of technical aspects of immigration laws having

nothing to do with politics. But the INS has publicly conceded

that these “garden variety” immigration proceedings would

never have been commenced but for the protected political

activities of the targeted aliens. J.A. 93-94. The deportation

proceedings here are, therefore, nothing more than pretextual’

efforts to punish the targeted aliens for controversial political

behavior.

(Cont'd)

First Amendment — “Congress shall make no law __. abridging the

freedom of speech, or of the press, or the right of the people peaceably

to assemble” — do not distinguish between citizens and others; indeed,

the only reference to the intended beneficiaries of the Amendment is to

the “people” who may peaceably assemble. Recognizing the textual

mandate of inclusion, this Court has explicitly stated that “freedom of

speech and of the press is accorded aliens residing in this country.”

Bridges v. Wixon, 326 U.S. 135, 148 (1945).

3. At least two types of pretextual deportation proceedings may

exist. One form of pretextual proceeding involves “bad faith” allegations

of immigration law violations that the INS does not believe to have

actually occurred. A second type of pretextual proceeding involves

plausible allegations that technical violations of law have occurred, but

where the proceeding is not motivated by a desire to enforce the technical

violations, but to use the proceeding as a device to punish the targets for

something else, in this case the exercise of First Amendment activity.

Amicus uses the term pretextual in the latter sense.

4

The Court of Appeals ruled that timely judicial review of

the targeted aliens’ claims that the INS sought to punish them

because of their First Amendment activities was available in

the district court. Pet. App. 15a. Absent such timely review,

the Court of Appeals recognized that the INS would have de

facto power to punish and deter activity protected by the First

Amendment, without any possibility of judicial oversight for

extended periods of time.

The INS argues, however, that by disguising the deportation

proceedings as “garden variety” prosecutions having nothing

to do with politics, it can escape timely judicial review of its

attempt to use the administrative process as an in terrorem

device to deter the targeted aliens (and those similarly situated)

from engaging in protected controversial political activities.

But the INS’s attempt to shield its sophisticated exercise in

political censorship from judicial review runs headlong into

this Court’s uniform recognition that efforts by law enforcement

authorities to punish or deter First Amendment activity must,

as a matter of First Amendment law, be subject to timely and

effective judicial review.

The targeted aliens argue persuasively that unless district

court jurisdiction is recognized, it will be impossible to secure

judicial review of the government’s decision to single them

out for pretextual deportation proceedings as a punishment for

First Amendment activity. The administrative hearing officer

lacks statutory authority to develop a record regarding selective

prosecution. Petitioner’s Brief at 38 (hereinafter “Pet. B.”); See

also Lopez-Telles v. INS, 564 F.2d 1302, 1304 (9 Cir. 1977)

(“The immigration judge is not empowered to review the

wisdom of the INS in instituting the proceedings.”). Yet under

IIRIRA, the court of appeals, in its review of the aliens’ case

after a final order of deportation, would be tethered to this

inadequate administrative record. See 8 U.S.C. § 1252(b)(4)(A)

(Supp. II 1996).

nA i Ae a tls ea et

5

Even if, however, a modicum of judicial review might be

available at some date far in the future, amicus contends that

our system of free expression requires timely judicial review

of actions by law enforcement officials that are openly designed

to punish and deter the exercise of First Amendment rights.

Indeed, amicus knows of no case in which claims that the

government commenced prosecutions or civil proceedings in

order to punish or deter individuals engaged in protected First

Amendment activity were denied timely judicial review.

The First Amendment rule could not be otherwise. This

Court has repeatedly recognized that where fragile First

Amendment rights are at stake, extended delay prior to judicial

review of executive officials’ alleged censorship gives the

executive branch de facto power to determine the real-world

meaning of the First Amendment. That is why this Court has

held that a denial of First Amendment rights even for extremely

short periods of time constitutes “irreparable injury” authorizing

immediate injunctive relief against executive acts of censorship.

Elrod v. Burns, 427 U.S. 347, 373 (1976). Whether the issue

has been censorship of alleged indecent material by

administrative agencies,‘ seizure of First Amendment material

by law enforcement officials,’ standardless executive permit

and licensing systems for First Amendment activity,° unduly

4. E.g., Southeastern Promotions, Lid. v. Conrad, 420 U.S. 546

(1975); Blount v. Rizzi, 400 U.S. 410 (1971); Freedman v. Maryland,

380 U.S. 51 (1965).

5. E.g., United States v. Thirty-Seven Photographs, 402 U.S. 363

(1971); Marcus v. Search Warrant, 367 U.S. 717 (1961); See also Heller

v. New York, 413 U.S. 483 (1973).

6. E.g., Forsyth County v. The Nationalist Movement, 505 U.S.

123 (1992); City of Lakewood v. Plain Dealer Publishing Co., 486 U.S.

750 (1988); Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969).

6

vague statutes granting too much power to executive officials,’

or overbroad statutes inviting abuse by law enforcement

officials,* this Court has recognized that timely judicial review

of executive action is critical to the continued enjoyment of

First Amendment rights.

It would, therefore, constitute a dangerous departure from

years of settled jurisprudence for this Court to permit law

enforcement officials to punish persons for First Amendment

activity without an opportunity for timely judicial review.

Indeed, it would be a blueprint for executive censorship across

the spectrum of First Amendment activity.

ARGUMENT

I.

THE COMMENCEMENT OF PRETEXTUAL

DEPORTATION PROCEEDINGS AGAINST THE

TARGETED ALIENS CONSTITUTES ADMINISTRATIVE

ACTION DESIGNED TO PUNISH AND DETER ACTIVITY

PROTECTED BY THE FIRST AMENDMENT.

If an INS official had telephoned each of the targeted aliens

and threatened him with deportation for engaging in activity

protected by the First Amendment, the targets would

undoubtedly have been entitled to timely judicial review of the

government’s effort to intimidate them into political

submission. See Bantam Books v. Sullivan, 372 U.S. 58 (1963)

7. E.g., Smith v. Goguen, 415 U.S. 566 (1974); Grayned v. City of

Rockford, 408 U.S. 104 (1972).

8. E.g., Reno v. American Civil Liberties Union, _ U.S. __, 117

S. Ct. 2329 (1997); Board of Airport Comm'rs v. Jews for Jesus, Inc.,

482 U.S. 569 (1987).

7

(credible threats of prosecution for selling controversial books

are subject to immediate judicial review). Indeed, such review

is not precluded by IIRIRA. See 8 U.S.C. 1252(g) and (f).

Instead of sending a threatening message by telephone, the INS

sent a far more frightening message to any alien considering

controversial political activity. The message is simple: engage

in such political activity, and you will be subject to deportation

for technical violations of the immigration laws that are

tolerated when committed by those who remain silent or who

support favored political causes.

Such a message has an obvious impact on an alien’s

willingness to engage in First Amendment activities. This Court

has recognized that persons confronted with an overbroad or a

vague statute that imposes criminal sanctions for violations are

likely to steer clear of the prohibited zone, even if the deterred

activities are fully protected by the First Amendment. City of

Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 757-

58 (1988). So, too, would vulnerable aliens confronted with

the prospect of a retaliatory deportation proceeding steer clear

of controversial political activities.

The punitive effect of this pretextual deportation

proceeding on the aliens’ First Amendment rights is

demonstrated by contrasting such a proceeding with an ordinary,

good faith deportation proceeding. In an ordinary deportation

proceeding, the issues actually driving the prosecution can be

addressed conclusively within the administrative process. INS

hearing officers are authorized to handle these matters, with

judicial review available at the end of the administrative

proceeding. Where, however, the INS has targeted an alien for

a pretextual deportation proceeding because of his political

speech, the INS has conceded that a challenge to the pretextual

prosecution cannot be raised in the deportation proceeding. Pet.

B. at 38. The INS’ concession is correct, since it would be

8

impossible for an INS hearing officer to sit in judgment over

the motivations of his superiors. Without access to judicial

review, a targeted alien will be forced to spend years defending

himself against technical violations of the immigration statutes,

while the real motivation for the prosecution — a desire to

punish him for controversial political beliefs and associations

— remains tantalizingly beyond the scope of the administrative

proceeding.

During those years, the targeted alien suffers continuing

harm, as do all similarly situated members of the alien

community. The harm takes many forms. The most immediately

apparent is the psychological and monetary cost of defending

oneself in a lengthy deportation proceeding that should never

have taken place. But an alien’s injury is not merely that he is

forced to endure several year long trial, and the accompanying

inconvenience, expense, anxiety, and, if detained, loss of

liberty. There is an ongoing injury to the alien’s First

Amendment rights during the trial. Quite simply, the alien will

be fearful of engaging in controversial political activities during

the proceeding. He will refrain from political activity and

speech, because the INS can, and most likely will, take into

account an alien’s continuing politicai activity in determining

how it treats the alien during the proceedings, and in deciding

whether to continue a lengthy proceeding against him. See /n

re Asbestos School Litigation, 46 F.3d 1284, 1295 (3 Cir. 1994)

(permitting interlocutory review of a district court’s finding

that defendant Pfizer, Inc.’s association with a business group

subjected it to a civil conspiracy claim in an asbestos liability

lawsuit, because if Pfizer had to wait until the close of

proceedings to obtain appellate review of this finding, it would

be chilled from associating with the business association

throughout the long litigation. “The harm in the present case

goes well beyond the mere expense and inconvenience of

litigation. Failure to issue a writ in this case would subject Pfizer

to a continuing impairment of its First Amendment freedoms.”)

9

Further, and perhaps most importantly, the fact of the trial

constitutes an ongoing injury to the First Amendment rights of

the many other aliens who may also be in default of technical

provisions of the immigration laws. These aliens would observe

the plight of those on trial, and conclude that they also dare not

engage in controversial political activity, lest they also be met

with a pretextual deportation proceeding. The trial, thus, has a

ripple effect, starting with the accused and dispersing

throughout their political community. Without a timely

challenge in the courts, the perception of the outside world is

that certain speakers may be subject to deportation proceedings,

and confronted with a final self-executing order of deportation,

because of the content of their speech. The possibility that the

speakers may be able to challenge the order years later matters

not; at that point the damage is done. Other aliens, learning

from example, will remain silent.

In a real sense, therefore, the very commencement of a

pretextual deportation proceeding, not merely its eventual

outcome on the merits, is a fully completed action by law

enforcement officials that intentionally punishes and deters the

exercise of First Amendment activity. As such, as the Court of

Appeals understood, and, as amicus contends in Point II, it must

be subject to timely judicial review.

THE FIRST AMENDMENT REQUIRES TIMELY

ACCESS TO JUDICIAL REVIEW WHENEVER LAW

ENFORCEMENT OFFICIALS ACT TO PUNISH AND

DETER PROTECTED FIRST AMENDMENT ACTIVITY.

A commitment to a robust First Amendment entails two

parallel lines of protection. First, the Court has struggled to

define the substantive contours of First Amendment protection,

10

developing complex and elaborate formulae to define the sphere

of protected First Amendment activity. See, e.g., Texas v.

Johnson, 491 U.S. 397 (1989); United States v. Eichman, 496

U.S. 310 (1990); Cohen v. California, 403 U.S. 15 (1971),

Brandenburg v. Ohio, 395 U.S. 444 (1969). Equally

importantly, the Court has recognized that the substantive

definition of First Amendment rights must be accompanied by

a set of procedural protections designed to assure that a

commitment to free speech is not eroded by procedures that

ensure free speech protection in theory, but not in practice.

Accordingly, the Court has enunciated at least four areas of

rirst Amendment procedural protection: (1) a ban on most prior

restraints, especially prior restraints issued by law enforcement

officials; (2) a refusa} to countenance unduly vague or overbroad

statutes, especially in settings involving regulation of speech,

(3) a rigorous equal access principle that requires all persons

to be treated equally whenever government purports to regulate

speech; and (4) a strict requirement of procedural fairness in

any setting where officials seek to regulate speech.

The thread that unites all four areas of procedural protection

is this Court’s recognition that institutional devices vesting law

enforcement officials with the de facto ability to decide who

may speak and who must remain silent pose an intolerable risk

to a system of free expression. Accordingly, such devices must

be subject to prompt judicial review.

The virtually absolute ban on prior restraints issued by law

enforcement officials is a classic recognition that the executive

branch may never be vested with unilateral power to suppress

speech. In Bantam Books v. Sullivan, 372 U.S. 58 (1963), for

example, a government commission distributed lists of

objectionable books, informed bookstores of its intent to

recommend obscenity prosecutions, and distributed the lists to

the local police. The Court condemned the system as an

A a

administrative prior restraint because it shifted de facto power

over speech from courts to law enforcement officials. Similarly,

in Freedman v. Maryland, 380 U.S. 51 (1965), the Court

condemned an administrative licensing scheme for motion

pictures because it had two fatal errors: it was too long (4-6

months) and it vested too much power in the hands of the

executive.

Because the censor’s business is to censor, there

inheres the danger that he may well be less

responsive than a court — part of an independent

branch of government — to the constitutionally

protected interests in free expression. And if it is

made unduly onerous, by reason of delay or

otherwise, to seek judicial review, the censor’s

determination may in practice be final.

380 U.S. at 57-58. See also Southeastern Promotions, Ltd. v.

Conrad, 420 U.S. 546 (1975) (unreviewable administrative

decision to ban the musical “Hair” from municipal auditorium

violates First Amendment); FW/PBS Inc. v. Dallas, 493 U.S.

215, 228 (1990) (broad licensing scheme upheld because there

was “the possibility of prompt judicial review in the event that

the license is erroneously denied.”). Similarly, when permits

are required for marches or demonstrations there must be

prompt judicial review of executive officials’ decisions on such

permits, because of the inherent possibility that the executive

may deny march permits based on their disagreement with the

views sought to be expressed. Shuttlesworth v. City of

Birmingham, 394 U.S. 147, 163 (1969) (Harlan, J., concurring)

(“[T]iming is of the essence in politics. It is almost impossible

to predict the political future; and when an event occurs, it is

often necessary to have onc’s voice heard promptly if it is to

be considered at all.”).

Overbroad and vague statutes raise similar concerns for

two reasons. First, because the statues cast so wide a net, they

12

invite law enforcement officials to use improper criteria in

choosing which of the persons “caught” by the statute shall be

prosecuted. The officials may decide whom to prosecute by

eva‘sarng a transgressor’s speech, manner, or looks. See City

of Lakewood v. Plain Dealer, 486 U.S. at 758. Second, because

it is not clear on the face of the statute what speech is restrained

and what is not, many people will engage in self-censorship,

for fear of stepping over an ill-defined line. /d. at 757-58; Reno

v. American Civil Liberties Union, U.S. ___, 117 S. Ct. 2329,

2344-45. Prompt judicial review combats both concerns.

Executive and administrative officials will be far less likely to

engage in discriminatory prosecutions if they know their actions

will be quickly reviewed by an independent judiciary. Similarly,

if the public may bring timely challenges to overbroad or vague

statutes, they can obtain either a narrowing construction or a

ruling of unconstitutionality, allowing them again to speak

freely after a short period of time. City of Lakewood v. Plain

Dealer, 486 U.S. at 759.

The Court's rigorous requirement of equal treatment of all

putative speakers attempting to speak in public places also

demonstrates a concern with the exercise of undue power over

speech by administrative officials. Chicago Police Department

v. Mosely, 408 U.S. 92 (1972); see also Rosenberger v. Rector

and Visitors of the University of Virginia, 515 U.S. 819, 829-

830 (1995); Carey v. Brown, 100 S. Ct. 455, 461-62, 471 (1980).

The equal treatment principle is self-consciously designed to

eliminate unreviewable discretion by law enforcement and other

administrative officials over who may speak in public forums

and who must remain silent. Rosenberger, 515 U.S. at 844-45.

Finally, the First Amendment “due process” cases,

exemplified by Marcus v. Search Warrant, 367 U.S. 717 (1961),

and United States v. Thirty-Seven Photographs, 402 U.S. 363

(1971), are explicit efforts to assure effective judicial control

13

over law enforcement decisions to suppress colorably protected

speech. In Marcus, the Court invalidated a procedure that

allowed law enforcement officers to seize allegedly obscene

materials without judicial scrutiny. In Thirty-Seven

Photographs, the Court construed a statute providing for the

seizure of allegedly obscene materials coming into the United

States to require judicial review of such seizure within 14 days,

and a final decision by the district court within 60 days. In

both cases, the Court determined that timely judicial review

must be available to those whose speech the government is

attempting to restrict.

Amicus does not contend that the INS’s deportation

proceedings against the targeted activists precisely fit into any

of these categories, but therein lies its danger. The government

is free to argue, as it has, that because this is not a prior restraint

(or an overbroad statute, or an attempt to seize protected

material, etc.), the targeted aliens have no right to a prompt

judicial forum to air their First Amendment claims. Pet B. at

42, n.18. Amicus urges this Court to look beyond the formal

categories that have thus far been established and to recognize

that the effects of the INS’s action here are identical to the

cases described above. The effect of a prior restraint is to chill

speech by those who do not wish to cross the line marked in

the sand and subject themselves to a criminal proceeding. The

effect of the deportation proceeding here is the same: aliens

will not engage in political speech. The effect of overbroad or

vague statutes is to allow law enforcement to selectively enforce

them against those whose politics displease them. The effect

of delayed judicial review here is the same. The effect of

treating people differently in terms of access to speak in public

forums is to chill the speech of those who wish to continue to

use such public facilities. The effect of the INS proceeding is

the same: aliens will not support controversial activity in order

14

to continue to enjoy the benefits of residence in the United

States (except, of course, for the benefit of free speech). The

effect of a lack of procedural fairness when officials seek to

seize books or other tangible speech because of its content is

to stop people from creating work of “questionable” content.

The effect of the INS proceeding is the same: aliens will stop

supporting political causes that are “questionable” to the

prevailing government.

Indeed, what the INS is seeking here is this Court’s

approval of an extended “dead space” between law enforcement

activity designed to punish and deter First Amendment rights

and judicial review of such action. As amicus has detailed, the

Court has consistently refused to permit the existence of such

“dead space.” If the government is successful in establishing

judicially unreviewable law enforcement power over

controversial speech by aliens, the use of the same technique

to insulate executive assaults on other forms of controversial

speech is fair game. Congress could insulate the Federal

Election Commission from effective judicial review if it

commenced pretextual proceedings against disfavored

candidates, by forbidding judicial review until after a final FEC

determination. Congress could insulate the Federal

Communications Commission from judicial review if that

agency commenced pretextual license revocation proceedings

against broadcasters broadcasting messages in support of

candidates of the “wrong” political party, by limiting judicial

review to some time after the license had been revoked and the

broadcaster was out of business.

The cases chosen by the INS to support its argument as to

the constitutionality of delayed review are inapposite. The

differences between the cases it cites and the case presented

here demonstrate that the INS’s action here is indeed

15

unprecedented. Weinberger v. Salfi, 422 U.S. 749 (1975) held

that a class of widows was required to exhaust administrative

remedies before gaining judicial review of their claim that

Social Security Act provisions requiring them to have been

married to their husband for at least nine months in order to

collect survivors’ benefits were unconstitutional. In United

States v. Hollywood Motor Car Co., 449 U.S. 263 (1982) the

Court required a criminal defendant to go forward to trial

without interlocutory appellate review after the district court

denied his claim for vindictive prosecution based on the

defendants’ motion for a change of venue. Finally, F.7.C. v.

Standard Oil Co. of California, 449 U.S. 232 (1980) held that

a company who claimed that the FTC had filed antitrust charges

against it without reason to believe that it had in fact violated

FTC regulations could not get immediate judicial review after

the FTC denied its motion to dismiss. None of these cases

involve First Amendment rights in any context, much less the

context of an executive action commenced to deter First

Amendment activity. None raise the issue of irreparable harm

from the suppression of the defendants speech, and the speech

of the community, during the pendency of the administrative

or criminal proceedings. In fact, Standard Oil Co. noted that

“Socal does not contend that the issuance of the [FTC’s]

complaint had any [ ] legal or practical effect, except to impose

upon Socal the burden of responding to the charges made against

it.” 449 U.S. at 242. In short, these cases do not deal with the

central question raised here — whether Congress may preclude

timely judicial review of administrative proceedings when such

proceedings allegedly violate the targets’ First Amendment

rights — and thus they provide no support for the INS’s position.

That the persons prosecuted here are aliens living in the

United States, and the Congress has plenary power over such

aliens, is no answer. Pet. B. at 39-40. As noted above, since

16

this Court did not grant certiorari on the question of whether

aliens living in this country enjoy the same First Amendment

rights as citizens, such aliens must be presumed to have such

rights for the purpose of deciding the jurisdictional question.

Further, Congress’ plenary power over immigration is not

absolute. While Art. I, § 8, cl. 4 of the Constitution gives

Congress power over immigration, the grant does not occur

without regard to the rest of the Constitution.

The plenary authority of Congress over aliens .. .

is not open to question, but what is challenged here

is whether Congress has chosen a constitutionally

permissible means of implementing that power.

INS v. Chadha, 462 U.S. 919, 941 (1982). Congress must be

concerned with how its immigration enactments affect the First

Amendment rights of aliens, and must chose a method of

enforcing its enactments that does not offend these rights.

THE COURT OF APPEALS WAS CORRECT IN

READING THE RELEVANT STATUTORY LANGUAGE

TO PERMIT TIMELY ACCESS TO JUDICIAL REVIEW.

The parties have offered competing constructions of

IIRIRA that would permit judicial review of alleged violations

of First Amendment rights. Yet only the one proffered by

respondents and adopted by the Court of Appeals allows for

timely review of such First Amendment claims. The

construction proffered by the INS will not grant review until

after the conclusion of those very events alleged to violate the

aliens’ First Amendment rights: namely, the bringing of

deportation charges, and the undertaking of a lengthy and

disruptive deportation hearing, followed by an order of

17

deportation, all because of the activists’ speech in favor of a

political cause disfavored by the government. Accordingly, the

Court should adopt the construction adopted by the Court of

Appeals. If it chooses not to do so, amicus contends that it must

hold the statute unconstitutional.

The reading of the IIRIRA proposed by the INS involves

grafting 28 U.S.C. § 2347(b)(3) onto IIRIRA’s jurisdictional

sections. Pet. B. at 44-49. 28 U.S.C. § 2347(b)(3) permits a

court of appeals reviewing a final order of an administrative

court to remand matters to the district court for a hearing when

a hearing was not required in the administrative proceedings

“as of law.” The government's invocation of 28 U.S.C.

§ 2347(b)(3) to provide district court jurisdiction at the end of

the day, however, results in precisely the deferred and

cumbersome judicial review repeatedly condemned by the cases

above. The targeted aliens would be forced to endure a lengthy

pretexual deportation proceeding to its conclusion. Only then

would the matter be reviewed by the Court of Appeals, where

it would be remanded to a district court to develop a record on

the selective prosecution claim. Such deferred review is simply

not the timely and efficient review of First Amendment claims

mandated by this Court's decisions.

The Court of Appeals, on the other hand, offers a plausible

reading of IIRIRA that provides for judicial review and, if

necessary, injunctive relief against the application of the

deportation laws against a specific individual. Pet. App. 9a-

15a. 8 U.S.C. § 1252(f) (Supp. II 1996) reads:

No court (other than the Supreme Court) shall have

jurisdiction or authority to enjoin or restrain the

operations of part IV of this subchapter [which

includes the provisions on deportation at 8 U.S.C.

§ 1227 (Supp. II 1996)] other than with respect to

18

the application of such provisions to an individual

alien against whom proceedings under such part

have been initiated. (Emphasis added).

Where, as here, proceedings have been brought against an

“individual alien,” the literal language of this section vests

federal courts with jurisdiction to engage in both factual and

legal review of the aliens’ claims of pretextual deportation.

The INS, nonetheless, fears that reading 8 U.S.C. § 1252(f) to

permit district courts to enjoin ongoing proceeding against an

alien would allow this “limitation” on jurisdiction to swallow

the rule of deferred judicial review of deportation proceedings.

See 8 U.S.C. § 1252(b)(9) (Supp. II 1996). This fear ignores

the Court of Appeals’ explicit limitation on the use of 8 U.S.C.

§ 1252(f) to claims raising a constitutional question that cannot

be addressed in the course of the deportation proceeding itself.

Pet. App. | la. (“Under subsection (f), individual aliens would

appear to be able to seek judicial review of constitutional claims

such as those at issue here.”) (Emphasis added).

This jurisdictional controversy echoes a similar

governmental attempt, thirty years ago, to silence dissent by

commencing non-reviewable pretextual administrative

proceedings designed to punish controversial exercises of First

Amendment activity. As opposition mounted to the Vietnam

War, mass anti-war demonstrations were held at Selective

Service offices throughout the United States. In response to

the demonstrations, which occasionally involved unprotected

attempts to block access to induction centers, or refusals to

carry draft cards, the Selective Service announced that anti-

war demonstrators with otherwise valid draft deferments would

be subject to reclassification to active duty eligibility as a

punishment for interfering with the Selective Service Act. Since

the Act did not grant federal courts jurisdiction over pre-

19

induction review of punitive draft re-classifications, the net

effect of the Service’s edict was to force anti-war demonstrators

to choose between giving up their speech, or challenging the

Service’s action via a writ of habeas corpus after they had

already been inducted into the Army.

Two lower courts, confronted with this combination of the

Service’s action to punish First Amendment activity and

Congress’ withdrawal of jurisdiction to exercise timely judicial

review over the administrative proceedings, held that the courts

nonetheless had jurisdiction to hear claims of First Amendment

violations. Wolff v. Selective Serv. System Local Bd. No. 16,

372 F.2d 817, 826 (2d Cir. 1967); National Student Ass'n v.

Hershey, 412 F.2d 1103 (D.C. Cir. 1969). In Oestereich v.

Selective Serv. System Local Bd. No. 11, 393 U.S. 233, 242

(1968), the Supreme Court, aided by a courageous confession

of error by then-Solicitor General Erwin Griswold, ruled that

Congress simply could not have intended to strip the courts of

power to review such lawless draft reclassifications.

Accordingly, this Court read the seemingly absolute

congressional language as containing an implied exception for

federal jurisdiction needed to protect against lawless punitive

reclassifications. 393 U.S. at 238.

As the Court of Appeals has demonstrated, a plausible

reading of IIRIRA exists in this case that is far less heroic than

the reading of the Selective Service Act adopted by this Court

in Oestereich. Just as this Court used its power to construe

Congress’s jurisdictional provisions in Oestereich to permit

jurisdiction required by the First Amendment, so a similar, far

less difficult reading should be adopted in this case to preserve

the timely access to judicial review that is a hallmark of the

modern First Amendment.

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CONCLUSION

For the reasons stated above, the decision below should be

- affirmed. In the alternative, this Court should hold

unconstitutional that portion of IIRIRA that deprives an alien’s

claim of First Amendment violations in a deportation

proceeding a timely judicial forum.

Respectfully submitted,

BURT NEUBORNE

Counsel of Record

E. JOSHUA ROSENKRANZ

MARTA NELSON

BRENNAN CENTER FOR JUSTICE

AT NEW YORK UNIVERSITY

SCHOOL OF LAW

Attorneys for Amicus Curiae

161 Avenue of the Americas

5" Floor

New York, New York 10013

(212) 998-6730

September 11, 1998