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Blog by Manar Waheed, Legislative and Advocacy Counsel, ACLU

Exactly one year ago today, the Supreme Court allowed the full implementation of Trump’s Muslim ban. It would be months still before it heard oral arguments in Hawaii v. Trump and issued its ruling on June 26, allowing the ban to remain in place. But on Dec. 4, 2017, America began to ban millions of Muslims from the United States, even if they have family members, jobs, academic spots, or other compelling connections here, and even if they would otherwise be fully entitled to receive a visa to come here. 

This day goes down in the history books, not only as an enormous failure to live up to our values of religious and racial equality, but for the real impact that the ban has on people’s lives. Take Anahita, who never got to say goodbye to her father in Iran before he passed away and did not even get to mourn with her family. Or Nisrin, who was detained during the chaotic implementation of the first Muslim ban simply because of her Sudanese citizenship, although she has lived in the United States for 25 years. Let’s also not forget the numerous students afraid to return home to visit their families because their visas may not be reissued. Or the families now traveling thousands of miles and spending thousands of dollars to simply be able to hug someone they love at a library on the border of Canada and the United States.

Though there is a waiver process, the numbers have been sparse. In the first three months, the government issued just two waivers. As of June, the number of waivers grew to around 570 — a mere two percent of visa applications. Most recently, State Department claimed to have “cleared” 1,836 applicants for waivers as of September, but it remains unknown whether those individuals have actually been granted waivers. Many advocacy groups and members of Congress have requested updated numbers about waiver issuances, but the government has yet to fulfill those requests.

The ban’s impact comes in many shapes and forms, reaching well beyond individuals from the five targeted countries into hearts, homes, and neighborhoods across the country.

Refugee numbers are grinding practically to a halt, largely impacting Muslim, Arab, Iranian, Middle Eastern, and South Asian communities. Many applicants are indefinitely stalled in their immigration process because of so-called “extreme vetting,” including a social media monitoring program that claims to determine who will present a “threat”—even though there are no reliable predictorsof who will commit violent acts. In fact, documents have revealed that officers truly don’t know what they’re looking for and have stated their need for “training and clear guidance.”

Hateful rhetoric coming from the highest levels of government is also echoed and manifested on the ground. Hate crimes continue to rise, particularly those motivated by racial or ethnic animus as well as those motivated by religious animus. Muslims are facing heightened levels of harassment and violence, though reporting numbers by the Federal Bureau of Investigations do not fully reflect that reality in part because of the escalating fear these communities face engaging with law enforcement. Communities worry that law enforcement will report them to immigration enforcement or the FBI for little or no reason — even when they are U.S. citizens. For some, it may feel like there is no safe place to turn.

But as other communities have shown us throughout history, one antidote to hate is committed activism. Our government has been on the wrong side of our values and the law before. Japanese incarceration through internment camps. The denial of citizenship for Black people. Racial segregation under the notion of separate but equal. Eventually, and after much struggle and harm, they were overturned, just like the Muslim ban will be.

From its very start, the Trump administration has vilified and stigmatized Muslims through its rhetoric and its discriminatory policies, starting with the Muslim ban. A new year, however, is upon us — along with a new Congress. And they’re just the ones to rescind the ban and put an end to this period of government-sanctioned discrimination and hate.

Date

Tuesday, December 4, 2018 - 3:00pm

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Thanks to a growing number of state and local government officials, not to mention national actors like President Trump, questions abound these days about the constitutionality of public officials blocking people on social media.

The answers to those questions are complicated and depend on the facts of any given case. But, as we explain in a brief we filed in a Virginia lawsuit this week, the proper framework for courts to use in considering these cases should ensure that as our democracy increasingly moves online, the Constitution applies with no less force on the internet than it does offline.

Two main principles should govern these cases: First, individuals do not lose their First Amendment rights just by virtue of gaining public office, no matter how powerful they are. Second, when they act on behalf of the government, elected officials are also subject to the limits that the First Amendment imposes on them as government actors.

To answer this conundrum, courts must begin by asking which role a public official embodies on a given social media account: that of a private speaker or a government actor. If the answer is “private speaker,” she can limit her audience and curate the messages on the page, just like any other member of the public. But if the answer is “government actor,” the First Amendment dictates that she can’t prohibit access to her social media in three specific circumstances.

First, once she intentionally opens up her social media for public conversation, she can’t stop people from joining in because of the views they express on the topics at hand. Second, if she generally allows individuals to ask for government services through her social media account, she can’t block critical voices from doing so. And, finally, if she uses her account to publicly share government information, she can’t prevent people from actually being able to see her posts because of their viewpoints. This is all for good reason. Allowing a government actor to ban critics from speaking in public forums would silence and chill dissent, warp the public conversation, and skew public perception. And enabling government actors to block critics from petitioning them for services or seeing public information would mean punishing them for speaking out or holding critical views.

How does a court apply that test to specific facts? Let’s consider the Virginia case. There, a chairwoman of the board of supervisors of Loudoun County, Va., created an “official chairwoman” Facebook page. She uses that official page to share information with constituents, give them a space to discuss “any issues,” and find out who needs emergency relief during snowstorms. She generally keeps the page open to all, but she briefly blocked the plaintiff in the case — a constituent who criticized members of the board she chairs.

In this circumstance, we think the chairwoman is clearly a “government actor” because of the contents of the page and its links to her activity as a public official. That leads to the next question: Does she offer the page as a public forum, a way to petition her for public services, or as a space to share government information? Her posts inviting “any” constituent to comment on “any issues” suggest that she has at least opened it up as a place for public discussion. That means that she violated the First Amendment by blocking a constituent from commenting on her page because he expressed criticism of her colleagues.

Let’s try one more. What about President Trump? @realDonaldTrump is clearly an official government account, by the Department of Justice’s own admission. That means Trump cannot claim that the First Amendment does not apply to the digital acts conducted on that account. The second part of the test depends on the facts that will be found by the court: namely, whether President Trump has opened his feed up as a forum for public discussion. If the answer is yes, his blocking of users violates the Constitution. If the answer is no, the public is still entitled to see his tweets, since he issues official decisions — like his intention to ban transgender people from serving in the military — through that account. However, given Twitter’s current policies, even those “blocked” by a certain account, or those without a Twitter account at all, can still see public tweets. So it may be a social media company’s specific technology that dictates the ultimate constitutional result in that case.

More often than not, the First Amendment traffics in nuance, detail, and government intent. In applying it to the internet, we should expect nothing less.

Blog by Vera Eidelman, Staff Attorney, ACLU Speech, Privacy, and Technology Project

 

Date

Wednesday, November 29, 2017 - 6:00pm

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Blog by Madhuri Grewal, Federal Immigration Policy Counsel, ACLU National Political Advocacy Department

Back in April, Immigration and Customs Enforcement and Customs and Border Protection, both under the Department of Homeland Security, entered into a memorandum of agreement with an obscure government agency known as the Office of Refugee Resettlement, a division of the Department of Health and Human Services. The office, known by its initials ORR, had traditionally served vulnerable immigrant youth coming to the United States without an adult. The agency took custody of those children while it worked to place them with a sponsor, often a relative, who would care for them. But thanks to the Trump administration’s family separation policy, ORR also began taking custody of the thousands of immigrant children forcibly separated from their parents in the past year.

The memorandum of agreement (MOA) transformed ORR from an agency intended to protect the best interests of children into an arm of the government’s deportation force with devastating consequences for children and sponsors alike, as the Associated Press reported on Wednesday. Thanks to the MOA and a new information-sharing system under which ORR is essentially conducting surveillance for DHS, there has been a nearly sixfold increase in children detained by the Trump administration. The ACLU strongly objected to these policy changes when they were first proposed.

In the past, ORR screened potential sponsors for children to evaluate their ability to provide for a child’s safety and well-being. ORR’s focus was, correctly, to ensure the care of children who had come to the U.S. seeking relief and protection. The agency did so by reuniting the majority of children who came alone to the U.S. with relatives already here. Most importantly, ORR had recognized that a potential sponsor’s immigration status does not determine whether a child will be safe and cared for by a sponsor. For ORR, the safety of the child was paramount.

The Trump administration, however, changed all this.

Now, DHS collects information about sponsors from ORR and is explicitly authorized to use that information to carry out arrests and deportations of sponsors and anyone living in their household. Moreover, instead of upholding protections for vulnerable childrenwho might otherwise be forced into labor, prostitution, or other abusive situations, the Trump administration has moved to undermine critical protections for those children. Instead, it is instituting new ways to criminalize and detain immigrant children and chill potential sponsors for detained children from coming forward.

The consequences stemming from the ORR policy change have been as predictable and they have been cruel. Because of ORR’s information-sharing agreement with ICE and CBP, potential sponsors, including those lawfully present here, have been deterred from coming forward to avoid exposing themselves or others in their household to DHS. And DHS has made clear its MOA with ORR isn’t an empty threat. The agency has already arrested dozens of undocumented immigrants who came forward as sponsors and “is pledging to go after more.”

The result has been a record-setting number of children being held by ORR. The number of children — as young as babies and toddlers — detained by our government has skyrocketed, from 2,400 in May 2017 to more than 14,000 in November 2018. Children are also being detained for longer periods of time, dramatically increasing the chances they will suffer severe and irreparable harm, according to the American Academy of Pediatrics. Meanwhile, there has been an influx of business to companies detaining children to the tune of over a billion dollars.

Right now, children continue to languish in ORR facilities when they could otherwise be released to relatives who could provide them with a safe and loving home. Faced with the possibility of detention, some children with valid asylum claims may completely abandon them and get deported back into harm’s way. The government has even forced some children into tent cities, like the one in Tornillo, Texas, with ORR facilities filled to capacity.

On Wednesday, the ACLU and over 100 civil rights, immigrant rights, privacy, and government transparency organizations sent a letter to Secretary of Homeland Security Kirstjen M. Nielsen and Health and Human Services Secretary Alex Azar demanding a reversal of these policies. The Trump administration is going after incredibly vulnerable children. It is unconscionable that the government would use information provided in order to facilitate a child’s reunification with a relative or other sponsor only to turn around and arrest the sponsor or members of their household.

The cruelty of the Trump administration knows no bounds. The solution to yet another Trump manufactured crisis is clear — it must rescind these policies and return ORR to its original mission of ensuring child safety and well-being. And if the administration doesn’t have the common decency to do so, Congress must check the executive and force its hand through legislation and cutting its funding.

 

Date

Wednesday, November 28, 2018 - 4:00pm

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