Human Rights

The Limits of Free Speech

Joyce Arthur

Hate speech should not be tolerated in the name of free speech. It has real and devastating effects on peoples' lives and risks their health and safety. It's harmful and divisive for communities and hampers social progress in fighting discrimination. Left unchecked, hate speech can lead to war and genocide. Although the right to free speech is a fundamental value, it should not be allowed to outweigh the basic human rights of other people, especially their right to life.

The popular catchphrase of free speech defenders is a quote attributed to Voltaire: “I disapprove of what you say, but I will defend to the death your right to say it.” Civil libertarians often defend and support the notion that the right to freely express offensive opinions is a bedrock human right that should not be abridged except under very narrow circumstances—typically for hate speech that directly incites violence against a person or group of persons. However, I support broader prosecution of hate speech—defined here as speech that disparages a person or class of persons based on an immutable characteristic (colour, race, origin, gender, sexual orientation, disability, and age), or their occupation, family or marital status, and religion or lack of religion. Proscribing hate speech more broadly would, I believe, foster a more inclusive, tolerant, and safer society.

Many western countries already do criminalize hate speech in a more encompassing way, although enforcement is often weak and spotty. A typical example is Canada, where it is illegal to “expose a person or persons to hatred or contempt…on the basis of a prohibited ground of discrimination” (Canadian Human Rights Act) and to “wilfully promote hatred against any identifiable group” (Criminal Code of Canada). The United States, however, stands almost alone in its veneration of free speech at almost any cost. The U.S. Supreme Court insists that the First Amendment protects hate speech unless it constitutes a “ true threat” or will incite imminent lawless action.

But societies should take action against hate speech without requiring that a few specific words by themselves must directly and immediately incite violence, or be likely to. That sets a very high bar and is difficult to prove. It also allows purveyors of hate to evade responsibility simply by not making explicit calls for violence. Further, our new digital world raises the stakes—the Internet has spawned a proliferation of hate speech along with useful information such as bomb-making instructions or the home addresses of abortion providers. This has enabled others to commit violence long after the words were first published.

Violent acts of hate are generally preceded by hate speech that is expressed publicly and repeatedly for years, including by public figures, journalists, leading activists, and even the state. Some examples include Anders Behring Breivik’s terrorist acts in Norway (June 2011), the assassination of Kansas abortion provider Dr. George Tiller (May 2009) and other abortion providers in the 1990’s, the Rwandan genocide against the Tutsis (1994), the ethnic cleansing of Bosnian Muslims in Bosnia-Herzegovina (1992-1995), and the Nazi Holocaust.

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Courts of law should be able to look at broader patterns of hate speech in the culture to determine whether a hateful atmosphere inspired or contributed to violence, or would likely lead to future violence. When hate speech is relatively widespread and acceptable (such as against Muslims or abortion providers), it’s not difficult to see the main precursor to violence—an escalation of negative behaviour or rhetoric against the person or group. Dr. George Tiller endured a previous assassination attempt and a decades-long campaign of persecution waged by the anti-abortion movement, which worsened over time, especially in the last year or two of the doctor’s life. Anders Behring Breivik had actively opposed multiculturalism for years and had immersed himself in Christian Right propaganda about the supposed threat of Muslim immigration to Europe, a view popularized only in recent years by a growing army of anti-Muslim bloggers and right-wing journalists.

As these examples illustrate, we can often pinpoint the main purveyors of hate speech that lead to violent crimes. In the Norway shootings, the killer Breivik relied heavily on writings from Peder Jensen (“Fjordman”), Pamela Geller, Robert Spencer, Mark Steyn, Jihad Watch, Islam Watch, Front Page Magazine, and others. Such individuals and groups should be charged with incitement to hatred and violence. Similar culpability for the assassination of Dr. George Tiller should rest on the shoulders of the extremist anti-abortion group Operation Rescue and Fox News commentator Bill O’Reilly.

In general, anyone spewing hate to an audience, especially on a repeated basis, could be held criminally responsible. This would include politicians, journalists, organizational leaders and speakers, celebrities, bloggers and hosts of online forums, and radical groups that target certain categories of people. We also need to hold people in accountable positions to a higher standard, such as government employees and contractors, ordained religious leaders, CEOs, and the like.

Criteria by which to assign culpability could include a speaker’s past record of prior hate speech against a particular person or group, how widely and frequently the views were disseminated, and the specific content and framing of their views. In cases where violence has already occurred, judges could determine how likely it was that the violent perpetrators had been exposed to someone’s specific hate speech, and hand down harsher sentences accordingly.

The Harms of Hate Speech

The apparent assumption of free speech defenders is that offensive speech is essentially harmless—that is, just words with no demonstrable link to consequences. But questioning whether speech can really incite someone to bad behaviour seems irresponsibly obtuse. Obviously, words have consequences and frequently inspire actions. A primary purpose of language is to communicate with others in order to influence them. If that weren’t so, there would be no multi-billion dollar advertising industry, no campaigns for political office, no motivational speakers or books, no citizen-led petitions, no public service announcements, and no church sermons, along with a myriad of other proven examples where speech leads others to act.

The majority of hate speech is targeted towards gays, women, ethnic groups, and religious minorities. It’s no coincidence that straight white men are generally the most ardent defenders of near-absolute free speech, because it’s very easy to defend hate speech when it doesn’t hurt you personally. But hate speech is destructive to the community at large because it is divisive and promotes intolerance and discrimination. It sets the stage for violence by those who take the speaker’s message to heart, because it creates an atmosphere of perceived acceptance and impunity for their actions. Left unchecked, it can lead to war and genocide, especially when the state engages in hate speech, such as in Nazi Germany.

Hate speech also has serious effects on its targets. Enduring hatred over many years or a lifetime will take a toll on most people. It can limit their opportunities, push them into poverty, isolate them socially, lead to depression or dysfunction, increase the risk of conflict with authority or police, and endanger their physical health or safety. In 1990, the Canadian Supreme Court stated that hate speech can cause “loss of self-esteem, feelings of anger and outrage and strong pressure to renounce cultural differences that mark them as distinct.” The court agreed that “hate propaganda can operate to convince listeners…that members of certain racial or religious groups are inferior,” which can increase “acts of discrimination, including the denial of equal opportunity in the provision of goods, services and facilities, and even incidents of violence.”

In democratic societies that stand for equality and freedom—often with taxpayer-funded programs that promote those values by assisting vulnerable groups—it makes no sense to tolerate hate speech that actively works to oppose those values. Further, hate speech violates the spirit of human rights codes and laws, diminishing their purpose and effect. A society that allows hate speech is a society that tolerates prejudice at every level—politically, economically, and socially—and pays the consequences through increased discrimination and violence.

Answering Objections from Hate Speech Defenders

The most popular solution to the problem of hate speech is “more free speech.” This seems to make sense on the surface, and sometimes works well in practice. For example, there are many outspoken atheists who do a good job of publicly defending themselves and their fellow atheists from the prejudice and hatred too often expressed by religious people. But even if the targets of hatred can ably defend themselves from verbal violence, why should they have to? Why should a democratic society privilege the right to free speech over the well-being and privacy of those with less privilege?

Most vulnerable groups, however, do not have a level playing field on which to respond to hate speech against them. They are often outnumbered, out-resourced, and out-funded by the haters, simply because of their disadvantaged position in society. Sexism and racism are still thriving in the 21st century, which means women and most minority groups have a harder time getting published and heard and taken seriously in mainstream society. Which brings us full circle—perhaps one of the reasons sexism and racism are still so prevalent in modern society is because free speech is exercised largely by the privileged at the expense of the unprivileged.

A common objection to prosecuting hate speech is that it might endanger speech that counters hate speech. For example, a critique may repeat the offending words and discuss their import, or it may subvert the hate message in a subtle or creative way that could be misunderstood by some. But context is everything when determining whether speech is actually hateful or not, so this objection seems nonsensical. Any reasonable judge should be able to discern the difference in intent or effect behind a hateful message and the speech that critiques it.

Another objection is that prosecuting hate speech removes accountability from those who actually commit the violence, turning violent perpetrators into victims of hate speech. But no-one is suggesting that hate speech causes people to act against their will or takes away their personal responsibility. Typically, hate speech creates an environment in which a person who is already sympathetic to the views of the speaker feels validated and encouraged to take action, with a reduced fear of punitive consequences and even anticipation of praise and support from the in-group that shares their views. Nothing prevents a hate-inspired murderer from being prosecuted in the same way as any other violent murderer—in fact, many countries mete out harsher penalties for hate-motivated crimes. But those who inspired the murderer should also be prosecuted separately under hate speech laws.

Many people seem to treat freedom of expression as an almost sacred, inviolable right, but this is far from the reality. In constitutional democracies, free speech is already justifiably restricted in a multitude of ways by law or policy, even in the United States. The quintessential example of prohibited speech is falsely shouting “Fire!” in a crowded theatre. Besides hate speech itself, some other generally accepted prohibitions of speech include:

  •  Sedition (advocating force as a way to change the government)
  • Threats
  • Defamation (libel and slander)
  • False or misleading advertising
  • Buffer zones around abortion clinics that prevent anti-abortion protesters from harassing patients and staff
  • Quiet zones near hospitals or schools
  • Municipal bylaws restricting the location, size, type, content, and display of signs, posters, objects, ads, etc.
  • Profanity on public airwaves
  • Publication refusal, censorship, and the right to edit enforced by news websites, online forums and blogs, newspapers, magazines, radio, and other media
  • Company confidentiality policies (such as employees being prohibited from sharing trade secrets or talking to the media)
  • Gag orders or publication bans in contracts, court cases, and settlements

In practice, courts will look at circumstances on a case-by-case basis to see where a balance should be struck between freedom of expression and some other value or right. No single right trumps another in all circumstances, not even the right to life. For example, Canada’s constitution (Section 1 of the Charter of Rights and Freedoms) allows a fundamental right such as freedom of expression to be limited to protect someone else’s fundamental rights, such as the right to life or liberty—or in the case of abortion, women’s right to safely access a necessary medical service, which courts have determined outweighs the protesters’ right to protest outside clinics.

Some current legal restrictions on free speech are not on the above list because they are clearly illegitimate. One of those is insulting your country’s head of state, currently illegal in at least eight countries, mostly in western Europe. This offence is called “lese-majesty,” a holdover from the days when kings were divine. But if political leaders are immune to criticism or ridicule, they have far too much power over the people and the country cannot be a true democracy. In general, the public must be allowed to pass judgment on public figures, because the latter owe their position to public support in the first place, which should not be coerced or bought. For example, public figures in the U.S. are not protected from defamation unless it was done with malice—knowledge of falsehood or reckless disregard for the truth. 

Many countries also criminalize blasphemy—the criticism of religious doctrines or practices. But the desire to protect religion from criticism is simply a reflection of the insecurity of believers who doubt their own beliefs. Blasphemy laws have more in common with hate speech actually, because they often result in hateful rhetoric and violent acts against the “blasphemers.” Further, many religious people have a tendency to confuse hate speech with dissent, such as Catholics who hurl accusations of “bigotry” when someone criticizes Church policies or dogma. But hate speech is personal—it is directed against people based on their identifiable characteristics. Dissent on the other hand is speech against other opinions, beliefs, or positions. Dissent is an essential component of a free democracy, and it includes blasphemy. In other words, you should be free to attack Catholic policies that protect abusive priests, but it would be hateful to say that all Catholic priests are pedophiles.

Examples of Anti-Abortion Hate Speech That Should Be Prosecuted

The history of violence against abortion providers makes a very strong case for prosecution of those who disseminate hate speech against them. Almost all of this violence has occurred in the U.S., which makes a compelling argument for limiting First Amendment protections of hate speech.

On a Sunday morning in May 2009, abortion provider Dr. George Tiller was assassinated while attending church in Wichita Kansas. The killer, Scott Roeder, had been planning the act for some time and had gleaned information about the doctor’s movements from Operation Rescue—an anti-abortion group that Roeder was actively involved in and donated money to. This radical group had moved to Wichita in 2002 for the sole purpose of driving Dr. Tiller out of business, and in the seven years leading up to his murder, Operation Rescue (OR) engaged in a relentless campaign of hate and harassment against him, including aggressive picketing, numerous articles and press releases, baseless criminal charges, frivolous lawsuits, and trumped-up grand juries convened against him. (Dr. Tiller was fully vindicated in every legal battle.)

Two years before the assassination, Roeder posted on OR’s blog, urging people to attend Dr. Tiller’s church. He himself attended the church a few times, and also participated in OR’s pickets outside Dr. Tiller’s clinic. Roeder was in regular contact with OR’s President Troy Newman, as well as Senior Policy Advisor Cheryl Sullenger, who was convicted in 1988 of conspiring to bomb a California abortion clinic. When Roeder was arrested, Sullenger’s phone number was found on a post-it note on the dash of his car. Sullenger later admitted having several previous conversations with Roeder, in which she gave him information on Dr. Tiller’s habits and whereabouts, including his trial dates. In the months before the murder, Roeder had attended at least one court hearing—sitting beside OR’s President Troy Newman—to hear Dr. Tiller defend himself against scurrilous charges brought by OR.

It’s clear that Roeder was not a “lone wolf.” Perhaps Roeder did not directly involve anyone else in his plans, but no-one develops their views in a vacuum. Dr. Tiller’s murder was the natural culmination of over 20 years of anti-abortion harassment and violence directed at him and his clinic, much of it by Operation Rescue. Roeder had been immersed in OR’s violent anti-abortion rhetoric for years, so his beliefs and compulsions were fed by that environment, and thrived on it. Obviously, it played an encouraging role in the violence he committed.

Another key person who helped fuel the fire was Fox TV commentator Bill O’Reilly, who has about 3 million listeners. Between 2005 and 2009, Bill O’Reilly and his guest hosts talked about Dr. Tiller on 29 episodes, including just one month before the assassination. The most common epithet repeated many times by O’Reilly was: “Tiller the Baby Killer.” Other comments by O’Reilly included: “[Tiller] destroys fetuses for just about any reason right up until the birth date for $5,000.” He ‘s guilty of “Nazi stuff.” “This is the kind of stuff that happened in Mao’s China, Hitler’s Germany, Stalin’s Soviet Union.” He “has blood on his hands.” He’s “a moral equivalent to NAMBLA and al-Qaida.” He operates a “death mill” and a “business of destruction.” “I wouldn’t want to be [him] if there is a Judgment Day.” Although O’Reilly didn’t specifically incite someone to murder Dr. Tiller, he put him in the cross-hairs, providing enough motivation and encouragement for someone to carry out the unspoken deed.

Of course, it wasn’t just Dr. Tiller and his clinic that were the targets of ongoing harassment and inflammatory hateful rhetoric. The reign of terror directed at clinics and providers across North America has been going on for 35 years—including 9 previous murders and 20 attempted murders of doctors or clinic staff, 100’s of arsons and bombs and butyric acid attacks, and 1000’s of death threats, stalking, clinic invasions, vandalism, aggressive pickets, and hate mail. Some shootings in the early 1990’s were directly preceded by “Wanted Posters” put out by anti-abortion groups on the doctors, complete with their home and clinic addresses and often their photographs. Doctors David Gunn and John Britton were murdered by anti-abortion extremists and had been featured on wanted posters, along with George Tiller, who was shot and wounded in 1993. (The murder of a fourth doctor on a wanted poster, George Patterson, could not be conclusively linked to an anti-abortion extremist.) The posters were deemed by a federal court in 2002 to be a “true threat” under the FACE Act, federal legislation that protects clinics from violence. Noting that the posters had preceded the murders, the court said it was the “use of the ‘wanted’-type format in the context of the poster pattern—poster followed by murder—that constitutes the threats,” not the language itself. With this decision, the judges overturned a lower court ruling that had deemed the posters and a related website to be “protected speech” because they did not directly threaten violence.

Conclusion

When people and courts defend hate speech against abortion providers as “protected speech,” it must be asked: Why are abortion providers required to risk their lives so their persecutors can have free speech rights? Why should doctors constantly have to look over their shoulder in fear, go to work in bullet-proof vests, pay out of pocket for security guards and other expensive safety measures, keep their home address a secret and their curtains permanently drawn shut, and see their children ostracized and bullied at school, just so their persecutors have the right to call them “baby killers”? Why does the right to free speech allow members of this vulnerable minority to be openly defamed and targeted for decades until they’re finally assassinated? And why do the families of the slain victims have to suffer in their grief and loss, because free speech was deemed more important than the lives of their loved ones?

The idea that vulnerable persons and groups should have to tolerate hate speech against them in the name of freedom of expression—often over decades or a lifetime—is offensive. We’re talking about peoples’ lives after all—this is not just a philosophical debate. The right to free speech is a fundamental value, but it should not be allowed to outweigh the basic human rights of other people, especially their right to life.

Analysis Human Rights

From Protected Class to High-Priority Target: How the ‘System Is Rigged’ Against Unaccompanied Migrant Children

Tina Vasquez

Vulnerable, undocumented youth who pose no real threat are being stripped of their right to an education and instead sit in detention awaiting deportation.

This is the first article in Rewire’s two-part series about the U.S. immigration system’s effects on unaccompanied children.

Earlier this month, three North Carolina high school students were released from a Lumpkin, Georgia, detention center after spending more than six months awaiting what seemed like their inevitable fate: deportation back to conditions in Central America that threatened their lives.

Wildin David Guillen Acosta, Josue Alexander Soriano Cortez, and Yefri Sorto-Hernandez were released on bail in the span of one week, thanks to an overwhelming community effort involving pro bono attorneys and bond money. However, not everyone targeted under the same government operation has been reprieved. For example, by the time reports emerged that Immigration and Customs Enforcement (ICE) had detained Acosta on his way to school in Durham, North Carolina, the government agency had already quietly deported four other young people from the state, including a teenage girl from Guatemala who attended the same school.

Activated in January, that program—Operation Border Guardian—continues to affect the lives of hundreds of Central American migrants over the age of 18 who came to the United States as unaccompanied children after January 2014. Advocates believe many of those arrested under the operation are still in ICE custody.

Department of Homeland Security (DHS) Secretary Jeh Johnson has said that the goal of Operation Border Guardian is to send a message to those in Central America considering seeking asylum in the United States. But it’s not working, as Border Patrol statistics have shown. Furthermore, vulnerable, undocumented youth who pose no real threat are being stripped of their right to an education and instead sit in detention awaiting deportation. These youth arrived at the border in hopes of qualifying for asylum, but were unable to succeed in an immigration system that seems rigged against them.

“The laws are really complicated and [young people] don’t have the community support to navigate this really hostile, complex system. That infrastructure isn’t there and unless we support asylum seekers and other immigrants in this part of the country, we’ll continue to see asylum seekers and former unaccompanied minors receive their deportation orders,” said Julie Mao, the enforcement fellow at the National Immigration Project of the National Lawyers Guild.

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“A Grossly Misnamed” Operation

In January, ICE conducted a series of raids that spanned three southern states—Georgia, North Carolina, and Texas—targeting Central American asylum seekers. The raids occurred under the orders of Johnson, who has taken a hardline stance against the more than 100,000 families who have sought asylum in the United States. These families fled deadly gang violence in El Salvador, Honduras, and Guatemala in recent years. In El Salvador, in particular, over 400 children were murdered by gang members and police officers during the first three months of 2016, doubling the country’s homicide rate, which was already among the highest in the world.

ICE picked up some 121 people in the early January raids, primarily women and their young children. Advocates argue many of those arrested were detained unlawfully, because as people who experienced severe trauma and exhibited symptoms of post-traumatic stress disorder, generalized anxiety, and depression, they were disabled as defined under the Rehabilitation Act of 1973, and ICE did not provide reasonable accommodations to ensure disabled people were not denied meaningful access to benefits or services.

Just a few weeks later, on January 23, ICE expanded the raids’ focus to include teenagers under Operation Border Guardian, which advocates said represented a “new low.”

The media, too, has also criticized DHS for its seemingly senseless targeting of a population that normally would be considered refugees. The New York Times called Operation Border Guardian “a grossly misnamed immigration-enforcement surge that went after people this country did not need to guard against.”

In response to questions about its prioritization of former unaccompanied minors, an ICE spokesperson told Rewire in an emailed statement: “As the secretary has stated repeatedly, our borders are not open to illegal migration. If someone was apprehended at the border, has been ordered removed by an immigration court, has no pending appeal, and does not qualify for asylum or other relief from removal under our laws, he or she must be sent home. We must and we will enforce the law in accordance with our enforcement priorities.”

DHS reports that 336 undocumented Central American youth have been detained in the operation. It’s not clear how many of these youth have already been deported or remain in ICE custody, as the spokesperson did not respond to that question by press time.

Acosta, Cortez, Sorto-Hernandez, and three other North Carolina teenagersSantos Geovany Padilla-Guzman, Bilmer Araeli Pujoy Juarez, Pedro Arturo Salmeron—have become known as the NC6 and the face of Operation Border Guardian, a designation they likely would have not signed up for.

Advocates estimate that thousands of deportations of low-priority migrants—those without a criminal history—occur each week. What newly arrived Central American asylum seekers like Acosta could not have known was that the federal government had been laying the groundwork for their deportations for years.

Asylum Seekers Become “High-Priority Cases”

In August 2011, the Obama administration announced it would begin reviewing immigration cases individually, allowing ICE to focus its resources on “high-priority cases.” The assumption was that those who pose a threat to public safety, for example, would constitute the administration’s highest priority, not asylum-seeking high school students.

But there was an indication from DHS that asylum-seeking students would eventually be targeted and considered high-priority. After Obama’s announcement, ICE released a statement outlining who would constitute its “highest priorities,” saying, “Specifically individuals who pose a threat to public safety such as criminal aliens and national security threats, as well as repeat immigration law violators and recent border entrants.”

In the years since, President Obama has repeatedly said “recent border crossers” are among the nation’s “highest priorities” for removal—on par with national security threats. Those targeted would be migrants with final orders of removal who, according to the administration, had received their day in court and had no more legal avenues left to seek protection. But, as the American Civil Liberties Union (ACLU) reported, “recent border entrant” is a murky topic, and it doesn’t appear as if all cases are being reviewed individually as President Obama said they would.

“Recent border entrant” can apply to someone who has been living in the United States for three years, and a border removal applies “whenever ICE deports an individual within three years of entry—regardless of whether the initial entry was authorized—or whenever an individual is apprehended by Customs and Border Protection (CBP),” explained Thomas Homan, the head of ICE’s removal operations in a 2013 hearing with Congress, the ACLU reported.

Chris Rickerd, policy counsel at the American Civil Liberties Union’s Washington Legislative Office, added that “[b]ecause CBP refuses to screen the individuals it apprehends for their ties to the U.S., and DHS overuses procedures that bypass deportation hearings before a judge, many ‘border removals’ are never fully assessed to determine whether they have a legal right to stay.”

Over the years, DHS has only ramped up the department’s efforts to deport newly arrived immigrants, mostly from Central America. As the Los Angeles Times reported, these deportations are “an attempt by U.S. immigration officials to send a message of deterrence to Central America and avoid a repeat of the 2014 crisis when tens of thousands of children from Honduras, El Salvador and Guatemala arrived at the U.S. border.”

This is something Mao takes great issue with.

“These raids that we keep seeing are being done in order to deter another wave of children from seeking asylum—and that is not a permissible reason,” Mao said. “You deport people based on legality, not as a way of scaring others. Our country, in this political moment, is terrorizing young asylum seekers as a way of deterring others from presenting themselves at the border, and it’s pretty egregious.”

There is a direct correlation between surges of violence in the Northern Triangle—El Salvador, Guatemala, and Honduras—and an uptick in the number of asylum seekers arriving in the United States. El Salvador, known as the murder capital of the word, recently saw an explosion of gang violence. Combine that with the possible re-emergence of so-called death squads and it’s clear why the number of Salvadoran family units apprehended on the southern border increased by 96 percent from 2015 to 2016, as Fusion reported.

Much like Mao, Elisa Benitez, co-founder of the immigrants rights’ organization Alerta Migratoria NC, believes undocumented youth are being targeted needlessly.

“They should be [considered] low-priority just because they’re kids, but immigration is classifying them at a very high level, meaning ICE is operating like this is a population that needs to be arrested ASAP,” Benitez said.

The Plight of Unaccompanied Children

Each member of the NC6 arrived in the United States as an unaccompanied child fleeing violence in their countries of origin. Acosta, for example, was threatened by gangs in his native Honduras and feared for his life. These young people should qualify as refugees based on those circumstances under international law. In the United States, after they present themselves at the border, they have to prove to an immigration judge they have a valid asylum claim—something advocates say is nearly impossible for a child to do with no understanding of the immigration system and, often, with no access to legal counsel—or they face deportation.

Unaccompanied children, if not immediately deported, have certain protections once in the United States. For example, they cannot be placed into expedited removal proceedings. According to the American Immigration Council, “they are placed into standard removal proceedings in immigration court. CBP must transfer custody of these children to Health and Human Services (HHS), Office of Refugee Resettlement (ORR), within 72 hours.”

While their court proceedings move forward, HHS’s Office of Refugee Resettlement manages the care of the children until they can ideally be released to their parents already based in the country. Sometimes, however, they are placed with distant relatives or U.S. sponsors. Because HHS has lowered its safety standards regarding placement, children have been subjected to sexual abuse, labor trafficking, and severe physical abuse and neglect, ThinkProgress has reported.

If while in the care of their family or a sponsor they miss a court date, detainment or deportation can be triggered once they turn 18 and no longer qualify for protections afforded to unaccompanied children. 

This is what happened to Acosta, who was placed with his mother in Durham when he arrived in the United States. ICE contends that Acosta was not targeted unfairly; rather, his missed court appearance triggered his order for removal.

Acosta’s mother told local media that after attending his first court date, Acosta “skipped subsequent ones on the advice of an attorney who told him he didn’t stand a chance.”

“That’s not true, but it’s what they were told,” Benitez said. “So, this idea that all of these kids were given their day in court is false. One kid [we work with] was even told not to sign up for school because ‘there was no point,’ it would just get him deported.”

Benitez told Rewire the reasons why these young people are being targeted and given their final orders of removal need to be re-examined.

Sixty percent of youth from Central America do not ever have access to legal representation throughout the course of their case—from the time they arrive in the United States and are designated as unaccompanied children to the time they turn 18 and are classified as asylum seekers. According to the ACLU, 44 percent of the 23,000 unaccompanied children who were required to attend immigration court this year had no lawyer, and 86 percent of those children were deported.

Immigration attorneys and advocates say that having a lawyer is absolutely necessary if a migrant is to have any chance of winning an asylum claim.

Mao told Rewire that in the Southeast where Acosta and the other members of the NC6 are from, there is a pipeline of youth who arrived in the United States as unaccompanied children who are simply “giving up” on their valid asylum claims because navigating the immigration system is simply too hard.

“They feel the system is rigged, and it is rigged,” Mao said.

Mao has been providing “technical assistance” for Acosta and other members of the NC6. Her organization doesn’t represent individuals in court, she said, but the services it provides are necessary because immigration is such a unique area of law and there are very few attorneys who know how to represent individuals who are detained and who have been designated unaccompanied minors. Those services include providing support, referrals, and technical assistance to advocates, community organizations, and families on deportation defense and custody issues.

Fighting for Asylum From Detention

Once arrested by ICE, there is no telling if someone will linger in detention for months or swiftly be deported. What is known is that if a migrant is taken by ICE in North Carolina, somewhere along the way, they will be transferred to Lumpkin, Georgia’s Stewart Detention Center. As a local paper reported, Stewart is “the last stop before they send you back to whatever country you came from.”

Stewart is the largest detention center in the country, capable of holding 2,000 migrants at any time—it’s also been the subject of numerous investigations because of reports of abuse and inadequate medical care. The detention center is run by Corrections Corporation of America, the country’s largest private prison provider and one that has become synonymous with maintaining inhumane conditions inside of its detention centers. According to a report from the National Immigrant Justice Center, Stewart’s remote location—over two hours away from Atlanta—hinders the facility from attracting and retaining adequate medical staff, while also creating barriers to visitation from attorneys and family members.

There’s also the matter of Georgia being notoriously tough on asylum seekers, even being called the “worst” place to be an undocumented immigrant. The Huffington Post reported that “Atlanta immigration judges have been accused of bullying children, badgering domestic violence victims and setting standards for relief and asylum that lawyers say are next to impossible to meet.” Even more disconcerting, according to a project by Migrahack, which pairs immigration reporters and hackers together, having an attorney in Georgia had almost no effect on whether or not a person won their asylum case, with state courts denying up to 98 percent of asylum requests. 

Acosta, Cortez, and Sorto-Hernandez spent over six months in Stewart Detention Center before they were released on baila “miracle” according to some accounts, given the fact that only about 5 percent of those detained in Stewart are released on bond.

In the weeks after ICE transferred Acosta to Stewart, there were multiple times Acosta was on the verge of deportation. ICE repeatedly denied Acosta was in danger, but advocates say they had little reason to believe the agency. Previous cases have made them wary of such claims.

Advocates believe that three of the North Carolina teens who were deported earlier this year before Acosta’s case made headlines were kept in detention for months with the goal of wearing them down so that they would sign their own deportation orders despite having valid asylum claims.

“They were tired. They couldn’t handle being in detention. They broke down and as much as they feared being returned to their home countries, they just couldn’t handle being there [in detention] anymore. They’d already been there for weeks,” Benitez said.

While ICE claims the average stay of a migrant in Stewart Detention Center is 30 days, the detention center is notorious for excessively long detainments. Acosta’s own bunkmate had been there over a year, according to Indy Week reporter David Hudnall.

As Hudnall reported, there is a massive backlog of immigration cases in the system—474,000 nationally and over 5,000 in North Carolina.

Mao told Rewire that the amount of time the remaining members of the NC6 will spend in detention varies because of different legal processes, but that it’s not unusual for young people with very strong asylum cases to sign their rights away because they can’t sustain the conditions inside detention.

Pedro Arturo Salmeron, another NC6 member, is still in detention. He was almost deported, but Mao told Rewire her organization was able to support a pro bono attorney in appealing to the Board of Immigration Appeals (BIA) to stop proceedings.

Japeth Matemu, an immigration attorney, recently told Indy Week’s David Hudnall that “the BIA will tell you that it can’t modify the immigration judge’s ruling unless it’s an egregious or obvious miscarriage of justice. You basically have to prove the judge is off his rocker.”

It could take another four months in detention to appeal Salmeron’s case because ICE continues to refuse to release him, according to the legal fellow.

“That’s a low estimate. It could be another year in detention before there is any movement in his case. We as an organization feel that is egregious to detain someone while their case is pending,” Mao said. “We have to keep in mind that these are kids, and some of these kids can’t survive the conditions of adult prison.”

Detention centers operate as prisons do, with those detained being placed in handcuffs and shackles, being stripped of their personal belongings, with no ability to move around freely. One of Acosta’s teachers told Rewire he wasn’t even able to receive his homework in detention.

Many of those in detention centers have experienced trauma. Multiple studies confirm that “detention has a profoundly negative impact on young people’s mental and physical well-being” and in the particular case of asylum seekers, detention may exacerbate their trauma and symptoms of post-traumatic stress disorder. 

“People are so traumatized by the raids, and then you add detention on top of that. Some of these kids cannot psychologically and physically deal with the conditions in detention, so they waive their rights,” Mao said.

In March, Salmeron and fellow NC6 member Yefri Sorto-Hernandez received stays of deportation, meaning they would not face immediate deportation. ICE says a stay is like a “legal pause.” During the pause, immigration officials decide if evidence in the case will be reconsidered for asylum. Sorto-Hernandez was released five months later.

Benitez said that previously when she organized around detention, a stay of deportation meant the person would get released from detention, but ICE’s decision to detain some of the NC6 indefinitely until their cases are heard illustrates how “weirdly severe” the agency is being toward this particular population. Mao fears this is a tactic being used by ICE to break down young people in detention.

“ICE knows it will take months, and frankly up to a year, for some of these motions to go through the court system, but the agency is still refusing to release individuals. I can’t help but think it’s with the intention that these kids will give up their claims while suffering in detention,” Mao said.

“I think we really have to question that, why keep these young people locked up when they can be with their communities, with their families, going to school? ICE can release these kids now, but for showmanship, ICE is refusing to let them go. Is this who we want to be, is this the message we want to send the world?” she asked.

In the seven months since the announcement of Operation Border Guardian, DHS has remained quiet about whether or not there will be more raids on young Central American asylum seekers. As a new school year approaches, advocates fear that even more students will be receiving their orders for removal, and unlike the NC6, they may not have a community to rally around them, putting them at risk of quietly being deported and not heard from again.

Analysis Law and Policy

California Bill Aimed at Anti-Choice Videos Draws Free Speech Concerns

Amy Littlefield

“We wanted to make sure that we updated ... laws to kind of reflect a changing world and to make sure that we actually protect the doctors who provide these important services to women,” California Assemblymember Jimmy Gomez said, adding that his legislation would also protect patient safety and access to abortion.

A California bill that would make it a crime to distribute secret recordings of health-care providers—like the ones David Daleiden used in his smear campaign against Planned Parenthood—has cleared a legislative hurdle, but faces opposition from media groups and civil liberties advocates, who say the legislation is overly broad.

It is already illegal in California to record, whether in audio or video form, a confidential communication without the consent of all parties involved. But California Assemblymember Jimmy Gomez, who introduced AB 1671, told Rewire that while current law specifically forbids the distribution of illegally recorded telephone calls, there is no similar protection for videos.

“We wanted to make sure that we updated those laws to kind of reflect a changing world and to make sure that we actually protect the doctors who provide these important services to women,” Gomez said, adding that his legislation would also protect patient safety and access to abortion.

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AB 1671 makes it a crime if someone who violates California’s existing law against secret recordings “intentionally discloses or distributes, in any manner, in any forum, including, but not limited to, Internet [websites] and social media, or for any purpose, the contents of a confidential communication with a health care provider that is obtained by that person.”

Violators could be jailed for up to a year and fined up to $2,500, penalties similar to those already in place for making illegal recordings. But the new measure specifies that for both recording and distribution, the fines apply to each violation; that means someone like Daleiden, who circulated his videos widely, could quickly rack up heavy fines. Repeat offenders could face fines of up to $10,000 per violation.

The effort to pass the bill comes as abortion providers face a rising tide of threats and secret recordings. Besides Daleiden’s efforts, covertly recorded footage of clinic staff has cropped up in the documentary HUSH and in videos released by the anti-choice group Live Action. Planned Parenthood reported a ninefold increase in harassment at its health centers in July last year, when Daleiden began releasing the deceptively edited videos he claimed showed the organization was illegally profiting from fetal tissue donation. (Multiple federal and state investigations have found no wrongdoing by Planned Parenthood.) The National Abortion Federation recorded an “unprecedented” spike in hate speech and threats against abortion providers last year, peaking with the fatal shooting of three people at a Colorado Springs Planned Parenthood.

Increased Threats

“It was so alarming and so extensive that our staff that normally tracks threats and violence against providers could not keep up,” NAF President and CEO Vicki Saporta told Rewire. The organization was forced to hire an outside security firm.

Beth Parker, chief legal counsel for Planned Parenthood Affiliates of California, told Rewire the new legislation is needed to protect the safety of abortion providers.

“If our providers aren’t safe, then they won’t provide, and we won’t have access to reproductive health care,” Parker said in a phone interview.

Daleiden’s group, the Center for Medical Progress, is based in California, and much of his covert recording took place there. Of the four lawsuits he and his group face over the recordings, three have been filed in federal court in California. Yet so far, the only criminal charges against Daleiden have been lodged in Texas, where a grand jury tasked with investigating Planned Parenthood instead indicted Daleiden and fellow anti-choice activist Sandra Merritt for purportedly using fake California driver’s licenses as part of their covert operation. The charges were later dropped for procedural reasons.

Last summer, California Attorney General Kamala Harris announced plans to review whether the Center for Medical Progress violated any laws, and in April, state investigators raided Daleiden’s apartment. Harris has not yet announced any charges. Daleiden has accused officials of seizing privileged information, a claim the attorney general’s office told Rewire it is working on resolving in court.

Harris, meanwhile is running for Senate; her campaign website describes her as “a champion for a woman’s right to choose.”

“We think there is an excellent case and the attorney general should have prosecuted,” Beth Parker of Planned Parenthood Affiliates of California told Rewire. “Daleiden did more than just publish the videos, as we know, I mean he falsified driver’s licenses, he falsified credit cards, he set up a fake company. I mean, we have, as you know, a major civil litigation against him and his conspirators. I just can’t answer to why the attorney general hasn’t prosecuted.”

Parker said AB 1671 could increase incentives for law enforcement to prosecute such cases.

“What we’ve heard as we’ve been working [on] the bill is that criminal law enforcement almost never prosecutes for the violation of illegal recording,” Parker said. “It’s just too small a crime in their view.”

Assemblymember Gomez also said he hopes his bill will facilitate the prosecution of people like Daleiden, and serve as a deterrent against people who want to use illegal recordings to “undermine the fact that people have this right to have control over their bodies.”

“That’s the hope, is that it actually does change that landscape, that DAs will be able to make a better case against individuals who illegally record and distribute,” Gomez said.

Vicki Saporta of the National Abortion Federation says the actions of law enforcement matter when it comes to the safety of abortion providers.

“There’s certainly a correlation between law enforcement’s response to criminal activity aimed at abortion providers and the escalation or de-escalation of that activity,” Saporta said, citing the federal government’s response to the murders of abortion providers in the 1990s, which included the deployment of federal marshals to guard providers and the formation of a task force by then-Attorney General Janet Reno. “We had more than a decade of decreases in extreme violence aimed at abortion providers, and that ended in 2009 with the murder of Dr. [George] Tiller.”

But media and civil liberties groups, including the Electronic Frontier Foundation and American Civil Liberties Union of California, have expressed concerns the bill could sweep up journalists and whistleblowers.

“The passing of this law is meant to chill speech, right, so that’s what they want to do,” Nikki Moore, legal counsel of the California Newspaper Publishers Association, which opposes the legislation, said in an interview with Rewire. In addition to potential criminal penalties, the measure would create new civil liabilities that Moore says could make journalists hesitant to publish sensitive information.  

“A news organization is going to look at it and say, ‘Are we going to get sued for this? Well, there’s a potential, so we probably shouldn’t distribute it,’” Moore said.

As an example of the kind of journalism that could be affected by the bill, Moore cited a Los Angeles Times investigation that analyzed and helped debunk Daleiden’s footage.

“Planned Parenthood’s bill would criminalize that behavior, so it’s short-sighted of them if nothing else,” Moore said.

Assemblymember Gomez disagrees about the scope of the bill. “We have tailored it narrowly to basically say it applies to the person who illegally recorded the video and also is distributing that video, so it doesn’t apply to, say, a news agency that actually ends up getting the video,” he said.

Late last week, the California Senate Appropriations Committee released AB 1671 to the state senate floor on a vote of 5 to 2, with Republicans opposing it. The latest version has been amended to remove language that implicated “a person who aids and abets” the distribution of secret recordings, wording civil liberties groups said could be used to sweep in journalists and lawyers. The latest draft also makes an exception for recordings provided solely to law enforcement for investigations.

But the ACLU of California and the California Newspaper Publishers Association said they still oppose the bill. (The Electronic Frontier Foundation said it is still reviewing the changes.)

“The likelihood of a news organization being charged for aiding and abetting is certainly reduced” under the new language, Moore said. But provisions already exist in the California penal code to implicate those accused of aiding and abetting criminal behavior.

“You can imagine scenarios where perhaps the newspaper published it and it’s an anonymous source, and so now they’re aiding and abetting the distribution, and they’re the only person that the prosecutor knows might have been involved,” Moore says.

In letter of opposition sent in June to Assemblymember Gomez, Kevin Baker, legislative director of the ACLU of California, raised concerns about how the measure singles out the communications of health-care providers.

“The same rationale for punishing communications of some preferred professions/industries could as easily be applied to other communications —e.g., by law enforcement, animal testing labs, gun makers, lethal injection drug producers, the petroleum industry, religious sects,” Baker wrote.

Gomez said there could be further changes to the bill as talks aimed at resolving such opposition continue. An earlier version passed the assembly easily by a vote of 52 to 26. The latest draft faces an August 31 deadline to pass the senate and a concurrence vote in the assembly before the end of the session. After that, Gomez said he hopes California Gov. Jerry Brown (D) will sign it.

“If we can strike the right balance [between the rights of privacy and free speech], my hope is that it’s hard for him not to support it,” Gomez said. 

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