Harvard Law Review 4/12/2019
Recent Case : 890 F.3d 164 (5th Cir. 2018) Freedom of speech is the “indispensable condition†of “nearly every other form of freedom.†Ignoring this principle, the Texas legislature recently sought to constrain local officials’ speech on politically important issues. In May 2017, Texas adopted Senate Bill 4.The law punished cities, counties, community colleges, and their employees and elected officials for “adopt[ing], enforc[ing], or endors[ing] a policy†that limited federal immigration enforcement. SB 4 not only prohibited local government entities from immigration-related actions; it also restricted individuals’ speech about those actions. Recently, in City of El Cenizo v. Texas, the Fifth Circuit preliminarily enjoined SB 4 only so far as it prohibited elected officials from endorsing certain immigration policies. The court left the same provision regarding endorsement intact for appointed officials and other employees. Although judicial restraint may have counseled in favor of this narrow holding, First Amendment values and the circumstances of the case should have pushed the court to uphold the plaintiffs’ facial challenges.
The Texas state legislature passed SB 4 in May 2017. During the bill’s drafting, Texas Governor Greg Abbott explained the purpose of the bill as “putting the hammer down†on sanctuary cities. He promised to “assert[] fines†and “seek[] court orders†to put officials in such cities “behind bars.â€
As passed, SB 4 contained two main components. First, SB 4 required local law enforcement to comply with federal ICE detainer requests. Second, SB 4 mandated that a “local entity†could not “adopt, enforce, or endorse†policies under which the entity “prohibit[ed] or materially limit[ed]†immigration enforcement.
Under SB 4, a “local entity†included the “governing body†of cities and counties, as well as the officers and employees of that entity, including the sheriff, local police department, and district attorney. SB 4 imposed civil and criminal penalties. Local entities found to have violated SB 4 were subject to $1000 to $1500 fines for a first violation and $25,000 to $25,500 fines for subsequent violations, with each day of continuing violation counted as a separate violation. Elected or appointed officials in violation were also subject to removal from office.
Immigrants’ rights groups criticized SB 4 as “likely to deter business[]†and harmful to public safety. The Texas Major Cities Chiefs and the Texas Police Chiefs Association also expressed opposition to the bill. Several Texas cities, counties, local officials, and advocacy groups challenged SB 4 before it went into effect, seeking a preliminary injunction.
The district court issued a preliminary injunction in August 2017, finding the plaintiffs likely to prevail on several claims. The court found that SB 4’s prohibition on the endorsement of certain policies (“endorse provisionâ€) violated the First and Fourteenth Amendments for three reasons. First, the court found that the endorse provision was unconstitutionally overbroad. The court explained that the First Amendment protects “statements by public officials on matters of public concern.†Public officials, “[w]hether elected, appointed, or otherwise employed,†have the same First Amendment rights as private citizens to speak on matters of public concern such as immigration enforcement. SB 4 silenced the speech of public officials on that issue, and so “reached a substantial amount of constitutionally protected conduct. The law constrained a “long list of identified speakers†and had no time, place, or manner restrictions. Even the bill’s author could not explain the full reach of the endorse provision, except that he intended for it to be sweeping.
Second, the court found SB 4 discriminated by viewpoint. The law targeted and punished speakers on the basis of their views on local immigration policy. Speech critical of existing immigration law was effectively prohibited, while speech favoring it was permitted. Third, the court found SB 4 impermissibly vague. The statute did not specify what conduct or speech constituted “endorsement.†It therefore failed to give citizens fair notice and could enable arbitrary enforcement by the state. In light of these failings, the district court enjoined several provisions of SB 4. Texas then appealed the preliminary injunction.
The Fifth Circuit affirmed in part and vacated in part. Writing for the panel, Judge Jones upheld nearly all of SB 4, save for the endorse provision as applied to elected officials. Judge Jones explained that the word “endorse†was not “readily susceptible†to a narrowing construction that would avoid constitutional concerns about prohibiting the core political speech of elected officials. Texas had argued that the court should interpret “endorse†to mean “sanction†— “the use of official authority to ratify or authorize†— so that the endorse provision would affect only official speech. The court rejected this interpretation, reasoning that it would render “endorse†surplusage, because SB 4 already included the verbs “adopt†and “enforce.†The court then acknowledged that elected officials’ “endorsement†of policies contrary to SB 4, without an accompanying action to “adopt†or “enforce†such policies, was core political speech.
More:
https://harvardlawreview.org/2019/04/city-of-el-cenizo-v-texas/
