Is Saving Migrant Lives Speech?

Welcome back to the special summer series of the IfRFA Newsletter. We are thankful to Marlene Berroa for writing this edition! If you missed our last newsletter by Nneka Onyekwuluje, you can read that here.
 

 
Is humanitarian aid for migrants to be criminalized or to be protected as speech? The answer may ultimately depend on your feelings about U.S. immigration policies.
 
If you have been on Twitter lately, you may have come across this image:

Image from Southern Border Communities Coalition:
https://www.southernborder.org/100_mile_border_enforcement_zone

It highlights the cities that are within the 100-Mile Border Zone. The 100-Mile Border Zone is the area in which the U.S. Customs and Border Protection (“CBP”) is allowed to operate. In theory, there are limits to CBP’s power to conduct its operations. However, in practice, CBP has turned the 100-Mile Border Zone into a constitutional-gray area. The recent interest in the 100-Mile Border Zone comes from a Supreme Court case that furthers the practical implications of a Constitution-free border and is particularly harmful to our First Amendment protections, as the Court has limited the ability to hold individual federal officials accountable for First Amendment violations. 
 
Decades of border militarization and punitive immigration policies have forced migrants to take dangerous routes in places like the Sonoran Desert in Arizona. These federal policies rely on the unforgiving nature of the desert – like the risk of dehydration – to deter migration. Many citizens and non-citizens who live on the border see the harsh realities of these federal policies, become morally opposed to them, and want to aid. The aid or humanitarian aid provided is simple – leaving resources that can help save the lives of migrants – can be viewed as an act of human kindness. It is leaving water jugs in the desert, hoping someone taking that treacherous path can survive. It’s operating a barn in the desert where people risking their lives for a better one can find food, blankets, and a safe place from the dangerous landscape. 
 
Now, what happens when U.S. citizens who live and work within the 100-mile border zone engage in conduct – such as humanitarian aid – that directly contradicts U.S. federal policies and laws? The federal government has taken an aggressive and retaliatory stance against organizations and activists that provide humanitarian aid to migrants. For example, in 2018, Border Patrol agents arrested and criminally prosecuted Scott Warren for harboring and conspiracy. Furthermore, organizations like No More Deaths (“NMD”) – also known as No Mas Muertes – which engages in humanitarian aid in Southern Arizona, have been targeted by Border Patrol agents and other federal officials for their humanitarian assistance. NMD’s conduct, leaving water, food, and blankets, and honoring the remains of those found dead in the desert are symbolic expressions that the U.S. government has treated as hostile.
 
In an article titled ‘Water is Life!’ (and Speech!): Death, Dissent and Democracy in the Borderland, Professor Jason A. Cade argues that NMD’s conduct is more than just good acts. They are symbolic expressions that convey speech and should be seen as protected by the First Amendment. Professor Cade states, “[t]heir conduct and the extensive messaging around it are, in fact, deeply expressive. In a pointed and meaningful way, they act as citizen dissenters, engaging in a form of open protest at the precise location where their government is pursuing policies that the members morally condemn and desire to change.” Additionally, the government’s response, enacting laws that criminalize their conduct, merits First Amendment scrutiny because the laws act as a form of suppression, chilling their speech.
 
The Supreme Court has long established that expressive conduct – such as burning the American flag – is protected speech because it conveys a political message. Providing humanitarian aid to individuals the government continuously dehumanizes is political speech and should be protected. In Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale, the Eleventh Circuit relied on the Free Speech clause to declare a city ordinance prohibiting food sharing in a city park unconstitutional. The Court held “that on this record FLFNB’s outdoor food sharing is expressive conduct protected by the First Amendment.” Through the lens of this case, Professor Cade adds, “[t]his closely related precedent, along with the guideposts set forth by the U.S. Supreme Court, strongly supports the conclusion that NMD’s humanitarian work in this unique context constitutes the kind of expressive activity that should be covered by the First Amendment.”
 
It’s important to note that conduct alone is not what is expressive. It’s the messages or the perceived message of the behavior along with the symbolism and public nature that places it in the unique space of First Amendment scrutiny. Thus, given the symbolic and moral opposition to border policies that activists and organizations like NMD portray, there is a strong argument that it should be classified as protected speech. 
 
So, I ask again, should humanitarian aid for migrants be criminalized, or is it protected speech? It may be challenging to be hopeful in a country with a 100-mile border zone. However, the continued work of activists like the members of No More Deaths leads me to believe that we must continue to push for these protections.