Court Says CBP Likely Violating First Amendment By Forbidding Photography Of Publicly-Viewable Border Crossings
Furnished content.
Another (partial) win for the First Amendment, the ACLU, and American citizens. The Ninth Circuit Court of Appeals has overturned a decision forbidding the photography of CBP officers at border crossings. (h/t Mitra Ebadolahi)
The CBP seems to have a problem respecting the First Amendment rights (along with several other rights) of American citizens when engaged in its border patrolling and protecting. This same appeals court recently allowed the heavily-harassed citizens of an Arizona border town to move forward with their First Amendment lawsuit against the agency, ruling that the CBP acted arbitrarily when dealing with protesters and activists documenting checkpoint activity. The record clearly showed the CBP removed people it didn't like from its imaginary zone of exclusion while allowing other random citizens more aligned with the CBP's open harassment of American citizens to venture inside the ad hoc DMZ to harass citizens documenting harassment.
This lawsuit centers on allegations CBP officers confiscated cameras and phones of people documenting border checkpoint activity and destroyed photos and videos. Here are the narratives of the two plaintiffs, taken from the Appeals Court decision [PDF]:
On the afternoon of April 19, [Ray] Askins stood at the intersection of First Street and Paulin Avenue on the U.S. side of the border, near the shoulder of the streets and immediately in front of the park. He was approximately 50–100 feet from the exit of the secondary inspection area, and he had not crossed the border or otherwise passed through border security to reach his location. Standing in the street, Askins took three or four photographs of the exit of the secondary inspection area. Multiple CBP officers approached Askins on the street to demand he delete the photographs he had taken. When Askins refused, the officers threatened to smash his camera, then searched and handcuffed him, confiscated his property, and detained him inside a secondary inspection area building. Askins was released after approximately twenty-five to thirty-five minutes and his property was returned, at which time he discovered that CBP had deleted all but one of his photographs of the exit of the secondary inspection area.
[...]
[Christian] Ramirez observed male CBP officers at a security checkpoint below inspecting and patting down only female travelers. Concerned that the officers might be acting inappropriately, Ramirez observed the checkpoint from the bridge for ten to fifteen minutes and took approximately ten photographs with his cellphone camera. Ramirez and his wife were approached by men who appeared to be private security officers. The men ordered them to stop taking photographs. The officers also demanded their identification documents, which Ramirez refused to provide as they had already passed through border inspection. The officers radioed for backup as Ramirez and his wife walked away, and at the bottom of the bridge, Ramirez was met by five to seven CBP officers. The CBP officers questioned Ramirez, and, without Ramirez’s consent, a CBP officer confiscated Ramirez’s cellphone and deleted all of the photographs Ramirez had taken from the bridge. A U.S. Immigration and Customs Enforcement officer confiscated the Ramirezes’ passports and walked away, leaving Ramirez surrounded by the CBP officers. After ten to fifteen minutes, their documents were returned to them and the Ramirezes were allowed to leave.
Both plaintiffs allege the CBP's practices violate the First Amendment. They are not seeking to photograph the inside of buildings or other sensitive areas not visible to the public eye, but rather border checkpoints where inspections and questioning are performed in public, completely visible to passersby. The CBP somehow believes what happens in public can't be documented by the public.
The district court decided to take the CBP up on its irrational argument, tossing aside logic to embrace the agency's claims about the super-secret nature of national security activities performed out in the open, visible to the unadorned eye. The appeals court says this isn't the way things are done. The lower court should not have lifted the government's burden of proof onto its own shoulders and carried it home for it.
The district court found that the CBP policies survived strict scrutiny because of “the extremely compelling interest of border security” and the government’s general interest in “protecting United States territorial sovereignty.” To this, the government adds that the CBP policies serve compelling government interests in protecting CBP’s law enforcement techniques and the integrity of on-going investigations; protecting the privacy of travelers, suspects, and sensitive digital information; ensuring the safe and efficient operation of the ports of entry; and protecting against terrorist attacks. In conclusory fashion, the district court held that the policies were the least restrictive means of serving these interests.
These conclusions are too thin to justify judgment for the government on a motion to dismiss. [...] It is the government’s burden to prove that these specific restrictions are the least restrictive means available to further its compelling interest. They cannot do so through general assertions of national security, particularly where plaintiffs have alleged that CBP is restricting First Amendment activities in traditional public fora such as streets and sidewalks.
The decision does not hand the plaintiffs a complete victory. It does shift the burden of proof back on the government and instructs the lower court to allow the case to proceed to see if the government can actually offer up anything supporting its random time/place restrictions that border on total violation of established First Amendment principles. The appeals court seems inclined to believe the CBP cannot simply forbid photography of publicly-viewable enforcement activities by members of the public. We'll have to see what the lower court does on remand, considering it already granted the government a free pass once, because National Security > Established Constitutional Rights, apparently.
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