Abstract
Immigration detention is one of the most active sites of struggle for justice in the United States, and the First Amendment may be an underutilized tool in the movement to abolish immigration detention. When people detained by ICE organize against the unjust conditions they endure, they routinely experience repression and retaliation for their speech. While some of ICE’s retaliation against detained organizers is patently unlawful—such as when detention officials beat up individuals to silence them—much of the retaliation against detained organizers is sanctioned under legal standards that ICE is bound to uphold. This Comment takes aim at these legal standards, charting potential litigation to remedy not only individual acts of retaliation but also the underlying legal bases for ICE’s pattern of unconstitutional retaliatory conduct. The Comment details the history of ICE’s frequent retaliation against detained people who organize for change, identifies an urgent need to protect their speech, analyzes to what degree courts may afford detained immigrants First Amendment rights, and coins a “carceral plus” standard that courts should apply to immigration detention that rises above the constitutional protections given to people incarcerated in the criminal-legal system given the penological interests analyzed in the criminal system are not applicable to the immigration detention system and have been incorrectly applied to immigration detention. Finally, a framework for litigation is presented with multiple legal vehicles and arguments for relief along with solutions for common hurdles to such litigation.
