Texas Sanctuary Law as a ‘Free Speech’ Case

Pursuing their sue-first-and-ask-questions-later strategy, local officials opposed to Texas’s anti-sanctuary law allege the state is threatening their First Amendment right to free speech.

At issue is the section of Senate Bill 4 that allows the Texas attorney general to fine or remove local officials who “adopt, enforce or endorse” policies that limit police cooperation with federal immigration agents and “materially limit … the enforcement of immigration laws.”

Several declared sanctuary cities, as well as the non-sanctuary city of San Antonio, sued the state over the law. A federal district judge upheld much of SB4, but issued an injunction blocking the “speech” provision. The matter was argued before a three-judge panel of the 5^th Circuit Court of Appeals in New Orleans this week.

Judge Edith Jones wondered if the “endorsement” provision would prohibit officials from voicing their opinion about immigration practices.

Judge Edward Prado asked, “Wouldn’t [officials]be hesitant to speak up … for fear they might be run out of office for what they said on the evening news?”

Texas Solicitor General Scott Keller said sanctions would apply only to officials who use their “government power” to undermine enforcement of SB4.

“An official giving a newspaper interview or a press conference where they disagree with the policy judgment of SB4 would not be confirming a local policy to ignore the mandates of SB4,” he said.

Amid the back and forth, Judge Jones asked why SB4’s challengers couldn’t simply ask the Texas attorney general for an opinion clarifying the law, or wait to see how it will be implemented before suing the state in court.

Good question.

Taxpaying citizens surely wonder about their rights as local and state officials rack up thousands of hours in legal bills contesting a law that affirms the rule of immigration law.

And what about a community’s right to expect that local constabularies – led by elected sheriffs and politically appointed chiefs of police – will honor their sworn oath to preserve public safety?

As for “free speech,” FAIR notes, “Communication and cooperation by state and local law enforcement with federal officials is essential to combating the negative effects of illegal immigration.”

The appellate judges – Jones and Jerry Smith, appointees of President Ronald Reagan, and Prado, a George W. Bush appointee – gave no indication when they might rule. Whatever they decide, SB4 will inevitably end up at the U.S. Supreme Court.