Victory for Free Speech Rights

In an important victory for free speech, the ACLU of San Diego & Imperial Counties and the law firm of Fish & Richardson, P.C. are pleased to announce that they have persuaded the federal government to reinstate an interpreter who had been disqualified from working in the immigration courts because of his constitutionally protected non-work related activities.

David Schmidt was represented by the ACLU’s legal staff and attorneys from the San Diego office of Fish & Richardson, P.C., an international law firm, who provided pro bono services.

Mr. Schmidt served for more than three years as a courtroom interpreter, working for Lionbridge Global Solutions, a company under contract to the Language Services Unit of Executive Office for Immigration Review (EOIR), and receiving only exemplary reviews. In May 2007, however, EOIR disqualified him from serving as an interpreter in immigration court proceedings because of his advocacy on behalf of San Diego Si Se Puede Immigrants’ Rights Coalition. Mr. Schmidt was not disqualified because his translation were inaccurate or biased, but instead, according to a memorandum from EOIR to Lionbridge, Mr. Schmidt had a “conflict of interest” because he was “an advocate for immigration reform (pro alien).” EOIR learned of Mr. Schmidt’s activities on behalf of immigrants’ rights when a staff member at the San Diego Immigration Court recognized his name in a newspaper article and sent it to EOIR.

“The First Amendment protects the right of government employees and contractors to speak out on political issues, and Mr. Schmidt did not lose that right because he worked as a court interpreter,” said David Blair-Loy, legal director for the San Diego ACLU. “Speaking out on issues of public concern is what makes this country a functioning democracy. He should never have been disqualified in the first place, but I am glad EOIR has now corrected the problem.”

Nothing in Mr. Schmidt’s employment application asked or required him to disclose membership in political groups or detail any advocacy activities in which he participated. Nothing was ever mentioned in this regard during the interviewing or hiring processes. He was never instructed not to join advocacy groups, participate in political advocacy, or express positions on matters of public concern. The Code of Professional Responsibility for Interpreters similarly failed to restrict interpreters from participating in political or advocacy groups or activities.

The only instruction Immigration Court interpreters receive on “opinions provided to public media,” contained in the Office of the Chief Immigration Judge Interpreter’s Handbook, is that an interpreter “must not give opinions or make statements of any kind to, through, or in connection with, a newspaper, radio, or other public medium regarding any matter before the EOIR” (emphasis added). The handbook properly does not restrict interpreters from joining or participating in political advocacy groups or providing opinions about immigration policy generally.

The quality of Mr. Schmidt’s performance as an interpreter or the accuracy of his translations was never questioned. Upon being informed of his disqualification, he asked his employer several times whether it was in any way performance-related. He was repeatedly assured that the disqualification had nothing to do with his past performance and was solely based on his involvement with immigration rights advocacy. In a June 2007 e-mail, he was informed that he was disqualified because he was “a member of an immigration rights advocacy group and the L[anguage] S[ervices] U[nit] feels that this conflict of interest will influence your interpretation during Immigration Court hearings.”

In a February 14, 2008 phone conversation with the EOIR’s general counsel, Mr. Blair-Loy was informed that the disqualification had been lifted. “On the one hand, this was a victory for me personally,” said the client, David Schmidt. “On the other hand, it’s important to remember that until a case such as mine is actually brought to court, I fear the EOIR may continue to exercise these heavy-handed tactics on other interpreters who find themselves in my position.”

“This is an important result for protecting the First Amendment rights of government contractors,” said Craig Countryman, a lawyer with co-counsel Fish & Richardson, P.C.. “Those who work with the government should not be forced to choose between exercising their First Amendment rights and keeping their job, especially when their political activity has no impact on their job performance.”

The other attorneys on the case from Fish & Richardson, P.C. were Todd Miller, Kimberly Kennedy, Alex Eaton-Salners, and Jack Ko.

“The contributions of outside law firms like Fish & Richardson allow the ACLU to assist a far greater number of people and to be even more vigilant in defending the Constitution,” said Blair-Loy. “The entire team did a fantastic job of preparing this case to be filed if the government did not promptly reinstate Mr. Schmidt.” Blair-Loy added that while the attorneys hope that the EOIR will comply with the Constitution, the ACLU will continue to monitor their actions to ensure that no further retaliation occurs. “Any interpreters who experience similar reprisals in the future should contact us immediately,” he said.

The Executive Office for Immigration Review is the agency within the United States Department of Justice that is responsible for adjudicating immigration cases. Under delegated authority from the Attorney General of the United States, EOIR interprets and administers federal immigration laws by conducting Immigration Court proceedings, appellate reviews and administrative hearings. A demand letter was sent to the General Counsel of the EOIR on January 10, 2008, who announced the lifting of the disqualification on February 14, 2008.