Does the First Amendment Hold at the Border?

But the photojournalists found it improbable that they were suspected of breaking any laws. Were they being targeted because they were members of the press? Was the government trying to obtain access to their source lists and the intelligence they’d gathered in the course of their reporting? Suspicions to that effect were bolstered when The Intercept reported on an apparent pattern: U.S. and Mexican authorities seemed to be coordinating harassment of the journalists. Then a leak from an anonymous source at the Department of Homeland Security added clarity. “The [U.S.] government had listed their names in a secret database of targets, where agents collected information on them,” an NBC affiliate in San Diego reported. “Some had alerts placed on their passports, keeping at least two photojournalists and an attorney from entering Mexico to work.”

Conor Friedersdorf: Look who’s trying to seize private property

If accurate, that is a serious abuse of power: The government allegedly jeopardized the livelihood of these journalists, as well as their ability to relay useful information to Americans. A government spokesperson told CNN at the time that Customs and Border Protection “does not target journalists for inspection based on their occupation or their reporting.” But in one case, a Mexican border official who turned one of the photojournalists away told her he was doing so at the behest of the American government.

Now the photojournalists are suing three federal border agencies. Their complaint, filed this week in federal court, alleges several related violations of their civil rights. They were subject to questioning that “substantially burdened Plaintiffs’ First Amendment rights to freedom of speech, association, and the press,” the lawsuit asserts, requiring them “to disclose confidential information about their observations, sources of information, and/or work product, including the identities of individuals with whom they may have interacted in the course of their work as journalists.”

The American Civil Liberties Union, which filed the lawsuit on their behalf, stated Wednesday that “border officers at ports of entry may ask questions relating to immigration or customs, but they may not use border screening as a pretext to interrogate journalists about their work.”

Journalists often possess information that would be valuable to competing ideological factions in the federal government and to various members of the federal bureaucracy. If they are forced to compromise sources or to turn over information every time they enter the United States from abroad, the task of news-gathering will become significantly more onerous, some activity protected by the First Amendment will be chilled, the public will get less information, and the free press that the Framers tried to protect will be weakened.

News-gathering is unusual among occupations in that it’s specifically protected by the Constitution. If even members of the press, with their ability to raise distinct First Amendment claims, are subject to harassment at the border, the abuse of power is unlikely to end there.

Conor Friedersdorf is a California-based staff writer at The Atlantic, where he focuses on politics and national affairs. He is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.