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ACLU Sues ICE and PEN America Files Legal Brief Calling for Release of Student Detained for Reading Poem

“It’s not unpatriotic to denounce an injustice committed on our behalf, perhaps it’s the most patriotic thing we can do.” E.A. Bucchianeri, Brushstrokes of a Gadfly

Two days after he read this poem at a TRUTH Act forum in Bakersfield, California, ICE arrested Jose Bello. The ACLU sued. ICE cannot intimidate us into silence. Visit facebook.com/FreeJoseBello for updates.

PEN America filed an amicus curiae brief urging a federal appeals court in California to immediately release a student arrested and detained by ICE for publicly reciting a poem. The brief, filed in the Ninth Circuit Court of Appeals, is in support of student Jose Omar Bello Reyes, arrested in May of this year.

“No one should go to jail for reading a poem. Yet, it appears that ICE agents targeted Bello as a result of his poetry reading. When government officials wield their power to silence their critics and suppress lawful, protected speech, they undermine the core protection established by the First Amendment,” said Nora Benavidez, PEN America’s director of U.S. free expression programs. “In our filing today, we are calling on the Ninth Circuit to affirm Jose Bello’s political and artistic speech by fortifying his right to be free from government retaliation. Protest poetry has a long and proud tradition in the United States that must be vigorously defended in our courts of law.” 

In its supporting brief (accessible here), PEN America urges the Ninth Circuit to grant his motion for release and affirm the constitutional guarantees afforded by the First Amendment. PEN America argues that “Mr. Bello enjoys a constitutional right to speak freely, to be free from retaliation for that speech, and to be free from efforts to restrain his ongoing speech on matters of public concern. Moreover, listeners and participants in the ongoing immigration debate have a concomitant right to receive his expressed viewpoints, without government officials deliberately interfering with the flow of that information with a censorial and retaliatory motive and effect. Despite these protections, ICE acted in retaliation for protected speech that was critical of them, striking at the very heart of the First Amendment.”

ICE officers arrested Bakersfield College student Bello May 19 at his home in Bakersfield, California. Bello’s arrest occurred 36 hours after he appeared at a public forum held by the Kern County Board of Supervisors and recited his poem “Dear America,” which included criticisms of current federal immigration policy. After his arrest, the ACLU of Southern California filed a habeas petition on Bello’s behalf, arguing that his detention was retaliatory and violated his First Amendment rights. On July 16, a federal district court judge denied the petition but found the timing of the arrest to be “highly suggestive of retaliatory intent.” The case is now on appeal before the Ninth Circuit.

PEN America has previously expressed its concern about the enforcement action taken against Mr. Bello, as well as the broader issues around the erosion of free speech through ICE’s targeted enforcement actions. Most recently, it joined amicus briefs on behalf of detained Tennessee journalist Manuel Duran Ortega, who was arrested in April 2018 while reporting on a protest, and immigrants’ rights activist Ravi Ragbir, who was detained and targeted for deportation following his criticism of ICE at public rallies and on media outlets.

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This content is courtesy of PEN America, the ACLU, and Bakersfield.com.

PEN America stands at the intersection of literature and human rights to protect open expression in the United States and worldwide. It champions the freedom to write, recognizing the power of the word to transform the world. Its mission is to unite writers and their allies to celebrate creative expression and defend the liberties that make it possible.

The American Civil Liberties Union (ACLU) is a nonprofit organization whose stated mission is “to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States.”Officially nonpartisan, the organization has been supported and criticized by liberal and conservative organizations alike.[9] The ACLU works through litigation and lobbying and it has over 1,200,000 members and an annual budget of over $100 million. Local affiliates of the ACLU are active in all 50 states, the District of Columbia, and Puerto Rico. The ACLU provides legal assistance in cases when it considers civil liberties to be at risk. Legal support from the ACLU can take the form of direct legal representation or preparation of amicus curiae briefs expressing legal arguments when another law firm is already providing representation.

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Search Warrant for Visitors to a Protest Website, First and Fourth Amendment rights challenged

Scene at the Signing of the United States Constitution by (1940) American artist and illustrator, Howard Chandler Christy (1872-1952)

“The DreamHost warrant in particular is likely to chill the exercise of First Amendment rights—including the right to receive information, to speak anonymously, and to associate with like-minded individuals free from the threat of government unmasking.” American Civil Liberties Union

Constitution of the United States of America

“Reports that the Justice Department served a warrant on an internet company, demanding it turn over records that could be used to identify more than a million visitors to a Trump protest website, raise serious concerns about the current administration targeting critics and attempting to chill dissent,” reports PEN America along with various other legal and rights-watch organizations and news outlets. This is again an issue that goes far beyond which side of the great divide you stand. It’s about the protections of freedom of speech and other civil rights and points to the potential for human rights abuses.

The company, Dreamhost, maintains disruptJ20, which was used to organize protests for January’s presidential inauguration. The Justice Department, which handles local prosecutions in the District of Columbia, issued the warrant to Dreamhost in mid-August, according to Dreamhost, which required the company to produce “all files” in connection with disruptJ20. This would include logs for each visitor to the site.

The logs include detailed information: the time and date of the visit, the internet address of the user and the pages each visitor viewed. Combined with other easily obtainable information, police could then trace the specific computers of the more than 1.3 million visitors for which Dreamhost has logs. As of August, local D.C. police have arrested more than 200 protesters en masse, including a number of journalists, and have charged them with felony rioting. This could result in decades-long jail sentences.

“I am one of the more than a million people who visited this website, and who will be swept up by this obscenely broad search warrant—all because it’s my job to follow these things,” said Gabe Rottman, PEN America’s Washington director. “How many other journalists, academics, lawyers, peaceful protesters, and even Trump supporters visited this website? They will all be under a microscope if the court lets this dragnet stand.”

Dreamhost is currently challenging the warrant under both free speech and privacy grounds. Among other things, the company is arguing that the warrant would sweep in completely innocent, and constitutionally protected, communications without any indication that the communications are in any way relevant to wrongdoing. Those affected would include journalists, writers, academics and students just handling their assigned responsibilities.

Brett Max Kaufman, a staff attorney with the ACLU Center for Democracy, writes that this action is a “clear threat to the Constitution.”

“One of the core principles enshrined in the Fourth Amendment is a prohibition on general searches — meaning, the government cannot simply go fishing for a wide range of information in the hope that some kind of useful evidence will turn up. But that’s exactly what the government appears to be doing with a newly revealed search warrant seeking reams of digital records about an Inauguration Day protest website that could implicate more than 1 million users.” More HERE.

According to the Electronic Frontier Foundation, which is working with Dreamhost to fight this:

“[This is] just one example of the staggering overbreadth of the search warrant, it would require DreamHost to turn over the IP logs of all visitors to the site. Millions of visitors—activists, reporters, or you (if you clicked on the link)—would have records of their visits turned over to the government. The warrant also sought production of all emails associated with the account and unpublished content, like draft blog posts and photos.” More HERE.

RELATED:

Both illustrations are in the public domain. This feature is primarily courtesy of the following organizations:

PEN America stands at the intersection of literature and human rights to protect open expression in the United States and worldwide. We champion the freedom to write, recognizing the power of the word to transform the world. Our mission is to unite writers and their allies to celebrate creative expression and defend the liberties that make it possible.

DREAMHOST is a Los Angeles-based web hosting provider and domain name registrar. It is the web hosting and cloud computing business owned by New Dream Network, LLC, founded in 1996 by Dallas Bethune, Josh Jones, Michael Rodriguez and Sage Weil, undergraduate students at Harvey Mudd College in Claremont, California, and registered in 1997 by Michael Rodriguez. DreamHost began hosting customers’ sites in 1997.

The ELECTRONIC FRONTIER FOUNDATION (EFF) is an international non-profit digital rights group based in San Francisco, California. EFF provides funds for legal defense in court, presents amicus curiae briefs, defends individuals and new technologies from what it considers abusive legal threats, works to expose government malfeasance, provides guidance to the government and courts, organizes political action and mass mailings, supports some new technologies which it believes preserve personal freedoms and online civil liberties, maintains a database and web sites of related news and information, monitors and challenges potential legislation that it believes would infringe on personal liberties and fair use, and solicits a list of what it considers abusive patents with intentions to defeat those that it considers without merit.

ACLU CENTER FOR DEMOCRACY, under the direction of Cecillia Wang, works to strengthen American democratic institutions and values, promote human rights, ensure government accountability, and protect the rights of immigrants in our national community. The Center for Democracy includes the National Security Project, the Human Rights Program, the Speech, Privacy and Technology Project, the Voting Rights Project, and the Immigrants’ Rights Project.