Government retaliation against an individual for the exercise of First Amendment freedoms is a terrible thing, especially in a free society. The case of Memphis-based investigative journalist Manuel Duran Ortega presents the possibility of egregious retaliation.
In April 2018, Memphis police arrested Duran Ortega and others at a protest rally timed to coincide with the city’s event commemorating the 50th anniversary of civil rights leader Dr. Martin Luther King, Jr.’s assassination. Local law enforcement charged Duran Ortega with disorderly conduct – charges sometimes imposed on protestors merely for exercising core First Amendment freedoms.
While these criminal charges were dropped, local officials turned Duran Ortega over to the Department of Homeland Security. Duran Ortega left El Salvador in 2006 and escaped into the United States. He had to leave El Salvador because a rival television station convinced law enforcement in El Salvador to arrest him on trumped-up charges.
He came to Memphis where he resumed his journalism career. He eventually founded Memphis Noticas and published stories showing a close perhaps cozy relationship between the Memphis Police Department and the United States Immigrations and Customs Enforcement (ICE). These articles were critical of law enforcement and ICE.
At the April 2018 protest, officials arrest Duran Ortega and then ICE detains him and ships him to an immigration facility in Louisiana where he faced deportation. This looks quite suspicious. Could it just be a coincidence that all these repercussions occur to a journalist who is quite critical of the government? The Southern Poverty Law Center, which represents Duran Ortega, thinks it blinks reality to turn a blind eye to the danger of retaliation for the exercise of First Amendment freedoms.
In its petition, the group writes: “The actions pursued by government officials in this case threaten core First Amendment freedoms that are essential to democracy: the right to criticize and expose the actions of government officials, and the right of members of the press to write and publish about them.”
The Board of Immigration Appeals ruled against Duran Ortega in his attempt to fight removal proceedings, meaning that he could be deported. However, his attorneys appealed to the 11th U.S. Circuit Court of Appeals. They argued that the government should not deport Duran Ortega because if he is removed to his home country in El Salvador, he will face more recrimination.
Fortunately, the 11th U.S. Circuit Court of Appeals recently issued a ruling, staying removal proceedings against Duran Ortega pending his case. The ruling examined whether the Judge Boyce Martin wrote in a concurring opinion: “Given his intent to continue working as an investigative, anti-corruption journalist, there is a significant likelihood Mr. Duran-Ortega will be harmed if the government removes him to El Salvador.”
What is most troubling about this case is the specter that government officials in the United States may have engaged in abject retaliation against a person because of his First Amendment activities. That is unacceptable anywhere – but particularly in a country that supposedly respects and protects freedom of the press.
David L. Hudson, Jr., a Visiting Associate Professor of Legal Practice at Belmont University College of Law, is a First Amendment attorney and author who has written, co-written, or co-edited more than 40 books, including First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Documents Decoded: Freedom of Speech (ABC-CLIO, 2017).