Director of the Executive Office for Immigration Review (EOIR) David Neal Friday filed a motion to dismiss a complaint from the National Association of Immigration Judges (NAIJ) regarding a policy restricting their ability to speak at public events. Neal argues that the NAIJ lacks standing and failed to state a plausible claim, and he contends that the new policy encourages speech and only requires supervisory approval.

In addition, Neal cited US Supreme Court precedent that the government may impose speech restrictions on employees, especially high-ranking employees, more broadly than private employers. According to Neal, “given the unique and authoritative role that IJs hold within EOIR, NAIJ cannot plausibly allege that IJs’ interest in speaking about immigration and EOIR outweighs the agency’s admitted ‘legitimate interest in promoting the efficiency of the services it performs through its employees.'”

In 2021, the EOIR established a policy that restricted immigration judges (IJs) from engaging in speaking engagements and outlined approval requirements. In response to this policy, the NAIJ sued, asserting that the policy violated their First Amendment rights because it involved unconstitutional prior restraint, a restraint on speech before it happens. The complaint also asserted that the policy was void for vagueness under the First and Fifth Amendments and “invites arbitrary and discriminatory enforcement.”

Neal’s motion will be reveiwed by the US District Court for the Eastern District of Virginia, Alexandria Division.