New York City is seeking to use an overly broad ordinance against discriminatory harassment to restrict speech about illegal aliens, such as use of the word “illegal alien” to describe workers or tenants. That violates the First Amendment. Its Commission on Human Rights is targeting such speech in recent “immigration guidance.” The Commission states, “Even an employer’s single comment made in circumstances where that comment would signal discriminatory views about one’s immigration status or national origin may be enough to constitute harassment. The use of the terms “illegal alien” and “illegals,” with the intent to demean, humiliate, or offend a person or persons in the workplace, amounts to unlawful discrimination under the NYCHRL.”
That forbids speech based on its viewpoint, even though the First Amendment, above all else, was intended to prevent viewpoint-based restrictions on speech. And it’s not just employers whose speech about immigration the Commission seeks to restrict. The Commission states, “It is illegal for a person’s employer, coworkers, or housing provider such as landlords to use derogatory or offensive terms to intimidate, humiliate, or degrade people, including by using the term ‘illegal alien,’ where its use is intended to demean, humiliate, or offend another person.” It also cites tenants as an example of people whose speech is restricted.
The city also is trying to forbid most if not all reporting of illegal aliens to the federal government. The Commission forbids such reports if the person making the report is “motivated” by the illegal alien’s “immigration status.” But what other motive could a reporting party legitimately have? The whole reason to report an illegal alien to the federal government is precisely because of their immigration status.
Yet, the Commission bans not just the threat of reporting, but also most if not all actual reports as well. It declares: “Employer threats to call federal immigration authorities can constitute unlawful harassment under the NYCHRL when motivated, in whole or in part, by animus related to the employee’s actual or perceived immigration status….While reporting a violation of the law to the police is otherwise permitted, it is a violation of the NYCHRL when such action is taken or threats to take such action are made based solely on a discriminatory or retaliatory motive.”…………..
The Commission threatens to impose $250,000 fines in the guidance, as authorized by the City’s “human rights” ordinance. The Commission also fails to describe any real-world example or situation in which it would be legal under the ordinance to report an illegal alien to the federal government. The specter of such huge fines and no safe harbor for reporting will have a huge chilling effect on citizens, discouraging them from exercising their First Amendment right to petition federal officials to remove illegal aliens.