It's up to the federal government that barred protesters from an enforcement zone around an Arizona immigration checkpoint to prove it constitutes a non-public forum, the U.S. Circuit Court of Appeals for the 9th Circuit said in a ruling Tuesday that could have broader implications for other demonstrations.
The appeals panel said it didn't have the information necessary to determine if the zones around the road stops are non-public. It revived the case by kicking it back to the U.S. District Court in Arizona.
The District Court had earlier thrown out the case by two protesters who sued U.S. agencies for keeping them away from an enforcement area around an immigration checkpoint near their rural homes. Residents from the community of Arivaca had argued the checkpoint promotes racial profiling and the militarization of the area about 20 miles (32 kilometers) north of the Mexico border.
Mitra Ebadolahi, border litigation staff attorney for the American Civil Liberties Union in California's San Diego and Imperial counties, said the ruling was technical but nevertheless important because it could have wider significance for other protests.
Ebadolahi's office worked with the ACLU in Arizona and Covington & Burling LLP of San Francisco representing the demonstrators against the U.S. Department of Homeland Security, Customs and Border Protection and the Border Patrol, as well as officials with those agencies.
Plaintiffs Peter Ragan and Leesa Jacobson argued they had the right to protest at the road stops.
But the lower federal court dismissed the case after agreeing with the U.S. government that the enforcement zones around the Arizona checkpoints were non-public areas and officials could keep protesters out.
The higher court has now ruled "the government has the burden to prove that it is justified to move protesters from the area," Ebadolahi said.
"It's really a win for the principle of the First Amendment and the broader idea that the government cannot unilaterally restrict free speech in a public area," she added. "If it had gone differently, it would have been a blow."
The Border Patrol office in Tucson referred questions to the public affairs office of the Customs and Border Protection agency in Washington, which did not immediately respond to a request for comment on the high court's ruling.
Federal authorities say the checkpoints located on highways and small roads north of the U.S.-Mexico line are essential to help them catch people who violate immigration laws, as well as drug smugglers and human traffickers. But many area residents complain they must answer questions about their citizenship each time they drive by.
Other local residents back the checkpoints, saying they're needed for border enforcement.
The Border Patrol has dozens of checkpoints around the American Southwest and in northern states near the U.S.-Canada boundary.
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