Originally submitted on SSRN.

Abstract

Decades of stringent immigration enforcement along the Southwest border have pushed migrants into perilous desert corridors. Thousands have died in border regions, out of the general public view, yet migrants continue to attempt the dangerous crossings. In response to what they see as a growing humanitarian crisis, activists from organizations such as No More Deaths seek to expand migrant access to water, to honor the human remains of those who did not survive the journey, and to influence public opinion about border enforcement policies. Government officials, however, have employed a range of tactics to repress this border-policy “dissent,” including blacklists, water destruction, and aggressive arrests and prosecutions.

This Article argues that the context around No More Deaths’ work necessitates First Amendment scrutiny of government attempts to suppress or punish it. No More Deaths’ expressive conduct, carried out in the lethal areas where migrants have been funneled, aims not only to save lives but also to convey the message that all lives—including those of unauthorized migrants—are worth saving. After untangling the complex constitutional sub-doctrines, the Article explains the argument’s broader implications for democratic knowledge and debate about the ethics of border policies. As increased border fortification and militarization lead migrants to attempt even more dangerous land and water crossings, Americans will increasingly be asked to consider whether humanitarian aid should be a crime. This debate-generating function of No More Deaths’ non-violent, symbolic dissent regarding an area of inchoate but intense public concern aligns it with classical values that lie at the core of the First Amendment.

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