Chicago Tribune repeats false claims about immigration law

Chicago Tribune repeats false claims about immigration law
Migrants headed toward U.S. border (Image: YouTube screen grab)

The Chicago Tribune not only made false claims about immigration law. It also repeated them, to make restrictions on constitutionally protected speech seem more palatable. This is part of a long pattern of left-leaning journalists doubling down on false legal claims, even after readers with legal expertise sought corrections.

As LU contributor and lawyer Jerome Woehrle noted:

[T]he Chicago Tribune was criticized by readers because it falsely claimed [on October 4] that the term illegal alien isn’t “used in statutes and in legal circles.” It approvingly quoted a professor wrongly claiming “The term illegal alien isn’t a term that comes up in our laws,” in discussing New York City’s threat to fine people up to $250,000 for using the word “illegal alien” in workplaces, rental housing, or public accommodations.

But “illegal alien” is a term that comes up again and again in federal and state laws and regulations. Two examples of laws using the words “illegal alien” are 8 USC 1365 and 6 USC 240.

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In response, the Tribune thumbed its nose at those readers. It reposted the article prominently on its web site [on October 9], so that a fresh crop of readers could read it and be deceived by it. “The quote claiming that ‘illegal alien isn’t a term that comes up in our laws’ is still there,” notes Ramesh Ponnuru of the National Review. … At the same time, it added the word “frequently” before the words “used in statutes and legal circles.”

The claim that “illegal alien” isn’t used “frequently” in statutes and legal circles is just wrong. Experts on immigration law have pointed out that it is used many times in the U.S. Code. The Cato Institute’s Alex Nowrasteh has written about immigration law for years. He testified before Congress, and favors allowing more immigrants and refugees into the country. As he notes, the term “illegal alien” is frequently used in the law, more often than competing terms like “unauthorized alien” and “undocumented alien.” He reviewed the federal “laws on citizenship, nationality, and immigration” —  and found that “illegal alien” is the most commonly used term for people in the country illegally:

The term “illegal alien” was mentioned most of all – 33 times. … The second most common term was “unauthorized alien,” which appeared 21 times or about a quarter of the time. Interestingly enough, “undocumented alien” was the third most common with 18 uses. My preferred term of “illegal immigrant” was used only six times.

Contrary to the Chicago Tribune’s claims, the term “illegal alien” is frequently used in legal circles. The Justice Department routinely uses the term in its court briefs. It is the term used by the Supreme Court in cases such as Arizona v. United States. The term is also used by judges in lower court rulings, such as Texas v. United States. Judicial use of the term “illegal alien” is well known. It was cited in the past by the Heritage Foundation’s Hans Von Spakovsky, and more recently by lawyer John Hinderaker when he took issue with the Chicago Tribune’s claims at Powerline.

As Woehrle points out, the Tribune made these false claims in its slanted coverage favoring New York City’s controversial “immigration guidance.” That guidance restricts the use of the term “illegal alien” in workplaces, housing, and schools, threatening those who use it with $250,000 fines. Lawyers have criticized such restrictions, saying they violate the First Amendment. One of their many objections is that “illegal alien” is simply legally accurate terminology that the government lacks a valid interest in targeting based on its viewpoint. As Woehrle observes, it “is easier to defend such restrictions” if you falsely assume that “‘illegal alien’ is not a legal term” than if you admit it is indeed a commonly-used term found in laws.

I have argued that New York City’s restriction on using the term “illegal  alien” violates free speech regardless of whether “illegal alien” is the best term to use. That’s because the First Amendment generally protects speech regardless of its “truth, popularity, or social utility.” But there is no question that many ordinary people reading the Tribune will be more sympathetic to banning an abnormal term than a normal one.

The Tribune article, which was written by Cindy Dampier, was very slanted. Legal experts have said that New York City’s restrictions on using the term “alien” are so overly broad as to be “unconstitutional.” One of them is a progressive lawyer who has “dedicated” his “career to fighting the deportation of immigrants.” But the Tribune does not cite or mention any of these lawyers, even though they criticized  the speech restrictions well before the Tribune published its article, and were quoted by publications that Tribune columnists read and publish in.

Instead, the Tribune quoted only supporters of New York City’s restrictions on speech about illegal aliens. That included a liberal law professor’s claim that they were a welcome “reaffirmation that New York City is a welcoming place.” The Tribune did admit that “social media commenters” objected to them. But to many readers, “social media commenters” may just seem like a euphemism for “right-wing trolls on Facebook and Twitter.” In short, this concession by the Tribune does nothing to dispel the misimpression created by its article about the legal propriety of using the term “illegal alien.”

This slanted article is found in the Tribune’s news section, which leans liberal. The Tribune’s editorial page  still features some conservatives, like John Kass. The Tribune was once a staunchly conservative newspaper.

The liberal media have repeatedly made false claims about the law that help fellow liberals. In 2017, the left-leaning media entity PolitiFact made a false claim to help a liberal senator attack Trump’s conservative education secretary, Betsy DeVos. It claimed that the courts use a “clear and convincing evidence” standard in criminal cases. In reality, a higher standard — “beyond a reasonable doubt” — applies in criminal cases, as most Americans know. The Supreme Court has made this clear many times. For example, in its decision in In re Winship (1970), the Supreme Court ruled that “the Due Process clause protects the accused against conviction except upon proof beyond a reasonable doubt.” But PolitiFact did not recognize this basic legal principle.

PolitiFact also made factually false claims about the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co. Those false claims were debunked by law professor Jonathan Adler and journalist Megan McArdle at Newsweek/The Daily Beast. PolitiFact’s errors benefited Lilly Ledbetter, a liberal activist who spoke at both the 2008 and 2012 Democratic National Convention, by painting her in a more sympathetic light than the actual facts of her case warranted. These distortions also painted the Supreme Court in a worse light than was warranted, allowing Democratic politicians such as President Obama to denounce the Supreme Court’s decision. But as Washington Post fact-checker Glenn Kessler later noted, Obama’s claims about the case were based on very questionable assumptions.

Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department. Hans writes for CNSNews.com and has appeared on C-SPAN’s “Washington Journal.”