'Water is Life!' (and Speech!): Death, Dissent and Democracy in the Borderlands

62 Pages Posted: 7 May 2020 Last revised: 20 May 2020

See all articles by Jason A. Cade

Jason A. Cade

University of Georgia School of Law

Date Written: May 4, 2020


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 and 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 the border-policy dissenters, 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, aim not only to save lives but to convey the message that all lives—including those of unauthorized migrants—are worth saving. After carefully untangling the complex constitutional sub-doctrines implicated by the argument, the Article explains the 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.

Keywords: forced migration, free speech, first amendment, border, immigration, harboring, crimmigration, refugees, democracy, asylum, protest movements, enforcement

JEL Classification: K14, K23, K33, K40, K41, K42, D73, J61, F22, L22

Suggested Citation

Cade, Jason A., 'Water is Life!' (and Speech!): Death, Dissent and Democracy in the Borderlands (May 4, 2020). Indiana Law Journal, Vol. 96 (Forthcoming), Available at SSRN: https://ssrn.com/abstract=3592882

Jason A. Cade (Contact Author)

University of Georgia School of Law ( email )

225 Herty Drive
Athens, GA 30602
United States
(706) 542-5188 (Phone)

HOME PAGE: http://www.law.uga.edu/profile/jason-cade

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