Illegal In NYC

Many words and phrases that are deemed offensive, if not actionably discriminatory today, were at one time in common use, and were the preferred, kind, word. There was a time when the polite word for black people was Negros. Even “colored people” was once a favored phrase. The N-word, notably, was never anything but a slur, what has been called the nuclear bomb of words.

Preferences change, which is fine, but during the time when they wind their way into our speech, our law, our culture, they are adopted as the proper terminology. In reviewing a brief recently, I caught the phrase “sexual preference,” which had been the common descriptor of the inclinations of gay people. That phrase is unacceptable now, as the suggestion that it is a choice, rather than an innate state, is contrary to the notion that people are born that way. So I changed it to sexual orientation, which is acceptable language now.

But what about “illegal alien”? Federal law uses the phrase, as it wasn’t considered derogatory. It was never a phrase that suited me, as “illegal” means criminal, and being physically in the United States without authorization was not, in itself, a crime. It was unlawful. It’s not illegal. Now the phrase is “undocumented immigrants,” which is more benign than illegals, but also assumes every undocumented person to be an immigrant. Most are, but not all. Nonetheless, it’s now the polite description. There’s nothing wrong with that.

Except if you use the wrong word, the wrong phrase, it could cost you $250,000 in New York City.

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. The ordinance itself is overly broad in how it defines speech as discriminatory harassment, and its Commission on Human Rights is using the ordinance to target speech based on its viewpoint.

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.”

By no means does this suggest that you shouldn’t use the preferred words and phrases to describe people as a matter of courtesy and kindness. But the Commission has enacted a speech code of forbidden words, and the language of Title 8 of the United States Code is, well, illegal.

There is, of course, a mens rea element to the code, that it’s only illegal if “intended to demean, humiliate, or offend another person.” But then, there’s a bit of a trick built into this element, since no one would use a word that’s specifically illegal for any reason other than to do so. There is no un-demeaning, un-humiliating, inoffensive reason to call someone an illegal immigrant today, so the proof of intent is inherent in the proof of its use.

There is no requirement that it be part of a pattern of conduct, or even speech. It need not be serious or pervasive. One utterance is enough. The potential for very expensive mischief here is palpable.

Didn’t get that sweet raise you could really use? Need some leverage negotiating the rent? Just got fired for slacking off? Since the offense isn’t conduct, is nothing more than an eyewitness asserting that a word or phrase was uttered, a claim that it was said is all it takes to cause one’s employer or landlord some serious expense, aggravation and, quite possibly, a very hefty fine. Really want to nail it down, have a buddy claim he was present, heard it as well, and then it’s two against one. Who will the NYC Human Rights Commission believe?

While it’s true that there are many acts that occur out of sight, that can be gamed by those inclined to lie, this is distinguishable because the protections of the First Amendment preclude the criminalizing of speech that does not fall within a prohibited classification. Even if one believes with all his heart that a word such as the N-word is so offensive, so outrageous, that it should be denied free speech protections, does “illegal alien” fall into the same category since it was the legally and socially acceptable phrase until it wasn’t?

When the phrase “sexual preference” appeared in the brief, it was the product of normality, a phrase that was used for many years as the “good phrase.” You get used to saying it, using it, and it sometimes comes out reflexively, not because of any intent to offend. And indeed, the only reason people got used to using it, rather than some more derogatory word or phrase, was because they were trying to be inoffensive and adopted the terminology that “nice people” used.

There’s quite a bit more in NYC’s effort to protect undocumented immigrants from discrimination, including the criminalization of asking for additional documentation beyond that required by federal law to prove one has authorization to work in the United States. But that means when someone proffers a fake social security card, you can’t demand their drivers license or passport to ascertain whether the worker really is Joe Smith rather than using Joe Smith’s documents.

There are a great many ways people try to beat the law, and it becomes an employer’s problem if they get away with it. But now NYC law precludes an employer from complying with federal law, but in a sufficiently tangential way as to make a credible argument that it doesn’t. It’s just not going to work out that way.

It’s understandable, especially in New York, that kind language is being enforced with a stick. There is a strong desire to protect certain classes of people from attack, even if the scheme creates unconstitutional and untenable speech restrictions and opens up a Pandora’s Box of likely problems that may well cause employers and landlords to be circumspect about hiring or renting to the people the Human Rights Commission seeks to protect. But the upshot is that this effort to correct what they perceive to be social ills by fiat and a fine is no more than an unconstitutional speech code and a disaster waiting to happen.

27 thoughts on “Illegal In NYC

  1. Steve Brecher

    “‘illegal’ means criminal, and being physically in the United States without authorization was not, in itself, a crime. It was unlawful. It’s not illegal.” When I encountered that, I hit the books to repair an apparent gap in my education.

    According to American Heritage Dictionary (4th and 5th Eds.) and Black’s Law Dictionary (11th Ed., 2019), “unlawful” means “not authorized by law; illegal.” For “illegal,” Black’s has “Forbidden by law; unlawful.” Black’s on “criminal,” leads to “crime,” meaning “An act that the law makes punishable.” By “unlawful” did you mean an act that the law prohibits, or at least does not allow, but without specifying any punishment?

    1. SHG Post author

      There’s a reason lawyers try to talk law that doesn’t make people stupider. Unfortunately, dictionaries often serve to do exactly that, which is why on a law blog it behooves us not to go out of our way to indulge in word conflation. There’s a reason why there are two words, seemingly closely related, but different. If they’re the same, why bother?

      But we’re lawyers here, so we try our very best not to ever leave a comment like yours that at the very best seeks to make people stupider, and instead use the lawyerly approach to words. I’m sorry that your education failed you, but you should resist the impulse to reduce my words to the depth of your personal ignorance.

      Unlawful means not authorized by law. Illegal means prohibited by law, and subject to punishment. No matter what my old pal Bryan says, they are not the same.

      1. Elpey P.

        Would I be helping or hurting things by noting that the Federal law in question uses the phrase “unauthorized aliens” rather than “illegal aliens”?

        This is not to defend the NYC ordinance one iota, but because it’s as though that term has been sitting on the sidelines all this time saying, “What about me?”

          1. Elpey P.

            Ah, found it. In my defense, by adding “in question” I meant to imply an acknowledgement that it may be elsewhere other than the specific one at the provided link. To my detriment, “may be elsewhere” is such an understatement that I’ve botched what could have been a halfway decent point.

  2. Steve Brecher

    I can’t conceive of why you would bother to compose such a malevolent preface to your answer unless you misread my question as being critical or sarcastic. It was not. It was motivated by my respect for your experience, which led to my inference that you knew something about usage that had heretofore escaped me.

    Perhaps “apparent” was the trigger. I”ll refrain from an essay on *that* word.

    1. SHG Post author

      You’re a smart person, and I very much appreciate your noting my typos. That said, there was a reason for my “malevolent” preface, which was so you would not merely get the message that when you feel compelled to question something, you don’t do so in a way that initially presents the question in a way most likely to do damage, but in way that avoids doing damage, while still getting the answer you seek.

      Ironically, you will remember my reply, but unfortunately you didn’t get the message. Ideas like “trigger” may be meaningful in your world, but not mine. I’m sorry that I was unclear about why the way in which you commented was the issue, not the question.

      And use the friggin reply button, dammit.

      1. Steve Brecher

        As to my noting your typos: my pleasure. In that vein: In “would not merely get the message,” “not merely” seems out of place, as if left over after an edit.

        It was not my intent to “question something” in the sense of implying that you might have erred — or, in Miles’s words, to “contradict” you — but to ask a question based on the assumption that you knew whereof you wrote. I’m sorry that I did not make that clear.

        1. Skink

          You wander into this here Hotel, staffed with lawyers and judges. You think you know how legal words work. You don’t. You think you have meaning. You don’t. You think. You don’t.

          Go back to the dictionary. Look up “insignificant.”

          1. ShallMustMay

            You wander into this here Hotel

            Therein lies part of problem if the unwashed are shoved aside as too stupid to understand.

            We would rather stay out of this nasty hotel & leave the illegal definition to the lawyers. Problem is they don’t know & judges defer …


            1. SHG Post author

              This isn’t Law 101 for the unwashed. I know because I get to decide, not you and not them, because it’s my blawg. If this nasty hotel isn’t your safe space, then go elsewhere. Much as Skink may be a bit hard on people, his point is that ever visitor doesn’t get to reinvent SJ to suit his preferences.

              This is a law blog. Law. If it’s what suits you, then contribute to the cost of its existence. If it’s not, then don’t waste your time here. But if you think there’s some problem that entitles the unwashed to tell me how to run this joint, then you’ve wandered into the wrong hotel.

        2. SHG Post author

          You could have asked for an explanation as to why I distinguish unlawful and illegal, if that was your question. Your starting out with dictionary definitions establishing the basis for your question was where you weren’t asking, but challenging, and using the means most susceptible to making people stupider. You came in with the idiot’s attack, even if that wasn’t your intention. Learn from it.

    2. Miles

      Since Mean Old Scott won’t come out and just tell you, I will. By introducing the most meaningless source to contradict a point that is second nature to lawyers, you lent credence to the belief that there is no difference between illegal and unlawful. After all the dictionary said so, as you felt compelled to point out.

      Except we’re lawyers, and we don’t take our orders from dictionaries. If you want to be a lawyer, don’t try to fist fuck up the works (make people stupider) and then make it someone else’s just to dig you out of your shithole, as you did to SHG. Your’re welcome.

  3. Kirk A Taylor

    When filing an i9 form you must provide a document from either list a or list b that verifies your identity. In you example, if someone provides a social security card the law requires a form of I’d that proves their identity and provides a list of acceptable forms.

    1. SHG Post author

      This might come as a shock to you, but people constrained to use false SS# might well have some docs of dubious worth to back it up, but if pushed to provide additional docs, can’t manage it. You can only believe the first 10 John Smiths with the same SS# who apply for a job the same morning.

  4. B. McLeod

    “Sexual preference” may ultimately be restored. A study earlier this year concluded there is no “gay gene” after all. Hence, the “science” that condemned “sexual preference” looks to have not really been “science.”

  5. ShallMustMay

    Fair enough- it wasn’t really Skink nor Law101 as I read SJ for logical thinking & analysis. I presume and hope – however I could be wrong, legal professionals & law students follow you to learn. And the music is nice too.

    I reacted poorly when the comments degraded on the issue of illegal vs unlawful … no matter what Bryan says. With Skink’s hotel reference all I could thing of “you can check out anytime- but you can never leave” What a lovely place. No?

    To my knowledge you only accept online donations. Correct me if I’m wrong. I was happy to support Greenwald’s writing before he moved on – with a money order via usps.

    No reply button specific to your comment available- maybe on purpose.

    1. SHG Post author

      1. When you run out of “reply” buttons, use the last one. Comments only nest 5 deep, so they string after that.
      2. This is a law blog, and one of the things I try very hard to do is not let someone introduce stupidity into the mix. Skink (and some other folks) knows what I go through with dealing with comments (I trash about 1000 comments a week because they’re that batshit crazy), and tries to take some of the heat by shutting down the stupid. He can be a bit tough, but the vast majority of lawyers here appreciate that this hasn’t devolved into reddit level stupidity, and I’ve worked hard over the years to keep it that way. It may not be everyone’s cup of tea, which is fine, but that’s the decision I’ve made and it’s served me well and most people who read SJ deeply appreciate my riding herd.
      3. Online only. Sorry.

      1. From the cheap seats

        I’m a long time reader first time commenter.

        The distinction between illegal and unlawful is clear, still I do not believe that such harsh answer was warranted, just from that reply (and if I did not know better) I could have said that you seemed more like a special snowflake that gets offended by a perceived challenge to his worldview (the question was in no way a challenge) than a lawyer clearing something up

        Anyway, it is you ball and your field, and you can decide how and who you play with, but from a distant observer your reaction to a very civil question is not you shinier moment

        1. SHG Post author

          I suspect someone will take issue with many of my replies here, but is there a reason why you, whoever you are, thinking I’ve been too harsh should somehow influence me? Are you my mother, my priest, my thought leader, the person whose approval I desperately desire to gain? What makes you feel compelled to inform me that you disapprove?

  6. Skink

    ” He can be a bit tough.”

    In deposition today, I was called a “teddy bear.” I guess that lawyer wasn’t paying attention.

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