A woman convicted of alien smuggling did not have a First Amendment-based defense to her detainment by a Border Patrol Agent, a federal appeals court has ruled. The appeals court reasoned that her clothing was not expressive enough to trigger First Amendment review.
The unusual constitutional claim arose after Border Patrol Agent Roger Monterojas stopped a vehicle driven by Karen Mackey, near Laredo, Texas. Originally, Monterojas had allowed Mackey’s vehicle to pass through an inspection point. However, agents discovered that another sedan driven by a female driver contained two people in the trunk of the car.
This caused Monterojas to believe that Mackey’s vehicle and another vehicle driving by yet another female driver also harbored aliens. He later stopped Mackey’s vehicle, conducted a search, and found two persons in the trunk of her vehicle.
Mackey entered a guilty plea for conspiring to transport undocumented aliens in the United States on the condition that she could challenge the legality of the stop. Mackey made two constitutional arguments. The first was that agents engaged in impermissible gender profiling in violation of the Fifth Amendment.
Her second claim was that the border patrol agent violated her First Amendment right of expression by stopping her based on her clothing. At a hearing, the officer testified that Mackey and other women were not dressed in the typical dress code of those crossing the border. Mackey wore a solid gray tank top, solid black pants, and sandals.
The 5th U.S. Circuit Court of Appeals rejected her constitutional-based arguments in its May 18, 2018, opinion in U.S. v. Mackey. Regarding the freedom of expression claim, the appeals court noted a “defect” – that Mackey’s clothing simply was not expressive enough to even trigger First Amendment review.
Certain clothing and messages on clothing can constitute speech or expression for purposes of the First Amendment. However, there is nothing inherently expressive about a gray tank top and black pants. Mackey relied on a decision finding that an NRA sticker on a vehicle was a form of expression under the First Amendment that could not justify a vehicle stop. The appeals court found that precedent “irrelevant.”
The First Amendment argument in this case does appear to be a stretch. Clothing needs to be sufficiently expressive to trigger free-speech review.