A historic level of activism and protest has been seen in our nation’s streets and public parks over the past two years. These protests reflect the profound importance of our constitutional right to peaceful assembly: People come together, voice their dissent, and organize for change. The right to join with neighbors in protest is core to the First Amendment and critical to a healthy and vibrant democracy.

On Jan. 20, 2018, thousands of people gathered on Cambridge Common in Cambridge, Massachusetts, for the second Women’s March. As in hundreds of other cities around the world, the Cambridge event was organized in protest of the Trump administration’s attacks on the civil rights of women and other marginalized people. The event was peaceful, with a light police presence.

And yet, Cambridge event organizers were billed for thousands of dollars for police details and emergency medical services. They were also told to expect additional invoices for police from neighboring cities and towns and the local transit system.

Despite successfully completing the permitting process and paying permit application fees before the event, organizers were told less than two weeks before the event that they could be additionally charged for public safety services. That discussion happened after the organizers mentioned to police that there could be counter-protesters present at the event.

Charging rally organizers for public safety services as a condition for granting permits deters political participation — plain and simple. Most event organizers would think twice about coordinating a protest if they thought they might owe $4,000, like the Cambridge Women’s March organizers ultimately owed. In fact, the Cambridge organizers flagged the bills to the ACLU for that very reason. They feared the impact of the city’s practices on the exercise of free speech of all who seek permits for the Cambridge Common and other public parks.

The First Amendment and the free speech guarantee of the Massachusetts Constitution exist to prevent precisely this sort of chilling effect.

As the U.S. Supreme Court ruled in Forsyth County, Georgia v. The Nationalist Movement in 1992, governmental charges for basic public safety services that are based on the anticipated reaction to expressive events in public parks are inconsistent with the First Amendment — and in this particular case, the free speech and assembly provisions of the Massachusetts Constitution. Since public safety services benefit not just event organizers, but also passersby or counter-protesters, charges for their cost are not a lawful fee but rather an unlawful tax on speech and assembly under Massachusetts law.

That is why the ACLU of Massachusetts recently filed a lawsuit against the city of Cambridge, challenging its policy and the Women’s March charges. At a time when the federal government is inciting division and seeking to chill free speech, the voices of rally organizers and participants should be encouraged and applauded — not taxed.

From the Women’s March to recent Families Belong Together rallies to the Occupy movement, peaceful assembly in public parks has been a proud part of this country’s history and constitutional tradition. That’s why we’re fighting to say: Taxes on free speech and assembly is about as un-American as you can get.

Unconstitutional searches of travelers’ electronic devices, conducted by Customs and Border Protection officials without a warrant based on probable cause, are on the rise. As this issue is litigated, Congress can take steps to stop individuals’ rights from being violated. 

On Thursday, I testified in front of the Senate on CBP’s practice of seizing and searching smartphones, laptops, and other electronic devices at the border. At the hearing, members of Congress — including Senators Rand Paul (R-Ky.), Ron Wyden (D-Ore.), and Gary Peters (D-Mich.) — expressed objections to CBP’s practices. They relayed accounts they had heard about individuals subject to humiliating searches, detained, and even chokeholds as CBP officials confiscated their devices. In addition, in light of complaints of individuals being forced to endure inappropriate questioning regarding their religion, political affiliations, and even charitable contributions, senators also raised concerns that individuals were being inappropriately targeted based on First Amendment-protected activities or other impermissible factors.

Congress can put an end to these types of incidents by passing legislation, including the Protecting Data at the Border Act. Congress should make clear that a warrant is required for all searches of the content of electronic devices; that travelers are not under an obligation to unlock or provide device passwords; and that individuals cannot be unreasonably detained for failing to consent to a search or to unlock a device.

Before such legislation passes, members of Congress should aggressively press the Department of Homeland Security to pass new rules to protect individual’s rights. CBP updated its guidance, which governs its searches of electronic devices, earlier this year, but the new rules still have glaring loopholes and deficiencies. As I explained in my testimony, DHS should be pressed to update this policy in four key ways:

Get a warrant

The policy should require a warrant in any case where the government seeks to search the contents of a device. Right now, the policy requires no suspicion of wrongdoing for basic searches, which includes a manual search of any of the documents, photos, or other information stored on a phone. This does nothing to prevent incidents, like this one, where officers reportedly looked through a traveler’s intimate photos with his wife without approval warrant.. Even for so-called “advanced searches,” which can involve the use of external equipment to copy or search information, the policy only requires reasonable suspicion or a national security concern, both of which provide a lower level of protection than a warrant.

Stop coercing travelers into handing over private information

The policy should clarify that travelers are not obligated to unlock a device or consent to a search.  Currently, the guidance contains language stating that CBP believes individuals must present devices in a manner that allows inspection.  This language is ambiguous and fails to make clear that travelers are not obligated to provide their passwords or help agents unlock their devices. In order to prevent individuals from being coerced into providing such information, the guidance should similarly prohibit unreasonably detaining individuals for failure to take such actions.

Prohibit border searches that are really for domestic investigations

The guidance should narrow the purposes of a search. CBP should be prohibited from conducting searches at the request of other agencies for law enforcement purposes — which allows the government to use warrantless border searches to circumvent Fourth Amendment restrictions that apply to domestic investigations. In addition, CBP should eliminate “national security concerns” as a ground to engage in suspicionless device searches. Such language is vague, could be interpreted as applying in cases where an individual poses no imminent threat, and increases the likelihood of discriminatory and arbitrary application of the policy. 

Create consistency

Finally, DHS should adopt agency wide guidance. Currently, Immigration and Customs Enforcement — a DHS agency separate from CBP — maintains its policy dating from 2009. That allows border device searches without any suspicion of wrongdoing. Among other things, unlike in the CBP guidance, the ICE policy does not even clarify that device searches cannot reach information stored in the cloud. DHS should make sure the same policies apply to all agencies under its control.

Senator must press DHS to make these changes to end the invasive and humiliating warrantless searches that tens of thousands of travelers have been forced to endure. 

Over Independence Day weekend, I joined hundreds of fellow Japanese-Americans at the Tule Lake Pilgrimage. Held on the site of the Tule Lake Segregation Center, this pilgrimage offers a chance to remember how the U.S. government imprisoned our families without trial during World War II.

President Franklin D. Roosevelt provided the legal authority for this incarceration by signing Executive Order 9066, which directed military officials to “prescribe military areas . . . from which any or all persons may be excluded.” The language of the order was facially neutral, in that it named no particular ethnic groups. However, everyone involved in its drafting and implementation knew it would target people of Japanese ancestry, both U.S.-born citizens and noncitizen immigrants.

In the ensuing weeks and months, Lt. General John L. DeWitt — an avowed racist who famously declared that “a Jap’s a Jap” regardless of citizenship — designated large swaths of Arizona, California, Oregon, and Washington as “military areas” from which Japanese-Americans would be “excluded” by force. As a result, my grandmother Bette — a 23-year-old aspiring fashion designer from a small California town — was forced to interrupt her junior college education to be imprisoned with her parents and siblings at the Tule Lake prison camp. They were assigned to tarpaper barracks to live behind barbed wire under the watch of armed guards. Meanwhile, my grandfather Kuichi — who had actually been drafted into the U.S. Army before Pearl Harbor — was left in an uncomfortable limbo while military authorities decided what to do with this newly enlisted soldier who happened to be of an “enemy alien” race. Eventually, they ordered him to join the fight in Europe.

In the years that followed, a handful of Japanese-Americans pursued legal challenges to the various orders that Lt. General DeWitt issued under EO 9066, including curfews, travel restrictions, and ultimately the roundup and incarceration of Japanese-Americans. The first to be decided by the Supreme Court were Yasui v. United States and Hirabayashi v. United States in 1943, which approved the race-based curfews. The last were its 1944 decisions in Ex Parte Endo, which avoided deciding the constitutional question, and Korematsu v. United States, which approved the final roundup as constitutional. Writing for the majority in Korematsu, Justice Black asserted:

“To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire.”

Three justices saw the folly and danger of this blinkered approach. Justice Roberts characterized the case as “a clear violation of Constitutional rights.” Justice Murphy described the racist origins of the orders and wrote bluntly: “I dissent, therefore, from this legalization of racism.” And Justice Jackson wrote a prescient warning about the dangers of “a judicial opinion [that] rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order.” Once racial discrimination has been validated by the highest court, that principle “then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”

Meanwhile, at least 331 people died while incarcerated at Tule Lake under the authority of EO 9066. Those not cremated were buried in a cemetery inside the camp’s perimeter. It is not possible to visit that cemetery today. After the war, local residents bulldozed the graveyard and used the soil and bones as construction fill. All that remains is a lumpy depression in the ground, next to what is now the county dump.

I read the Supreme Court’s decision in Trump v. Hawaii, the lawsuit challenging the third iteration of Trump’s Muslim ban, on my way to the Tule Lake Pilgrimage. And I could not stop thinking about that graveyard and its desecration.

In Trump, the court upheld the Muslim ban despite overwhelming evidence that it was motivated by anti-Muslim prejudice. Yet the court simultaneously repudiated Korematsu v. United States, writing that the 1944 decision “was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—‘has no place in law under the Constitution.’” But this did not truly lay Korematsu to rest.

The Supreme Court justices who signed the majority opinion may believe their words buried Korematsu in the graveyard of history. But Korematsu was already resting in a shallow grave and nearly completely repudiated. What they actually did was to deliver a eulogy even as they disinterred its bones and infused its spirit into another injustice.

In Trump, Chief Justice Roberts contended it is “wholly inapt” to liken the “forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race” to the Trump administration’s “facially neutral policy denying certain foreign nationals the privilege of admission.” Yet the mental gymnastics that the Trump court went through to avoid finding religious animus are virtually the same as those the Korematsu court employed to avoid finding racial animus.

As Justice Sotomayor wrote in dissent:

“By blindly accepting the Government’s misguided invitation to sanction a discriminatory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security, the Court redeploys the same dangerous logic underlying Korematsu and merely replaces one ‘gravely wrong’ decision with another.”

Moreover, as legal scholar Eric Muller has written, the narrowness of the court’s repudiation of Korematsu leaves the identical reasoning of Hirabayashi (holding that the race-based curfew was “not wholly beyond the limits of the Constitution and is not to be condemned merely because in other and in most circumstances racial distinctions are irrelevant”) intact and free to be cited by future decisions.

Thus, the Supreme Court’s disingenuous funeral ceremony for Korematsu gives me no comfort as a Japanese-American. Instead of truly putting Korematsu to rest, the Muslim ban decision revived Korematsu under another name. And the re-animated spirits of Korematsu and the other Japanese-American incarceration decisions will continue to roam American jurisprudence until Trump receives its own funeral rites.