Linguistic arrests? How the Supreme Court could be criminalizing the way we speak

Earlier this year, the United States began detaining people based on whether they spoke Spanish or “accented English,” on suspicion of illegal entry. A court told the government to stop, so the US appealed. When the appeals court did not restart the detentions, the US filed an emergency petition with the Supreme Court. There, the government won its suspension by a vote of 6-3. Lower courts have yet to decide whether the practice is constitutional, but while we wait, the United States can continue its language detentions.

We don’t know what each justice thinks about this case, and that is a normal aspect of Supreme Court emergency petitions. There is a danger in rushing to write because the facts of the case have not yet matured. Votes may change in that period. Judge Kavanaugh, however, did give his views on why the suspension was appropriate, stating that the United States would likely win in the end. In other words, right now, Judge Kavanaugh believes that detaining people based on their language or accent is constitutional.

That’s an astonishing position given the numbers. He US Census shows that 24 million US citizens over the age of 18 speak Spanish at home. For the general population — including both citizens and immigrants — the number rises to approximately 37 million. If we add children over 5 years old, it is close to 45 million. Many of these families have been here for generations. In contrast, the United States told courts that 15 million of its residents entered illegally, and did not break down that number by language.

Speaking Spanish at home does not make someone an exclusive Spanish speaker. But it does make that language the one they generally feel most comfortable using. We seek that comfort in high-stress conversations where accuracy matters — like when talking to law enforcement. Now the United States has turned this innocent behavior into an indicator of illegal activity, even though most of its native Spanish speakers reside here legally, by their own admission.

“Accented English” creates a broader constitutional problem, because every English speaker has an accent. There is no standard one. Different dialects prevail in different areas, sometimes even side by side and overlapping. So what exactly is this “suspicious accent” that worries the United States so much? The government hasn’t told us yet. Without that baseline, almost anyone with a particular or unique way of speaking English can be targeted by law enforcement.

It’s true, there is a general dialect shared by native Spanish speakers learning English. Because? Spanish and English share some sounds, but each also contains sounds that the other does not have. We learn to speak at a very early age, 2 to 5 years more or lessbased on the sounds of language used around us? most commonly in the home. After that, we begin to lose the ability to easily pick up new sounds and use them. To accommodate a later learned language, we often substitute a similar sound from our primary language. Therefore, an “accent” develops that shares similar characteristics between speakers of one language learning to speak another. Like other flavors of English, the “accent” that arises from Spanish speakers learning English is simply another dialect of English.

None of this suggests illegal entry. The linguistic process of developing a second language accent occurs at the borders, at a regular pace. We can tell from the numbers the United States told the courts. 48 million migrants live in the United States, and the government says 15 million entered illegally. Migrant or not, approximately 71 million people speak a language other than English at home. So some 20 million citizens are now subject to random harassment by law enforcement — in Judge Kavanaugh’s view, giving the government a generous definition of “accent” — just because of how they speak. Another 35 million legal migrants are also caught in this linguistic dragnet.

And it is a raid built on a misunderstanding of the language itself, ensnaring millions who have every right to live and work here. A Puerto Rican born in the Bronx, who has never lived anywhere else, may still have Spanish-inflected English that makes them sound “suspicious” under this policy. The same goes for a fourth-generation Mexican-American in Texas. None of these people have crossed a border illegally. However, under the government’s theory, his speech is enough to justify detention.

None of this should even be controversial. Our courts allow law enforcement to detain someone only when there is a particularized and reasonable suspicion of unlawful conduct. Group suspicion is not enough. It never has been. Imagine if the DEA arrested every person with bad teeth on suspicion of methamphetamine use. Or if the police arrested every hooded teen because some crimes have been committed by hooded teens. Or if the TSA stopped every traveler with a beard because some terrorists in the past had beards. These are lazy stereotypes — not constitutional grounds for detention.

Judge Kavanaugh’s suggestion that this practice is legal is troubling because it erases this fundamental constitutional principle. The Constitution does not allow detention without suspicion based on group traits. It requires individualized suspicion, rooted in evidence. The government cannot burn the haystack to find a needle. Fortunately, the Supreme Court still has time to tell us that.

Eirik Cheverud