Legal/Law/Criminal Justice and Reform

‘People Have To Know What They Can Talk About’: SCOTUS Case Pits Free Speech Against Immigration Enforcement

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The Supreme Court considered Monday whether a law that makes it a crime to “encourage or induce” illegal immigration should be struck down as a violation of the First Amendment.

The defendant in the case, Helaman Hansen, was convicted in 2017 for running a program for undocumented immigrants advertising a pathway to citizenship through “adult adoption,” raking in more than $1.8 million from the fees paid by at least 471 participates between 2012 and 2016, according to court documents. While the Ninth Circuit affirmed his conviction on charges of mail and wire fraud, it determined that the law behind his conviction on two counts of encouraging or inducing non-citizens to reside in the United States for financial gain was “overbroad and unconstitutional” because it “covers a substantial amount of speech protected by the First Amendment.”

“This statute makes it a crime for a grandmother to say she doesn’t want her undocumented grandchild to leave her, a doctor to advise her patient with an expiring student visa that the patient needs medical treatment provided in the United States, a priest to inform a noncitizen parishioner whose employment authorization is ending about church child-care and pantry resources that would support her remaining, and a lawyer to counsel an out-of-status noncitizen that she has the ability to become a lawful permanent resident if she does not leave the country,” Hansen’s brief argues.

The U.S. government argues the law has no history of being used this way, favoring a narrow interpretation that reads “encourage or induce” as “aiding and abetting.” In the 70 years it has been on the books, the law has never been applied in the way the Ninth Circuit suggested, Principal Deputy Solicitor General Brian Fletcher, who represented the United States during oral arguments, said in response to a question from Justice Clarence Thomas.

Esha Bhandari, the lawyer representing Hansen, noted that cities have been asked to certify compliance with the law. She also argued that the law is unconstitutional based on its plain language.

In 1952, the words “aiding and abetting” indicating a narrower interpretation were removed from the statute by Congress, she said. When Justice Ketanji Brown Jackson posed a question relating to this change, Fletcher argued that removing the words is not sufficient to prove Congress’ intent, which simply may have been improving word economy by removing synonyms.

Justices Jackson and Sonia Sotomayor were most sympathetic to Bhandari’s arguments, though Justice Elena Kagan also appeared somewhat critical of the government’s position.

“We’re criminalizing words related to immigration,” Sotomayor said. “People have to know what they can talk about.”

A number of groups filed amicus briefs predicting far-reaching implications for the case. A coalition of religious groups, including Catholic Charities of New York and Religious Action Center of Reform, argue the law puts their charity work at risk of prosecution.

“Central to the faith of the amici organizations is a commitment to religiously motivated advocacy and activity in support of the dignity of all human beings, irrespective of immigration status,” the religious groups wrote. “Yet the statute at issue here requires amici to either turn away those in need based on immigration status, cease to perform certain charity and advocacy work entirely, or face the realistic possibility of criminal prosecution.”

The First Amendment Coalition, Freedom of the Press Foundation, and others argued that the language is so broad that “any journalist who reports on immigration, in ways offensive to the government, risks prosecution under the statute.”

A group of cities led by San Francisco filed a brief suggesting the law may impact the services they provide “to all of their residents, including undocumented noncitizens.”

Justice Neil Gorsuch expressed that he found it “awkward” to be considering third-party rights without an example of them being violated, especially when it is so clear in Hansen’s case that he was not chilled from speaking to and scamming illegal immigrants.

Justices also spent time questioning whether it matters that the offense the statute bans encouraging — remaining in the U.S. illegally — is not itself a criminal offense.

Justice Samuel Alito pointed out that there are other laws which make it illegal to encourage a civil offense, such as laws against soliciting prostitution or suicide. The difference with this statute, Bhandari argued, it that the offense is one Congress itself has encouraged by, for example, expressing an interest in helping battered immigrant women gain a legal status.

The court heard a similar case based on the law in 2020, United States v. Sineneng-Smith, but did not address the overbreadth question posed in United States v. Hansen.