Supreme Court hears free-speech challenge to federal ban on encouraging illegal immigration

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The Supreme Court on Monday grappled with the scope of the federal crime involving the encouragement of illegal immigration and whether it violates the First Amendment.

The Justice Department urged the high court to reverse a lower court decision and uphold the crime as constitutional, arguing the free-speech concerns are misplaced because they assume an erroneous, broader reading of the law as a premise.

Whether that argument holds up will in part depend on if the justices agree with the government’s narrower view.

Principal Deputy Solicitor General Brian Fletcher, representing the Biden administration, argued the “encourages or induces” language in the law only establishes a crime when the defendant actually facilitates illegal immigration. Fletcher said the terms are synonymous to crimes of “aiding and abetting” or “soliciting,” as opposed to making a benign statement.

That argument raised piercing questions in particular from two of the court’s liberals — Justice Ketanji Brown Jackson and Justice Sonia Sotomayor — who noted that Congress amended the law in 1952 and replaced those terms.

“If we’re going to define a statute, we shouldn’t define it to put in words that Congress took out,” said Sotomayor. “And Congress previous to this statute had the words ‘aiding and abetting’ and ‘soliciting’ and took them out. So now we’re putting back in what Congress took out?”

“I disagree, Justice Sotomayor,” Fletcher responded. “I think this is an area of the law where commentators and the court have long recognized there are lots of different words that have overlapping meanings that legislatures and courts use to capture these concepts.”

The dispute involves the case of Helaman Hansen, who a jury in 2017 found guilty of two counts of encouraging illegal immigration for private financial gain — in addition to 15 fraud charges — for falsely promising hundreds of people a path to citizenship through adult adoption and receiving $1.8 million through the scheme.

On appeal, Hansen successfully tossed the two immigration-encouragement counts by challenging the crime as unconstitutionally overbroad, contending it swept too far into constitutionally protected speech.

In most contexts, courts favor ruling only on the specific application of a law at issue. But in free speech cases, the high court has given parties the ability to challenge laws on their face, even if the defendant’s own speech was unprotected, out of concern that others’ speech may still be unconstitutionally chilled.

Known as the overbreadth doctrine, the high court has found laws to violate the First Amendment when they prohibit a substantial amount of protected speech, regardless of the particular case at hand.

Monday’s oral argument consequently focused on the crime’s implications in other circumstances. Even if the justices agree with the government and reverse the lower decision, they appear likely to send Hansen’s specific case back to a lower court for further proceedings.

Esha Bhandari, Hansen’s attorney, acknowledged her client’s conduct wasn’t commendable, but Bhandari contended the law could be used against lawyers and medical professionals who support migrants.

“This court should not create a new category of unprotected speech,” Bhandari said.

It was one of a barrage of hypotheticals. Sotomayor noted an amicus brief from the Reporters Committee for Freedom of the Press supporting Hansen, which referenced reports of the federal government invoking the statute to justify surveilling journalists covering the U.S.-Mexico border and immigration professionals.

Justice Brett Kavanaugh, referencing a coalition of religious organizations’ amicus brief supporting Hansen, asked the government as to whether they could hold groups liable for providing food, shelter and other aid to migrants while encouraging them to stay.

“They seem to have a sincere concern about that and that it will deter their everyday activities. That’s what a lot of charities do,” Kavanaugh said.

But not all of the justices appeared favorable to using the overbreadth doctrine to strike down the law.

“It just a little awkward that we’re worried about chilling other people’s speech, and it has  nothing to do with the case before us,” Justice Neil Gorsuch said.

That perspective aligns with previous concerns expressed by fellow conservative Justice Clarence Thomas about the doctrine when the court issued its decision in a near-identical challenge to the immigration encouragement crime three years ago.

The justices unanimously resolved that case on other grounds, leaving the First Amendment question untouched, but Thomas in a concurring opinion wrote that he had “developed doubts” about the overbreadth doctrine.

A decision in the case, United States v. Hansen, is expected by late June.

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