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1A or not 1A

Will the Supreme Court Make a Break With the First Amendment?

The high court will decide if free speech rights extend to inducing illegal immigration.

Kent Nishimura/Getty Images

The Supreme Court hears a fair number of immigration cases and a fair number of First Amendment cases. Rarely does it hear a case that touches on both subjects. Monday’s oral arguments in United States v. Hansen offered little clarity about how the justices might rule on a federal statute that makes it a crime to “encourage” or “induce” a noncitizen to illegally enter or stay in the country. How the justices resolve the case could affect both the nation’s ongoing debate over immigration and how other First Amendment cases are resolved in the future.

The case involves Helaman Hansen, who worked for a California-based organization called Americans Helping America Chamber of Commerce for most of the 2010s. Federal prosecutors charged him with a bevy of federal crimes in 2016 for an alleged scheme in which unauthorized immigrants would pay him thousands of dollars to set up adult adoptions for them. These adoptions would supposedly help them obtain legal status and even U.S. citizenship. While foreign-born children can generally be naturalized via their adoptive American parents, however, no such pathway exists for adult adoptees.

Among the counts were two charges that Hansen had knowingly encouraged foreign nationals to break the law in hopes of obtaining citizenship through this scheme. A provision in federal law makes it a crime if someone “encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.” Similar language in federal immigration law dates back to the 1880s, when Congress began taking tougher measures against new waves of immigrants to the U.S. The Justice Department calls this the anti-inducment provision; Hansen calls it the encouragement provision.

After his conviction, Hansen argued that those two counts are unconstitutional on First Amendment grounds. He argued that the law was overly broad, capturing a wide range of otherwise protected speech under the First Amendment. His lawyers argued that, as written, the provision could be theoretically used to criminalize a grandmother who tells her undocumented family members that she wants them to stay in the country or a priest who instructs a parishioner with an expiring work visa about access to social services. Hansen also noted that the law criminalized the encouragement of acts that are not technically illegal: Being present in the U.S. without legal authorization is a civil offense, not a criminal one.

The Ninth Circuit Court of Appeals ultimately agreed with Hansen in a unanimous ruling in the spring of 2022. “It is clear that subsection (iv) covers a substantial amount of protected speech. Many commonplace statements and actions could be construed as encouraging or inducing an undocumented immigrant to come to or reside in the United States,” Judge Ronald Gould wrote for the three-judge panel. “For example, the plain language of subsection (iv) covers knowingly telling an undocumented immigrant ‘I encourage you to reside in the United States.’ Such a statement is protected by the First Amendment.”

At oral arguments on Monday, lawyers representing Hansen told the court that the federal government was trying to rework the statute itself to save their prosecution. “The government concedes that the statute is unconstitutional under its plain meaning,” Esha Bhandari, an ACLU lawyer who argued on behalf of Hansen, told the justices. “Instead, it asks this court to rewrite the statute to prohibit only solicitation and aiding and abetting. But that is Congress’s job, and Congress in 1952 took out the very words the government now asks this court to write in: ‘solicit’ and ‘assist.’”

The Justice Department tried to reassure the justices that the breadth of those terms would not lead to unpalatable prosecutions, a concern that led the Ninth Circuit Court of Appeals to rule in Hansen’s favor. “I acknowledge that it will sometimes be hard to draw the line between protected advocacy and unprotected solicitation, but that problem is not unique to [this provision],” Brian Fletcher, who represented the federal government, explained to the justices. “Exactly the same issue can arise under any solicitation or aiding-and-abetting statute.”

“[Hansen’s] victims included not only noncitizens already in the United States but also noncitizens abroad, whom he induced to travel to the United States to participate in the scheme,” the Justice Department alleged in its brief for the justices. “In at least two instances, [Hansen] induced noncitizens who had lawfully entered the country on visas to remain in the United States unlawfully, beyond their periods of authorized stay, while continuing to pay him fees.”

During oral arguments, Justice Sonia Sotomayor sharply questioned the Justice Department about its reading of the statute. She cited a hypothetical where a grandmother is in the country without authorization and her son tells her she is always welcome to stay with them. “Can you prosecute this?” she asked Fletcher. “And, if not, why not? So what do you tell the grandmother?”

“I think not, Justice Sotomayor, I think it’s very hard to—” Fletcher began. Sotomayor then interrupted him. “Stop qualifying with ‘think,’ because the minute you start qualifying with ‘think,’ then you’re rendering asunder the First Amendment,” she told him. “People have to know what they can talk about.”

Concerns about overbreadth weren’t limited to the court’s liberal members. Justice Brett Kavanaugh questioned Fletcher about a group of friend-of-the-court briefs filed by charities that worried the law’s enforcement could imperil their missions. “You’re familiar with all the hypotheticals,” the justice told him. “But they seem to have a sincere concern about that and that it will deter their kind of everyday activities. That’s what a lot of charities do as part of their day-to-day activities with noncitizens who are not in the country lawfully.”

But some of the justices, particularly on the court’s right, did not seem fully persuaded by Hansen’s arguments. Justice Neil Gorsuch appeared to take issue with the overbreadth analysis in this case, noting that Hansen’s full range of alleged offenses goes beyond speech-related ones. “It is a little awkward, though, that this case comes up in a posture with Mr. Hansen, who I don’t think anybody could say he’s been chilled from speaking,” he told Bhandari. “I mean, he’s had no problem soliciting people here in this country and defrauding them to the tune of lots and lots of money.”

Justice Samuel Alito also pressed Bhandari on the full contours of her argument, particularly on the point that the law was criminalizing the encouragement of noncriminal behavior. If prostitution were not a crime, he asked, would it be possible to criminalize anyone who encouraged people to become prostitutes? (It was unclear whether he was referring to Nevada, which allows it in certain counties.) After clarifying that this did not mean actual solicitation, Bhandari said yes. “It would just be subject to First Amendment scrutiny, which means that if the government had a compelling interest and narrowly tailored that law, they could do so,” she explained.

What about encouraging people to commit suicide, Alito asked? Bhandari said it would fall under the same strict First Amendment analysis. Even if they were intellectually disabled, he continued, and “particularly vulnerable to that encouragement?” She agreed. “Again, I think, if a state or Congress passed a law that was directed specifically at encouraging someone in that vulnerable state and narrowly tailored it, it very well might pass strict scrutiny,” Bhandari explained.

Then why, Alito concluded, could the federal government not criminalize encouragement of an otherwise legal act here? “Now people disagree about this, but the law expresses a strong interest in regulating who is allowed to remain in the United States,” he noted.

The scope of the Supreme Court’s final ruling will depend on a few factors. For one, the justices could uphold the statute in Hansen’s situation but note that future First Amendment challenges might succeed on a case-by-case basis. That would allow the courts to dispose of cases brought against more sympathetic defendants—the hypothetical grandmothers, priests, and charity workers of the world, for example—while leaving the law intact. The justices could also require that prosecutors show that the defendant acted with criminal intent, which could also exculpate certain edge cases.

At the same time, a ruling that limits the overbreadth doctrine could have knock-on effects in other First Amendment cases. Justice Amy Coney Barrett noted at one point, for instance, that the defendants found relatively few instances of overbroad prosecutions despite the provision’s long history, suggesting that the defendant and his allies might not have that much to worry about. If the court narrows the scope of the overbreadth doctrine or requires additional factors to meet that threshold, it could become harder for plaintiffs to challenge vaguely written laws on free speech grounds in the future. The court’s decision on how to navigate these waters won’t be released until the end of June at the latest.