By John & Nisha Whitehead
WASHINGTON, DC — In a 7-2 ruling that protects anti-government speech, the U.S. Supreme Court has narrowed the scope of a federal law that makes it a crime to “encourage” illegal aliens to remain in the country.
In United States v. Hansen, the Supreme Court held that the law, which prohibits encouraging or inducing illegal immigration, must be interpreted as forbidding only the intentional solicitation or facilitation of certain unlawful acts, and not as prohibiting a substantial amount of constitutionally protected speech.
Attorneys for The Rutherford Institute and FIRE had filed an amicus brief warning that laws which criminalize mere encouragement of civil disobedience could chill speech essential to advocating for political and social change. For example, speech encouraging civil disobedience was a powerful tool in movements for the abolition of slavery, women’s suffrage, civil rights, and protesting government overreach in the face of COVID-19 lockdowns and policies.
“This statute laid the groundwork for the government to muzzle any nonviolent, political speech that challenges government injustice,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “This is exactly the kind of law that would have rendered countless Americans as criminals, from Revolutionary War patriots to Martin Luther King Jr., for encouraging resistance and civil disobedience in the face of government tyranny.”
Under 8 U.S.C. § 1324(a)(1)(A)(iv), a person is prohibited from encouraging or inducing a noncitizen to enter or remain in the United States when doing so would be in violation of the law. The law is a felony and carries a penalty of up to five years’ imprisonment. Helaman Hansen was charged with violating this statute among others, and moved to dismiss this charge on grounds that the law is facially overbroad by penalizing protected speech in violation of the First Amendment.
Hansen’s attorneys argued that the statute would punish the author of an op-ed criticizing the immigration system, or a minister who welcomes undocumented people into the congregation and expresses the community’s love and support.
The trial court rejected Hansen’s argument and found him guilty, but the Ninth Circuit Court of Appeals reversed and ruled that the statutory provision is facially overbroad because it criminalizes speech such as encouraging an undocumented immigrant to take shelter during a natural disaster, advising an undocumented immigrant about available social services, telling a tourist that she is unlikely to face serious consequences if she overstays her visa, or providing certain legal advice to undocumented immigrants.
On appeal, however, the U.S. Supreme Court rejected the Ninth Circuit’s reasoning, and indicated that the statute should be interpreted narrowly in such a way as to avoid any such constitutional violations. The Court noted that the statute could penalize acts of smuggling noncitizens, providing counterfeit immigration documents or fake social security numbers, or making fraudulent representations to take advantage of noncitizens for personal financial gain.
While Rutherford and FIRE had argued that the Court should have gone further and struck down the statute for being viewpoint-discriminatory and chilling protected speech, the majority noted that nothing in its ruling prevents a future defendant from challenging the statute as being unconstitutional as applied to him in violation of the First Amendment.
Erin Glenn Busby, Lisa R. Eskow, and Michael F. Sturley with the University of Texas School of Law’s Supreme Court Clinic advanced the arguments in the amicus brief.
The Rutherford Institute, a nonprofit civil liberties organization, defends individuals whose constitutional rights have been threatened or violated and educates the public on a wide spectrum of issues affecting their freedoms.
The views and opinions expressed in this article are those of the author[s] and do not necessarily reflect the views of The Trends Journal.