‘Encouraging’ illegal immigration is not protected as free speech, Supreme Court rules

WASHINGTON —  The Supreme Court on Friday rejected a free-speech challenge to a long-standing immigration law that makes it a crime to “encourage or induce” a noncitizen to illegally enter or reside in this country.

By a 7-2 vote, the justices upheld criminal charges against a Sacramento-area man who charged nearly 500 immigrants who lacked documentation up to $10,000 on the phony promise that he could help them become U.S. citizens.

Helaman Hansen was convicted on 15 counts of fraud and two counts of encouraging and inducing unlawful immigration “for private financial gain.” All told, he “raked in nearly $2 million” from his scheme, the court said. He was sentenced to 20 years in prison.

But his case came before the high court based on the claim that some innocent and well-meaning persons could be prosecuted if the word “encouraged” were read broadly. His lawyers said this could include friends or family members who encourage an immigrant to come to this country or an advocate who writes in favor of illegal immigration.

However, in United States vs. Hansen, the justices said they would not stretch the 1st Amendment to protect criminal conduct from prosecution and punishment.

Writing for the court, Justice Amy Coney Barrett said there was no evidence the law was being misused against innocent people. While Hansen and his attorneys cited “a string of hypotheticals,” she said they “failed to identify a single prosecution for ostensibly protected expression in the 70 years since Congress enacted [the] clause.”

Rather, she said the law has been applied narrowly to “criminal solicitation” of illegal immigration, such as by smugglers who promise to bring migrants to this country for a fee.

The ruling overturns a decision of the 9th Circuit Court of Appeals which struck down the “encourage and induce” provision on the grounds that it was overly broad and thereby violated the 1st Amendment. “We apply the overbreadth doctrine so that legitimate speech relating to immigration law shall not be chilled and foreclosed,” the San Francisco-based appeals court said.

“That was error,” Barrett said. “Properly interpreted, this provision forbids only the intentional solicitation or facilitation of certain unlawful acts. It does not ‘prohibi[t] a substantial amount of protected speech’ — let alone enough to justify throwing out the law’s ‘plainly legitimate sweep.’”

Justices Ketanji Brown Jackson and Sonia Sotomayor dissented. They questioned whether the court could narrow the meaning of the broadly worded law.

“Ordinary people confronted with the encouragement provision, for instance, will see only its broad, speech-chilling language,” Jackson wrote. “The court’s decision leaves many things about future potential prosecutions up in the air.

Biden administration lawyers had urged the court to reverse the 9th Circuit’s ruling because the law was used to prosecute smugglers who made money by encouraging migrants to illegally enter this country.

ACLU lawyers who supported Hansen’s appeal said they welcomed the court’s opinion narrowing its scope.

“The Supreme Court has drastically limited the encouragement provision to apply only to intentional solicitation or facilitation of immigration law violations,” said Esha Bhandari, deputy director of the ACLU’s Speech, Privacy and Technology Project. “As written by Congress, the law has left people wondering what they can safely say on the subject of immigration. Now we expect the government to respect free speech rights and only enforce the law narrowly going forward.”