WASHINGTON (CN) — The Biden administration will head to the Supreme Court next week to defend a federal law that criminalizes certain speech. While the law is aimed at those who would encourage people crossing the border to skirt law enforcement, it has also been used by the government to surveil journalists.
The secret government database of activists and reporters came to light in 2019, a year after the so-called human caravans made up of thousands of Central American asylum seekers trekking to the U.S. border brought widespread media coverage.
NBC's San Diego affiliate Channel 7 revealed that the reporters and activists monitored by the government were all connected to the migrant caravans. In some cases, the government even placed alerts on journalists' passports.
U.S. authorities rationalized these surveillance efforts under a federal law that criminalizes encouraging illegal immigration. The government traces the criminalization of encouraging illegal immigration back almost 150 years.
“For more than a century, federal law has prescribed criminal penalties for ‘encouraging’ or ‘inducing’ certain violations of the immigration laws,” U.S. Solicitor General Elizabeth Prelogar wrote in the government’s brief. “The current prohibition, codified in 8 U.S.C. 1324(a)(1)(A)(iv), traces its roots to the beginnings of modern immigration law.”
The law that the justices will dissect Monday derives from a section of the Immigration and Nationality Act whose anti-inducement provision makes it a felony to willfully or knowingly encourage unlawful entry into the United States. In the Immigration Reform and Control Act of 1986, Congress modified that statute to criminalize anyone who encourages or induces illegal immigration knowing it violates U.S. law.
Nonprofit press freedom groups say the law is unconstitutionally overbroad and threatens First Amendment protections.
“Contrary to its representations that the statute is only enforced against individuals seeking commercial gain, the federal government has admitted to invoking 8 U.S.C. § 1324 to gather information about journalists reporting on the ‘migrant caravan’ that traveled to the U.S.-Mexico border in 2018 and 2019,” the First Amendment Coalition, the National Press Photographers Association, the News Leaders Association and other groups wrote in an amicus brief. “The government kept that information in a ‘secret database’ and forced journalists to disclose their sources.”
And journalists are not the only ones at risk under the law, the brief continues.
“As the Ninth Circuit pointed out, ordinary citizens can fall under the statute’s reach for uttering commonplace phrases like: ‘I encourage you to reside in the United States,’” the groups wrote. “Along these same lines, under 8 U.S.C. § 1324 (a)(1)(A)(iv), all journalists and opinion writers — even from ‘papers of record’ like the New York Times — could easily be caught up in Subsection (iv)’s dragnet for using ‘commonplace phrases’ discussing the need for certain types of immigration reform.”
At the same time that the government is leaning on the law, the groups warned, public officials have also been calling to target members of the media.
“Too many high-ranking public officials already threaten to arrest journalists,” their brief states. “Those officials can manipulate 8 U.S.C. § 1324 (a)(1)(A)(iv) against anyone who has ever reported on immigration matters, and use it as a pretext to harass, silence, or prosecute them for reporting on other matters (such as public corruption).” (Parentheses in original.)
The balance between immigration enforcement and First Amendment rights has been at the high court previously. In 2020, the court ruled in United States v. Sineneng-Smith — a case involving a scheme to get health care workers from the Philippines to apply for an outdated work-authorization program — but the justices managed to skip over the issue they’ll be deciding this term. The unanimous ruling written by the late Justice Ruth Bader Ginsberg reversed the Ninth Circuit ruling striking down the law but did not decide if the law itself was unconstitutional.
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