Tuesday, June 6, 2023 | Back issues
Courthouse News Service Courthouse News Service

Press rights in crosshairs as justices tackle those who aid illegal immigration

Federal immigration policies are the focus of Supreme Court arguments on Monday, this time with the First Amendment on the line.

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. 


Now a scam involving “adult adoption” will attempt to decide the issue. Helaman Hansen was charging migrants up to $10,000 on the pledge that he could obtain U.S. citizenship for them through adult adoption. For the four years Hansen ran this scheme, he tricked almost 500 people. 

Along with mail and wire fraud, the government also charged Hansen with encouraging illegal immigration for private financial gain. Found guilty on all counts, Hansen was sentenced to 20 years in prison followed by two years of parole. 

Hansen’s case was put on pause while the justices reviewed Sineneng-Smith. The Ninth Circuit then used the justices’ ruling to vacate Hansen’s convictions, finding the federal law he was charged under was overbroad and unconstitutional. The justices added the case to their docket in December. 

The Biden administration invited the high court's intervention, saying the Ninth Circuit was wrong to strike down the law on First Amendment grounds. Challenging the use of the overbreadth doctrine, the government says the appeals court departed from the traditional rules of as-applied constitutional challenges and against invoking the rights of third parties. 

“The statute does not proscribe the conduct described in the Ninth Circuit’s parade of horribles, and the court erred in granting First Amendment protection for defendants like respondent, who seek to profit by causing unlawful immigration,” Prelogar wrote. 

Prelogar says the supposed chill of speech under the law is a hypothetical scenario. 

“The Ninth Circuit did not identify any realistic danger of chilling protected speech, or even any actual prosecutions of such speech, but instead struck down the statute based on hypothetical scenarios that the statute would not encompass,” Prelogar wrote. 

Press freedom groups dispute the government’s claim that First Amendment concerns are hypothetical, citing the surveillance of journalists covering the migrant caravans.

“Beyond ‘fanciful hypotheticals,’ the ‘real-world conduct’ U.S. agents exemplifies the unconstitutional and dangerous overbreadth of 8 U.S.C. § 1324 (a)(1)(A)(iv),” the groups wrote. 

Hansen attempts to show the broad reach of the law by giving the justices examples of people who could be prosecuted for their speech. 

“This statute makes it a crime for a grandmother to say she doesn’t want her undocumented grandchild to leave her, a doctor to advise her patient with an expiring student visa that the patient needs medical treatment provided in the United States, a priest to inform a noncitizen parishioner whose employment authorization is ending about church child-care and pantry resources that would support her remaining, and a lawyer to counsel an out-of-status noncitizen that she has the ability to become a lawful permanent resident if she does not leave the country,” Carolyn Wiggin, a California public defender representing Hansen, wrote

Without requiring specific intent by the speaker, Hansen’s attorneys allege, the law implicates too many parties. Hansen also pushes back against the government's argument that an exception for speech integral to criminal conduct will protect First Amendment rights. 

“There is no historical or doctrinal support for expanding that category to permit criminal punishment of speech that encourages no crime at all,” Wiggin wrote. 

Criminal defense lawyers argue the court should rule in favor of Hansen — not only on First Amendment grounds but also because the law violates the due process clause’s void-for-vagueness doctrine. The broad language of the law is a problem in the context of legal representation, the lawyers claim, because attorneys and their staff interact with individuals that cannot be encouraged to remain in the U.S. under the law. 

While the government argues its immigration enforcement efforts will be hampered by the court ruling against it in this case, the criminal defense attorneys say the use of the statute is rare. 

“The statute is not often prosecuted,” the criminal defense lawyers told the court in an amicus brief. “When it is, it almost always accompanies other charges that more clearly and specifically cover the prohibited conduct — as in the present case. Holding Subsection (iv) unconstitutional does not impede enforcement of immigration laws.” 

Categories: Appeals Government National

Read the Top 8

Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.