Supreme Court endorses criminalization of speech linked to illegal immigration

WASHINGTON (CN) — Creating a carve-out in the First Amendment, the Supreme Court sided Friday with the Biden administration in its effort to throw out protections on speech that encourage illegal immigration. 

“After concluding that this statute criminalizes immigration advocacy and other protected speech, the Ninth Circuit held it unconstitutionally overbroad under the First Amendment,” Justice Amy Coney Barrett wrote for a 7-2 majority. “That was error.” 

While the Ninth Circuit had found otherwise, Barrett found nothing wrong with a subsection of the Immigration and Nationality Act that makes it a felony to knowingly encourage or induce unlawful entry into the United States.

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

Helaman Hansen is the defendant in the underlying case, but it settles a question the justices skipped over three years prior in the case of Evelyn Sineneng-Smith, who had encouraged health care workers from the Philippines to apply for an outdated work authorization program. In a unanimous ruling by Justice Ruth Bader Ginsberg, the Supreme Court overturned a Ninth Circuit decision that had struck down the law criminalizing speech but stopped short of deciding the law's constitutionality. 

The government appealed to the high court again when the Ninth Circuit vacated the convictions of Hansen, who had defrauded nearly 500 people in an “adult adoption” scheme where migrants paid $10,000 a head to obtain U.S. citizenship.

During oral arguments in March, the Biden administration argued the Ninth Circuit violated the overbreadth doctrine in striking down Hansen’s convictions. The appeals court violated the traditional rules of as-applied constitutional challenges were violated, the government argued. 

“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,” U.S. Solicitor General Elizabeth Prelogar told the court in a brief. 

Hansen argued the law was too broad and would implicate too many people. 

First Amendment groups weighed in during the briefing in the case, worried a potential ruling could limit the free speech of journalists covering these issues. 

Barrett said Hansen made no argument that the First Amendment protects the speech in his scheme. Hansen’s argument is instead based on others’ speech. 

“He argues that clause (iv) punishes so much protected speech that it cannot be applied to anyone, including him,” the Trump appointee wrote. 

Overbreadth challenges — the term used to define these types of cases — are rare because of standing challenges. Barrett said to decide if this law is overbroad, the justices looked at whether Congress used terms referring to criminalize solicitation or instead terms that could be used in everyday conversation. 

“We hold that clause (iv) uses ‘encourages or induces’ in its specialized, criminal-law sense—that is, as incorporating common-law liability for solicitation and facilitation,” Barrett wrote. “In truth, the clash between definitions is not much of a contest.” 

Justice Ketanji Brown Jackson — joined by Sonia Sotomayor — dissented, finding the court read broad language as a narrow prohibition. 

“But the majority departs from ordinary principles of statutory interpretation to reach that result,” the Biden appointee wrote. “Specifically, it rewrites the provision’s text to include elements that Congress once adopted but later removed as part of its incremental expansion of this particular criminal law over the last century.” 

Instead of properly applying the overbreadth doctrine as Barrett describes, Jackson said the court instead undermines it. 

“Moreover, by acquiescing to the Government’s newly minted pitch to narrow this statute in order to save it, the majority undermines the goal of the overbreadth doctrine, which aims to keep overly broad statutes off the books in order to avoid chilling constitutionally protected speech,” Jackson wrote. 

In Jackson’s view, the statute is overbroad and threatens to violate the Constitution in a number of ways. 

“It would reach, for example, the grandmother who says she misses her noncitizen grandchild, leading the grandchild to move illegally to the United States,” Jackson wrote. “It would also apply to the doctor who informs a noncitizen patient that a necessary medical treatment is more readily available in the United States, influencing the patient to stay beyond the expiration of his visa to await treatment.” 

The American Civil Liberties Union Foundation, which represented Hansen, did not see the ruling as a complete loss. 

“As written by Congress, the law has left people wondering what they can safely say on the subject of immigration,” Esha Bhandari, deputy director of the ACLU’s Speech, Privacy, and Technology Project, said in a statement. “Now we expect the government to respect free speech rights and only enforce the law narrowly going forward.”

The Department of Justice did not respond to a request for comment on the ruling.

Follow @KelseyReichmann

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