Does the federal law that prohibits encouraging or inducing unlawful immigration violate the First Amendment?

front view of supreme court building

The front entrance of the Supreme Court. (Katie Barlow)

For four years, Helaman Hansen falsely promised undocumented immigrants that they could, for a substantial fee, become U.S. citizens through “adult adoption.” Although Hansen persuaded more than 450 people to pay him for his services, the program was a ruse that would not lead to citizenship.

On Monday, in United States v. Hansen, the Supreme Court will consider whether 8 U.S.C. §1324(a)(1)(iv), the federal law that criminalizes “encouraging or inducing unlawful immigration,” violates the First Amendment’s guarantee of free of speech. The case will have potentially significant effects on immigration enforcement. But it may have an even bigger effect on First Amendment law, with significant implications for dissent, incitement, solicitation and aiding and abetting liability, and social media regulation.

In 2017, Hansen was convicted on federal charges, mostly involving mail and wire fraud, arising from his “adult adoption” scheme. But Hansen was also convicted on –two counts of encouraging or inducing noncitizens to reside in the United States after their visas expired. Those two noncitizens had lawfully entered the United States, but then overstayed their visas because Hansen assured them that participating in the adult adoption program made leaving the U.S. unnecessary. Hansen also employed one of the two to do odd jobs. While violating 8 U.S.C. §1324(a)(1)(iv) for any reason receives 5 years of imprisonment, because the jury found that Hansen had violated the law for financial gain, the court imposed the maximum sentence – 10 years for the “encouragement” counts, to run concurrently with a sentence of 20 years for the fraud counts.

On appeal, the U.S. Court of Appeals for the 9th Circuit held that Section 1324(a)(1)(iv) violates the First Amendment. It vacated Hansen’s convictions on those two counts only and remanded for resentencing.

The court of appeals analyzed the law under what is called the overbreadth doctrine, which allows a defendant to whom a law can be constitutionally applied to challenge it as facially unconstitutional (meaning the whole law should be struck down), if the law prohibits a substantial amount of speech protected by the First Amendment. The overbreadth doctrine, like vagueness, is animated by a concern about chilling protected speech. Broad laws may be selectively enforced, and the public may not know what is protected from the law by the First Amendment and what is not — so that the resulting uncertainty may chill protected speech.

The federal government came to the Supreme Court, which in December agreed to weigh in.

Defending the constitutionality of the law, the government’s central contention is that the statutory terms “encourages” and “induces” should be interpreted narrowly as meaning to “facilitate” or “solicit,”concepts with defined meanings in criminal law. Based on those meanings, the government argues, a defendant would not violate the law unless he met the standard for “aiding or abetting” or “soliciting” a noncitizen to unlawfully enter or reside in the United States. As the government observes, many ordinary criminal laws — such as those barring conspiracy, incitement, and solicitation — criminalize speech. Those sorts of laws, the government urges, are not ordinarily understood to prohibit abstract advocacy of lawbreaking, however, even when their literal language might encompass it. Moreover, the government maintains that laws prohibiting abetting or encouraging a criminal offense were well established at the Founding, meaning there is “no tenable argument that the original understanding of the First Amendment limited ‘statutes that penalize encouragements to specific crimes.’” The government warns that a broader understanding of “encourages or induces” would open those other laws to constitutional attack as well. At a minimum, it contends, the court should adopt the government’s interpretation to avoid the constitutional questions that would arise if the law was read in a broad, speech-restrictive manner.

The government then uses its interpretation to demonstrate that the law is not substantially overbroad relative to its legitimate sweep — the standard the overbreadth doctrine requires. Section 1324(a)(1)(A)(iv), the government argues, proscribes a substantial amount of non-speech conduct, such as selling fraudulent identification documents or leading noncitizens to the border. It is not enough under the overbreadth doctrine that there is some conceivable unconstitutional application, the government notes; instead, there must be a “realistic danger” that the law will harm protected speech.(This line of argument appears to be a response to the sorts of hypotheticals that are a centerpiece of Hansen’s brief, which the government urges are not covered by the law under its interpretation.)

The government also argues that the law’s overbreadth must be measured relative not only to the “encouraging and inducing” provision, but with the enhanced penalty provision that applies if the defendant committed the offense for financial gain. To the extent that the law reaches speech, the government argues, it only covers speech integral to illegal activity, which does not offend the First Amendment. At a minimum, it says, Hansen has failed to show the kind of substantial overbreadth to strike down the statute on its face.

Finally, the government criticizes the overbreadth doctrine generally as a departure from both the traditional rules favoring as-applied constitutional challenges and disfavoring third-party rights. To justify invalidating the statute entirely, the government asserts, Hansen would need to show that “the normal course of constitutional adjudication” can’t address chilling effects, which it says Hansen has failed to do.

For his part, Hansen argues that the statute is substantially overbroad in violation of the First Amendment because the plain meaning of its text extends to a plethora of ordinary interactions that the First Amendment protects. He argues that, for example, the law makes it a crime for:

  • A grandmother to say that she doesn’t want her undocumented grandchild to leave her
  • A doctor to advise a patient with an expiring visa that she needs medical treatment in the United States
  • A priest to inform a noncitizen parishioner about church child-care and pantry resources that would support her remaining after her visa expires; or
  • A lawyer to counsel an noncitizen who entered the country legally but no longer has a legal basis for being in the United States that she has the ability to become a lawful permanent resident if she does not leave the country

Hansen says these examples encourage a civil violation at most, because residing in the United States unlawfully is not a crime.

Hansen argues that the court’s overbreadth analysis should focus only on the provision that criminalizes “encourages or induces,” which was enacted in 1986 and doesn’t require any purpose.  The provision that enhanced the penalty for offenses committed for financial gain was added separately in 1996.

Next, Hansen argues that the government is wrong to equate “encouraging or inducing” with “aiding and abetting” and “solicitation.” Congress, he points out, removed the words “solicitation” and “assistance” from an earlier version of the law, and there is a separate federal law prohibiting soliciting or aiding and abetting certain crimes, including the law at issue here.

Hansen also contends that the interpretation the government now advances “bears no resemblance to the one it advocated at trial.” There, Hansen asserts, the government argued that the statute should be applied according to its plain meaning and opposed an instruction requiring intent, which Hansen says is “central to solicitation and aiding-and-abetting crimes.” And the jury was not instructed that “encourage” should be read as anything other than its ordinary meaning. For that reason, Hansen contends, even if the court adopts the government’s statutory interpretation, his conviction should be vacated and remanded for consideration under that construction.

Finally, Hansen asserts that the law’s ban on “encouragement” — without any requirement that the speaker specifically intended the listener to violate the law or that the violation was likely or imminent — goes beyond the speech the First Amendment does not protect under the categories of incitement, solicitation, or aiding and abetting. The government’s argument, he argues, would “turn on its head the long line of cases involving speech advocating illegal conduct.” Under that caselaw, the First Amendment shields speakers from liability unless their speech is “directed to inciting or producing imminent lawless action,” “likely to incite or produce such action,” and the speakers specifically intend that their listeners violate the law. Because the First Amendment exception for “speech integral to criminal conduct” has always been limited to criminal conduct, not civil violations, Hansen argues, “the government effectively seeks a new category of unprotected speech.”

This case has implications that go far beyond immigration enforcement. For one, the courts have never worked out the relationship between incitement (which requires intent, imminency, and likelihood), solicitation, or aiding-and-abetting liability (which aren’t covered by the First Amendment at all), and speech integral to criminal conduct (which, other than being about speech and crime, is fairly fuzzy in the caselaw). Might the court’s holding here weaken any of those standards? These issues may significantly alter the trajectory of First Amendment law with broad implications. For example, the court’s holding may affect the standard applicable to former President Donald Trump’s speech before the storming of the Capitol on January 6, were he to be indicted for incitement. 

This case may also intersect with two other high-profile cases now before the court: Google v. Gonzalez and Twitter v. Taamneh, both of which involve the scope of social media companies’ liability for terrorist speech on their platforms. If the court allows a broader constitutional sweep for liability in Hansen, it could affect those cases — and potentially the liability of social media companies not only for aiding-and-abetting crimes, but civil violations (such as defamation) too. We can only speculate, but I feel sure that the justices are also thinking about these implications.

Hansen may also offer us insight into this court’s approach to speech law. Will it continue an earlier court’s trend of adopting ever more speech-protective rules or chart a different course?

We’ll have to wait and see. The only wager I’ll make is that at argument we will hear many wild hypotheticals.

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