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Liberal justices balk at criminalization of certain speech linked to illegal immigration

Liberal justices balk at criminalization of certain speech linked to illegal immigration

A 1st Amendment roadblock could stymy the prosecution of people who encourage unlawful entry into the U.S

  • The government said the criminalization of encouraging illegal immigration dates back over a century.
    Paul Ingram/TucsonSentinel.comThe government said the criminalization of encouraging illegal immigration dates back over a century.

The Supreme Court’s review of a federal law criminalizing certain speech related to illegal immigration drew disapproval Monday from the court’s liberal wing. 

“We’re criminalizing words related to immigration,” Justice Sonia Sotomayor said. 

Sotomayor was outspoken during oral arguments, questioning how the government prosecutors would distinguish between legitimate culprits — scams targeting vulnerable migrants — and the commonplace discussions that happen in households across the nation. One hypothetical the Obama appointee posed concerned a noncitizen grandmother and her son with U.S. citizenship. Sotomayor said the son could be prosecuted under the law if he suggested he wanted his mother to stay in the country for his children. 

“People have to know what they can talk about,” Sotomayor said. 

The law under review by the justices makes it a crime to encourage unlawful immigration into the U.S., but its potential First Amendment implications have fired up press freedom groups. Citing surveillance of reporters and activists following the 2018 migrant caravans from Central America, advocates claim the law has been used to chill First Amendment speech. 

Justice Ketanji Brown Jackson focused Monday on what lawmakers intended when shaping the law, noting that Congress stripped the statute of language that the government relied on in its prosecution of these cases. Justice Elena Kagan expressed similar concerns about the wide breadth of individuals who could have their speech criminalized under the law and questioned where the line should be drawn. 

The government leaned on its prosecution record to argue that First Amendment protections were not being violated, but Jackson questioned if the record reflected that reality. Jackson said it would be hard to know by only looking at what cases the government has brought to know if the law had chilled other speech by just the threat of prosecution. 

Justice Amy Coney Barrett appeared to think otherwise. The Trump appointee noted the statute’s long history and limited prosecution record. The government’s assertion that there is limited case law to support widespread First Amendment violations appeared to sway the court’s majority, but it was unclear if the justices would fully embrace its reading of the statute. 

The government said the criminalization of encouraging illegal immigration dates back over a century. The Immigration and Nationality Act first criminalized willfully or knowingly encouraging unlawful entry into the U.S. with an anti-inducement provision. Congress then modified that provision into a statute in the Immigration Reform and Control Act of 1986, criminalizing anyone who encouraged or induced illegal immigration knowing it violates U.S. law. 

Three years ago, the court reviewed the same question in a case stemming from a scheme tricking health care workers from the Philippines into applying for an outdated work-authorization program. The court ruled unanimously in United States v. Sineneng-Smith without reaching the central question in the case, which pitted immigration enforcement against First Amendment rights. 

Now the justices have returned in an attempt to settle the issue. For $10,000, Helaman Hansen claimed he could get migrants U.S. citizenship through “adult adoption.” Hansen ran this scheme for four years, scamming almost 500 people. 

The government tacked an additional charge onto allegations of mail and wire fraud: encouraging illegal immigration for private financial gain. Hansen was found guilty on all counts and sentenced to 20 years in prison and two years of parole. 

Following a pause for the court’s review of Sineneng-Smith, the Ninth Circuit vacated Hansen’s convictions. The appeals court said the federal law criminalizing speech encouraging illegal immigration was overbroad and unconstitutional. The justices then took up the case in December at the government's request. 

The Justice Department encouraged the high court to reverse the Ninth Circuit’s ruling because it says the government never intended for the law to be interpreted in the way the appeals court understood it. Principal Deputy Solicitor General Brian Fletcher told the court that the text and history of the statute support its narrower reading of the law. Fletcher said prosecutions under the law are required to meet the high bar of aiding and abetting. 

Attorneys representing Hansen argued that the government’s arguments proved the statute was unconstitutional. Esha Bhandari, an attorney with the ACLU representing Hansen, said the justices should shy away from creating another category of unprotected speech.

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