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Under 8 U.S.C. § 1324(a)(1)(A)(iv), a person is prohibited from encouraging or inducing a noncitizen to enter or remain in the United States when doing so would be in violation of the law. The law is a felony and carries a penalty of up to five years’ imprisonment. Helaman Hansen was charged with violating this statute among others, and moved to dismiss this charge on grounds that the law is facially overbroad by penalizing protected speech in violation of the First Amendment. Hansen’s attorneys argued that the statute would punish the author of an op-ed criticizing the immigration system, or a minister who welcomes undocumented people into the congregation and expresses the community’s love and support. The trial court rejected Hansen’s argument and found him guilty, but the Ninth Circuit Court of Appeals reversed and ruled that the statutory provision is facially overbroad because it criminalizes speech such as encouraging an undocumented immigrant to take shelter during a natural disaster, advising an undocumented immigrant about available social services, telling a tourist that she is unlikely to face serious consequences if she overstays her visa, or providing certain legal advice to undocumented immigrants.
On appeal, however, the U.S. Supreme Court rejected the Ninth Circuit’s reasoning, and indicated that the statute should be interpreted narrowly in such a way as to avoid any such constitutional violations. The Court noted that the statute could penalize acts of smuggling noncitizens, providing counterfeit immigration documents or fake social security numbers, or making fraudulent representations to take advantage of noncitizens for personal financial gain. While Rutherford and FIRE had argued that the Court should have gone further and struck down the statute for being viewpoint-discriminatory and chilling protected speech, the majority noted that nothing in its ruling prevents a future defendant from challenging the statute as being unconstitutional as applied to him in violation of the First Amendment.
Erin Glenn Busby, Lisa R. Eskow, and Michael F. Sturley with the University of Texas School of Law’s Supreme Court Clinic advanced the arguments in the amicus brief.
The Rutherford Institute, a nonprofit civil liberties organization, defends individuals whose constitutional rights have been threatened or violated and educates the public on a wide spectrum of issues affecting their freedoms.
The amicus brief and the Supreme Court's opinion in United States v. Hansen are available at www.rutherford.org.
Source: https://tinyurl.com/5df7vbd6
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