The Supreme Court on Friday upheld a law that makes it illegal to encourage illegal immigration, ruling that it does not stifle First Amendment speech.
The 7-2 decision is a victory for enforcement advocates and preserves a key tool prosecutors use to go after smugglers and other fraudsters who prey on naive migrants.
Immigration activists had argued the law was too broad, and could be used to snare charities working to ease the plight of immigrants, or even family members who allow a relative to remain with them even though the person is here illegally. In legal terms, their claim is what’s known as an “overbreadth” challenge.
The court said those kinds of worries may be real, but said that’s not a reason to strike down the entire law because it also captures some clearly criminal conduct as well.
“Hansen asks us to throw out too much of the good based on a speculative shot at the bad. This is not the stuff of overbreadth,” wrote Justice Amy Coney Barrett.
The case stemmed from the 2017 conviction of Helaman Hansen, who falsely told immigrants without documentation that he could get them on the path to legal status through adult adoption.
He charged up to $10,000 apiece, making more than $1.8 million over the course of the scheme, but failed to deliver since there is no such thing as an adult adoption citizenship program.
Hansen was convicted on fraud charges, and also under the smuggling charge, which applies to someone who “encourages or induces” illegal immigration, particularly for financial gain.
But the 9th U.S. Circuit Court of Appeals ruled the smuggling law’s language was too broad to survive constitutional scrutiny, reasoning that it snared everyday comments that would be protected by the First Amendment, such as one family member urging another who’s in the country illegally to remain here.
The appeals court overturned the smuggling conviction, ruling that the law was so broad that it would apply to a number of cases of basic First Amendment speech, including simply telling an immigrant to remain in the U.S. illegally.
Justice Barrett, writing for the court’s majority, disagreed. She said that the terms are being used in a “specialized” sense of criminal law, similar to other crimes of solicitation or facilitation of an illegal act.
“‘Encourage’ and ‘induce’ have well-established legal meanings,” she said.
In dissent, Justice Ketanji Brown Jackson said the majority was straining the limits of definitions in order not to strike down the law.
She said there are real-life areas where groups may be reluctant to exercise free speech rights. She pointed to religious organizations that resettle immigrants who are in the U.S. illegally, and that received a document preservation letter from a House committee investigating whether the groups were harboring, transporting or encouraging illegal immigration.
“Again, this kind of letter invoking the language of the encouragement provision can plainly chill speech, even though it is not a prosecution,” she wrote in her dissent, which was joined by Justice Sonia Sotomayor.
The case is U.S. v. Hansen.
Hansen is already serving his sentence for the fraud convictions.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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