Supreme Court takes up First Amendment immigration case

Last week, the U.S. Supreme Court announced it would hear United States v. Hansen, a case about whether a law that prohibits a kind of solicitation violates the First Amendment. Specifically, the law bars knowingly “encourag[ing] or induc[ing]” someone to “come to, enter, or reside in” the United States illegally (nicknamed the “encouragement provision”). The Court heard the same issue two years ago — in United States v. Sineneng-Smith — but decided that case on procedural grounds and did not reach the First Amendment question.

The government has charged Helaman Hansen, who allegedly persuaded hundreds of people to join and pay for an adult adoption program that he falsely promised would lead to citizenship, with violating the encouragement provision. Hansen was tried and convicted, but the U.S. Court of Appeals for the Ninth Circuit reversed his conviction on the encouragement provision charge because it held that the law criminalized speech and conduct protected by the First Amendment and was thus unconstitutional.

The key question in this case is how broadly or narrowly to construe the terms “encourage” and “induce.” The government argues that they should be read narrowly as legal terms of art, prohibiting only direct complicity or something close to it. Hansen’s attorneys, on the other hand, contend that the plain meaning of the words in the law cover much more protected expression than unprotected criminal activity. And in a friend-of-the-court brief in Sineneng-Smith, a group of immigrants rights advocates submitted that, even when narrowly drawn, the encouragement provision could criminalize run-of-the-mill legal advice immigration lawyers routinely give their clients.

Read broadly, the statute surely covers First Amendment-protected activity. As the Electronic Frontier Foundation pointed out in its friend-of-the-court brief in Sineneng-Smith, it could criminalize things like a know-your-rights training or a social media post expressing solidarity with recipients of the government’s Deferred Action for Childhood Arrivals, or DACA, program. It could also cover an op-ed encouraging people living in the United States without legal status to stay in the country for a long enough period of time to apply for adjustment of status.

(A quick aside: That Hansen himself is not being prosecuted for this kind of activity is of no consequence, because of a unique First Amendment doctrine called overbreadth, which allows courts to consider hypothetically unconstitutional applications of a statute, even when not presented in the case at hand. If there are too many such applications relative to the statute’s legitimate sweep, the law is unconstitutional in its entirety.)

The EFF brief also raised the possibility that platforms hosting third-party content could be chilled from hosting statements that could be read as “encouraging” immigration law violations. And this possibility is far from remote. Platforms have made clear that they will moderate content with a heavy hand to avoid liability under even narrowly drawn laws.

So, even if the Supreme Court adopts the government’s proposed narrow construction of the encouragement provision, internet platforms may opt to remove content that would constitute encouragement under only the broader reading to avoid possible liability. This kind of moderation will chill candid discussion of immigration issues online, which will make reporting on immigration issues more challenging.

Though it hasn’t yet gotten much attention, this case is one to watch. We’ll keep you posted.

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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with RCFP Staff Attorney Grayson Clary and Technology Press Freedom Project Fellow Emily Hockett.