The not-so-hypothetical risk of suppression at the heart of the Hansen case

As we recently previewed, the U.S. Supreme Court heard oral arguments last week in United States v. Hansen, a case challenging the constitutionality of a federal law barring “encouraging or inducing” unlawful immigration. At the argument, the nine justices grappled with the question of whether the statute can be squared with the First Amendment, and Esha Bhandari, counsel for respondent Helaman Hansen, referenced the Reporters Committee’s friend-of-the-court brief in the case numerous times.

As we’ve talked about before, this case comes to the Court in an unusual posture, one that is reserved for First Amendment cases. This posture — known as an “overbreadth challenge” — allows parties to argue that, even though a statute may not be unconstitutional as applied in their case, it covers a broad enough range of other constitutionally protected speech and conduct that it cannot remain on the books. Here, the parties concede that Hansen’s conduct — operating an “adult adoption” program that fraudulently promised participants a path to U.S. citizenship — is not protected by the First Amendment. (Hansen’s conviction for fraud will stand regardless of the outcome of the Supreme Court case.) But since the provision barring “encouraging or inducing” unlawful immigration could chill a wide range of important speech, Hansen is challenging it as unconstitutional.

Because of the overbreadth challenge, the oral argument involved lots of discussion of hypotheticals and not much talk about the facts of Hansen’s case. As the argument went on, some of the justices seemed to grow frustrated with the speculation. Both lawyers were repeatedly asked whether the statute had actually been applied in an unconstitutional way before, or whether that prospect was purely imaginary. And, in response, Bhandari kept coming back to the Reporters Committee’s friend-of-the-court brief, which highlighted discussions between Customs and Border Protection officials about using the provision to prosecute journalists covering the border. Those discussions were featured in documents obtained as a part of a Freedom of Information Act lawsuit filed by the Reporters Committee and NBC 7 San Diego.

The origins of the FOIA case date back to March 2019. That’s when NBC 7 San Diego broke the news that journalists covering the border had drawn the attention of the Department of Homeland Security. Leaked documents showed that federal officials created a secret database in connection with the Department’s monitoring of a large migrant “caravan.” That database included 10 journalists reporting on the border, in addition to attorneys and immigration activists.

The leaked documents gave no indication that the journalists in the database had done anything other than gather and report news about the caravan, a subject of high public interest. After the story of this database generated tremendous media attention and outrage, the Reporters Committee and NBC 7 filed FOIA requests for information related to the database, and after the federal agencies “improperly withheld” many of the requested records, the Reporters Committee and NBC 7 sued.

As a result of the lawsuit, the Department began to produce records about its investigation into journalists. These records make clear that the Department found even the most routine forms of newsgathering suspicious, including “capturing images and documenting the event” during attempted border crossings. One email exchange reveals that CBP officials believed their monitoring of the media would make a “good start toward a case against them hopefully,” aiming to uncover evidence of “criminal aiding and abetting by members of the media.” (If you’d like to see all of the records the Reporters Committee and NBC 7 have obtained through their FOIA lawsuit to date, check out the news station’s most recent reporting on the case.)

After the NBC 7 story broke, a coalition of civil liberties groups wrote to CBP expressing their concern about the database. In response, CBP said it was “investigating possible violations under 8 U.S. Code § 1324, which pertains to any person who encourages or induces an alien to enter the United States.” This is the provision being challenged in the Hansen case. So, to summarize, CBP acknowledged in this letter that it was actively investigating the possibility that journalists and others swept up in the monitoring program violated this law by “encouraging or inducing” people to stay in the U.S. illegally. And the records obtained in our FOIA lawsuit show that the Department characterized routine newsgathering as suspicious and sought to build a criminal case against the journalists they were investigating.

All of this is to say: The risk that this statute will be used to suppress constitutionally protected speech is far from “fanciful” (the government’s words). The records from our lawsuit — in addition to the CBP’s own public statements — illustrate that the statute has already been deployed in a way that could chill lawful and valuable newsgathering at the southern border. We hope the Supreme Court keeps that in mind when evaluating the statute’s constitutionality.

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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 and Press Freedom Project Fellow Emily Hockett.