SCOTUS Holds Law Making It Illegal To ‘Encourage Or Induce’ Illegal Immigration Does Not Violate First Amendment

SCOTUS Holds Law Making It Illegal To ‘Encourage Or Induce’ Illegal Immigration Does Not Violate First Amendment

Katelynn Richardson on June 23, 2023

The Supreme Court upheld a law that makes it a crime to “encourage or induce” illegal immigration, rejecting the argument that it violates the First Amendment.

The case, United States v. Hansen, stems from Helaman Hansen’s 2017 conviction for running a program advertising a pathway to citizenship for undocumented immigrants through “adult adoption,” which earned him more $1.8 million between 2012 and 2016. Though it affirmed Hansen’s convictions on mail and wire fraud charges, the Ninth Circuit held that the law behind his two counts of encouraging or inducing non-citizens to reside in the United States for financial gain was “overbroad and unconstitutional,” covering “a substantial amount of speech protected by the First Amendment.”

Justice Amy Coney Barrett wrote in the majority opinion, which was joined by Chief Justice John Roberts, Justices Clarence Thomas, Samuel Alito, Elena Kagan, Neil Gorsuch and Brett Kavanaugh, that the Ninth Circuit was in “error” when it held that the law unconstitutionally criminalizes immigration advocacy and protected speech.

“Properly interpreted, this provision forbids only the intentional solicitation or facilitation of certain unlawful acts,” Barrett wrote. “It does not ‘prohibi[t] a substantial amount of protected speech’—let alone enough to justify throwing out the law’s ‘plainly legitimate sweep.’”

Justice Ketanji Brown Jackson filed a dissent, which Justice Sonia Sotomayor joined, arguing that “the majority departs from ordinary principles of statutory interpretation” to uphold the law.

“[O]n its face, the encouragement provision’s use of the terms ‘encourage’ and ‘induce’ seems to encompass any and all speech that merely persuades, influences, or inspires a noncitizen to come to, enter, or reside in this country in violation of law,” Jackson wrote. “If speech of this nature is, in fact, sufficient to trigger potential prosecution under this statute, the provision would put all manner of protected speech in the Government’s prosecutorial crosshairs.”

The U.S. government told the justices during oral arguments in March that the words “encourage or induce” should be interpreted narrowly as “aiding and abetting,” noting that the law had never been applied as broadly as the Ninth Circuit suggested it would be it in the 70 years it has been on the books.