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Supreme Court rules enticing illegal immigration isn’t protected speech

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Enticing illegal immigration isn’t protected free speech, the U.S. Supreme Court ruled.

In United States v Hansen, in a 7-2 vote, the court on Friday reversed and remanded the Ninth Circuit Court of Appeals decision, citing the arguments made by 25 Republican attorneys general in an amicus brief filed by the court.

Justice Amy Coney Barrett wrote for the majority and was joined by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Elena Kagan, Neil Gorsuch and Brett Kavanaugh. Thomas filed a concurring opinion. Justice Ketanji Brown Jackson filed a dissenting opinion joined by Justice Sonia Sotomayor.

At issue is whether the federal prohibition on “encouraging” or “inducing” unlawful immigration for commercial advantage or private financial gain violates the First Amendment of the U.S. Constitution. The court ruled it does not.

A California resident, Helaman Hansen, ran a “scam,” the Supreme Court ruled, profiting $2 million by soliciting and “advising” foreign nationals who were illegally in the U.S. on how to obtain U.S. citizenship. He was convicted and sentenced for violating federal law, including on two counts of encouraging or inducing illegal immigration for private financial gain under 8 U.S.C. § 1324(a)(1)(A)(iv) (the “encouragement provision”) and (B)(i).

The encouragement provision of 8 U.S.C. makes it a felony to “encourage[] or induce[] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard that such coming to, entry, or residence is or will be in violation of law.” Violating it carries a maximum penalty of five years in prison, which can be increased to a maximum of 10 years when the violation is committed “for the purpose of commercial advantage or private financial gain.”

“Helaman Hansen promised hundreds of noncitizens a path to U. S. citizenship through ‘adult adoption,’” the Supreme Court ruling states. “But that was a scam. Though there is no path to citizenship through ‘adult adoption,’ Hansen earned nearly $2 million from his scheme. The United States charged Hansen with, inter alia, violating 8 U. S. C. §1324(a)(1)(A)(iv), which forbids ‘encourag[ing] or induc[ing] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such [activity] is or will be in violation of law.’

“Hansen was convicted and moved to dismiss the clause (iv) charges on First Amendment overbreadth grounds. The District Court rejected Hansen’s argument, but the Ninth Circuit concluded that clause (iv) was unconstitutionally overbroad. “Held: Because §1324(a)(1)(A)(iv) forbids only the purposeful solicitation and facilitation of specific acts known to violate federal law, the clause is not unconstitutionally overbroad.”

In response to the ruling, Montana Attorney General Ashton Knudsen, who led a coalition of attorneys general in filing a brief with the court, said he was “glad to see the Supreme Court agree with our position and uphold the law.” They filed the brief because the “border crisis and illegal immigration are causing massive economic, social, and financial burdens on states across the country,” he said.

Joining Knudsen were the attorneys general of Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Mississippi, Missouri, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia and Wyoming.

They also filed the brief expressing concerns that the Ninth Circuit ruling “threatens widespread uncertainty in the states’ ability to enforce their criminal laws that use” the terms “encouraging” or “inducing.” Such laws govern solicitation, prostitution, and sexual abuse of children in Montana, for example, or capital felony or felony of the first degree and smuggling of persons, including concealing, harboring or shielding victims from detection, in Texas.

The ACLU, which co-represented Hansen, made an unconvincing argument that 8 U.S.C.’s encouragement provision violates the First Amendment “because it criminalizes a wide swathe of constitutionally protected speech.”

After the ruling, Esha Bhandari, deputy director of the ACLU’s Speech, Privacy, and Technology Project, said the court “drastically limited the encouragement provision to apply only to intentional solicitation or facilitation of immigration law violations. As written by Congress, the law has left people wondering what they can safely say on the subject of immigration. Now we expect the government to respect free speech rights and only enforce the law narrowly going forward.”

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