The Supreme Court on Friday upheld a provision under federal criminal law aimed at punishing people who encourage illegal immigration, ruling that it should not be struck down over free speech concerns.
In a 7-2 opinion written by Justice Amy Coney Barrett, the court overturned a lower court ruling that had found the provision was unconstitutionally overbroad under the First Amendment because it covered too many commonplace statements.
Barrett wrote that the provision, which makes it a felony if someone “encourages or induces” a person to violate federal immigration law, does not prohibit enough speech to justify throwing it out.
“Properly interpreted, this provision forbids only the intentional solicitation or facilitation of certain unlawful acts,” Barrett wrote.
The U.S. appealed a ruling from the U.S. Court of Appeals for the 9th Circuit in the prosecution of Helaman Hansen, who was prosecuted for violations of the law at issue, as well as mail and wire fraud.
The government said Hansen operated a group called Americans Helping America Chamber of Commerce between 2012 and 2016 and falsely told undocumented immigrants they could obtain citizenship through adult adoption. More than 400 people participated in the program and Hansen’s organization collected more than $1.8 million, the government said.
Hansen argued in an appeal that the provision would let the government prosecute speech about immigration that is otherwise protected by the First Amendment. The 9th Circuit ruled in Hansen’s favor, finding the provision “overbroad and unconstitutional.”
But Barrett, writing for the majority, found that Hansen put forward a “string of hypotheticals” all based on the expansive meanings of the words “encourage” and “induce.”
The provision does not have the scope claimed by Hansen, “so it does not produce the horribles he parades,” Barrett wrote, and the “ratio of unlawful-to-lawful applications is not lopsided enough” to justify invalidating the law.
“In other words, Hansen asks us to throw out too much of the good based on a speculative shot at the bad,” the court ruled.
Speech that’s aimed at bringing about unlawful action does not have social value and is not protected, Barrett wrote. “We have applied this principle many times, including to the promotion of a particular piece of contraband,” she added.
Justice Ketanji Brown Jackson, in a dissenting opinion joined by Justice Sonia Sotomayor, wrote that the majority undermined the goal of the doctrine that aimed to keep “overly broad statutes off the books in order to avoid chilling constitutionally protected speech.”
“The encouragement provision is overbroad. Therefore, it should have been deemed facially unconstitutional and invalid under the First Amendment, as the Ninth Circuit held,” Jackson wrote.
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