This post was written by intern Devin Sullivan.
Should it be a federal crime to encourage an undocumented immigrant to remain in the country? In a friend of the court brief filed today with the U.S. Supreme Court, we argue that such a prohibition is facially unconstitutional on First Amendment grounds that it would sweep up and prohibit constitutionally protected speech.
Our brief was filed in United States v. Hansen, a challenge to the Encouragement Provision in 8 U.S.C. § 1324(a)(1)(A)(iv), which makes it a federal crime to “encourage or induce” an undocumented immigrant to “reside” in the United States, if one knows that such “coming to, entry, or residence” in the U.S. will be in violation of the law. Effectively, the provision silences the speech of all U.S. persons who wish to support or cheer on others pursuing the American dream.
Filed on behalf of EFF, Immigrants Rising, Defending Rights & Dissent, and Woodhull Freedom Foundation, the brief supports defendant Helamand Hansen. Hansen is arguing that the Supreme Court should affirm a decision by the U.S. Federal Court of Appeals for the Ninth Circuit, which found that the Encouragement Provision violated the First Amendment under the overbreadth doctrine.
This principle, in First Amendment jurisprudence, applies when a regulation of speech sweeps too broadly and prohibits a substantial amount of protected as well as non-protected speech. According to the Ninth Circuit, the Encouragement Provision is unconstitutionally overbroad because it prohibits, for example, “encouraging an undocumented immigrant to take shelter during a natural disaster, advising an undocumented immigrant about available social services” or “providing certain legal advice to undocumented immigrants.”
We argue that the Ninth Circuit was correct, emphasizing the online speech rights of hundreds of immigration advocacy and services organizations which the Encouragement Provision threatens. For example, Informed Immigrant, which also filed a brief supporting Hansen, “maintains a Know Your Rights section in its online resource library with a wide range of information for undocumented immigrants and their families, including information about their rights inside and outside their homes, what to do if someone you know is arrested, how to prepare your family in the event of an immigration raid, and guidance for finding a lawyer.” If the Encouragement Provision is upheld, this type of speech, and any similar speech that emboldens undocumented immigrants online, will be silenced.
We further emphasize in the brief that protected online speech directed to undocumented immigrants is especially vulnerable to the Encouragement Provision’s vagaries because online speakers rely on numerous intermediaries that don’t want to risk violating the statute. All online speakers rely on intermediaries like domain name registers, web hosts, and social media platforms. To avoid the risk of the Encouragement Provision’s criminal penalty and the burden of having to defend even meritless charges, intermediaries will likely censor users’ speech if it so much as approaches illegality.
In our brief, we argue that when platforms face the threat of criminal penalties, “this inevitably results in the heckler’s veto, whereby any user can effectively censor another user by notifying the intermediary that the other user’s speech is unlawful, regardless of the merits of that notice.” This means that, if the Encouragement Provision is upheld, the speech of countless immigrants and immigrant rights advocates on the internet will be chilled.
United States v. Hansen is set for oral arguments on March 23, 2023. Several years ago, in United States v. Sineneng-Smith, the U.S. Supreme Court declined to rule on this very same First Amendment issue, finding that the defendant in that case had not properly raised it. We hope that this time, the U.S. Supreme Court takes the opportunity to recognize the free speech rights of many individuals on an issue so highly contested in political debate.
For the brief: https://www.eff.org/document/us-v-hansen-eff-brief