The U.S. Supreme Court's recent ruling in United States v. Hansen upholds a law that makes it a crime to “encourage” a person to remain in the country without authorization. The Court had two choices in this case: instruct Congress and all legislatures to use the words they actually mean (and normal people use) when they write laws; or force the public to accept—and try to comply with—criminal laws written in specialized language unknowable to most non-lawyers. Regrettably, the Court chose the latter

The main question in Hansen was whether a federal immigration law criminalizing speech that merely “encourages or induces” an undocumented immigrant to unlawfully reside in the United States unconstitutionally violates the First Amendment’s guarantee of free speech.

Earlier this year, EFF (along with Immigrants Rising, Defending Rights & Dissent, and Woodhull Freedom Foundation) filed a friend of the court brief in support of the defendant, Helaman Hansen. There, we urged the court to uphold the Ninth Circuit’s ruling, which found that the language in the law's section about encouragement is unconstitutionally overbroad because it threatens an enormous amount of protected online speech. This includes prohibiting, for example, “encouraging an undocumented immigrant to take shelter during a natural disaster, advising an undocumented immigrant about available social services,” or even providing noncitizens with Know Your Rights resources or certain other forms of legal advice. Our brief also asserted that the provision’s ambiguity further chills online speech because platforms, faced with the difficult task of drawing lines between protected speech and unlawful “encouragement,” are likely to simply remove the content rather than make a hard decision.

To the Court, “encourage” does not mean “encourage” in the same way that every non-lawyer who must comply with the law thinks it does

The Good: Narrowed Application of the Federal Criminal Law

In a 7-2 opinion authored by Justice Barrett, the Court unfortunately upheld the encouragement provision and ruled that the government can only criminalize speech where the defendant purposefully solicits or aids and abets specific unlawful acts.

In doing so, the Court significantly narrowed the extent to which this law criminalizes expressive speech. It imported not only the specialized legal meaning of the “encourages or induces” clause, but also the intent requirement traditionally associated with soliciting and facilitating, or aiding and abetting, criminal activity. Now, the law’s encouragement provision applies only to the intentional solicitation or facilitation of immigration law violations. That means it’s no longer illegal for a lawyer to inform noncitizens of their rights, for a family member to express a desire for their noncitizen relative to stay in the United States, or for an immigrant advocacy organization to direct undocumented people to online educational resources. But, while it’s great that this result narrows successful prosecutions under this particular law, it is still concerning that the intent standard is nowhere in the language of the law.  

The Bad: Broad Impact on First Amendment Doctrine

Regrettably, this decision also comes with disappointing implications for how the Supreme Court will treat future First Amendment challenges to statutes that similarly threaten to chill broad swaths of protected speech. As Justices Jackson and Sotomayor correctly note in their dissent, by “depart[ing] from ordinary principles of statutory interpretation,” the Court “avoids having to invalidate this statute under our well-established First Amendment overbreadth doctrine” and thus “subverts the speech-protective goals” of that constitutional doctrine. 

By rejecting the ordinary meanings of “encourage” and “induce,” the majority said that when those words are used in criminal laws, they bring with them the accumulated legal tradition and the “cluster of ideas” attached to each word. Rather than telling legislatures to use the word “solicit” when they want to criminalize solicitation, the Court goes out of its way—even resorting to digging through erstwhile legislative history—to import not only a technical legal meaning but also the intent requirement traditionally associated with solicitation into the clause “encourages or induces.” 

In effect, the Supreme Court upheld the law making it a federal crime to “encourage” illegal immigration because, to the Court, “encourage” does not mean “encourage” in the same way that every non-lawyer who must comply with the law thinks it does. By adopting specialized legal jargon over plain language definitions, the Court signals that it is not worried about this broad-reaching law’s chilling effect on speech. But for you? Good luck figuring out whether you are committing a crime without consulting a lawyer!

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