EFF is urging the U.S. Supreme Court to strike down a law that poses a serious threat to online speech by criminalizing speech that “encourages” unlawful immigration. EFF filed an amicus brief on behalf of itself and Immigrants Rising, the Internet Archive, and Daphne Keller.
The case, United States v. Sineneng-Smith, questions whether 8 U.S.C. § 1324(a)(1)(A)(iv) (“the Encouragement Provision”)—which makes it a felony to “encourage” an undocumented immigrant to enter or remain in the United States—violates the First Amendment. The accused, an immigration consultant charged under the Encouragement Provision, was convicted in the district court. However, the Ninth Circuit reversed her conviction, holding that the Encouragement Provision was facially unconstitutional. The court found that the statute was so overbroad that it would encompass speech ranging from “a loving grandmother who urges her grandson to overstay his visa” to a “post directed at undocumented individuals on social media” that encourages them to stay in the United States. As the court explained:
We do not think that any reasonable reading of the statute can exclude speech. To conclude otherwise, we would have to say that "encourage" does not mean encourage . . . At the very least, it is clear that the statute potentially criminalizes the simple words — spoken to a son, a wife, a parent, a friend, a neighbor, a coworker, a student, a client — "I encourage you to stay here."
As our amicus brief explains, the Internet is full of protected speech that encourages immigrants to remain in the country, whether those immigrants are here lawfully or unlawfully. Social media users share posts that declare #HomeIsHere in support of undocumented youth. Services organizations direct immigrants to financial, educational, and health resources. Advocacy groups publish “know your rights” guides explaining that immigrants have the right to remain silent when questioned by immigration officers. Twitter, Reddit, and Facebook have each taken to their own platforms to express support for immigrants and oppose President Trump’s immigration policies.
All of this speech is exactly the kind of political advocacy that the First Amendment is designed to protect—but all of this speech may be criminalized under the Encouragement Provision.
And it is not only the speakers themselves who may be impacted by this law. Intermediaries may be chilled from even hosting this type of speech, for fear of risking criminal prosecution either as the publishers of the speech, or as aiders and abettors. Although federal law often protects online intermediaries from liability for users’ speech that the intermediaries host, intermediaries receive no immunity from federal criminal enforcement.
When faced with the risk that the speech they are transmitting may be illegal, intermediaries commonly choose to broadly restrict all speech about a topic rather than take on the impossible task of sifting through an enormous volume of user content to try to parse out the specific speech that’s prohibited. We’ve seen this exact dynamic play out before—most recently when Congress outlawed online advertisements for sex work and platforms responded with sweeping prohibitions on adult content far beyond what the law had banned.
The Encouragement Provision raises the specter that platforms seeking to minimize their own criminal exposure under the statute may censor all expression about immigration wholesale. Perhaps even more troublingly, platforms may remove all speech favoring an immigration policy based on principles of inclusion and decriminalization—because such expression is likeliest to violate the statute—while allowing speech favoring more restrictive and punitive immigration policies to remain online.
The Constitution protects our right to comment on and advocate for and against government policies. Immigration is one of the most hotly debated issues of our times, and the Supreme Court should strike down this dangerous and unlawful statute.