The Supreme Court in a 7-2 ruling on Friday upheld that a federal law prohibiting encouraging or inducing illegal immigration does not violate the First Amendment, reversing a Ninth Circuit decision that ruled the language of the law was unconstitutionally overbroad.
Justice Amy Coney Barrett wrote the majority 7-2 decision, finding that the Ninth Circuit was wrong to rule that a federal law criminalizing the practice of encouraging illegal immigration was unconstitutionally overbroad and thus could not be applied to anyone.
Properly interpreted, this provision forbids only the intentional solicitation or facilitation of certain unlawful acts. It does not “prohibi[t] a substantial amount of protected speech”—let alone enough to justify throwing out the law’s “plainly legitimate sweep.”
Section 1324(a)(1)(A)(iv) reaches no further than the purposeful solicitation and facilitation of specific acts known to violate federal law. So understood, the statute does not “prohibi[t] a substantial amount of protected speech” relative to its “plainly legitimate sweep.”
In 2017, Helaman Hansen was convicted for operating a multi-million dollar fraud scheme from 2012 to 2016 where he defrauded more than 450 foreign nationals, many living temporarily in the U.S. on visas, out of nearly $2 million by promising them a pathway to naturalized American citizenship if they paid him thousands of dollars to arrange “adult adoptions.”
Hansen’s scheme convinced the foreign nationals that they could secure naturalized American citizenship if an American citizen legally adopted them — a maneuver that Hansen promised to arrange for them if they paid him a fee.
One such couple from Mexico gave Hansen $9,000 to help them, while a Fiji national paid him $4,500 in the hopes of becoming a naturalized American citizen. When Hansen did not follow up on the promises he made, he falsely told the foreign nationals that since they were in his adult adoption program, federal immigration officials could not arrest or deport them.
As a result, Hansen was convicted of 12 counts of mail fraud, three counts of wire fraud, and two counts of encouraging and inducing illegal immigration for private financial gain.
Hansen sought to have his conviction for encouraging illegal immigration dismissed under First Amendment overbreadth grounds. The district court rejected Hansen’s argument and sentenced him to 20 years in federal prison.
From there, Hansen took his case to the Ninth Circuit after the appellate court had recently ruled in a separate case that the law was unconstitutionally overbroad, though that judgment was quickly vacated by the Supreme Court.
The Ninth Circuit, in Hansen’s case, again found that the law was unconstitutionally overbroad and therefore could not apply to him.
In reversing the Ninth Circuit’s judgment and remanding the case, Barrett, joined by Chief Justice Roberts as well as Justices Thomas, Alito, Kagan, Gorsuch, and Kavanaugh, writes:
The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.” Wisely, Hansen does not claim that the First Amendment protects the communications for which he was prosecuted. Instead, he raises an overbreadth challenge: He argues that clause (iv) punishes so much protected speech that it cannot be applied to anyone, including him.
We have justified this doctrine on the ground that it provides breathing room for free expression. Overbroad laws “may deter or ‘chill’ constitutionally protected speech,” and if would-be speakers remain silent, society will lose their contributions to the “marketplace of ideas.”
If the challenger demonstrates that the statute “prohibits a substantial amount of protected speech” relative to its “plainly legitimate sweep,” then society’s interest in free expression outweighs its interest in the statute’s lawful applications, and a court will hold the law facially invalid.
Criminal solicitation is the intentional encouragement of an unlawful act. Facilitation— also called aiding and abetting — is the provision of assistance to a wrongdoer with the intent to further an offense’s commission.
We hold that clause (iv) uses “encourages or induces” in its specialized, criminal-law sense — that is, as incorporating common-law liability for solicitation and facilitation … and when Congress “borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word.”
Thomas also filed a concurring opinion, while Justice Jackson filed a dissenting opinion, joined by Justice Sotomayor.
The case is U.S. v. Hansen, No. 22–179 in the Supreme Court of the United States.
John Binder is a reporter for Breitbart News. Email him at firstname.lastname@example.org. Follow him on Twitter here.