Supreme Court investigates law prohibiting encouraging illegal immigration

WASHINGTON — Supreme Court justices debated on Monday whether a federal law that criminalizes incitement to illegal immigration is an unconstitutional violation of free speech rights.

The justices heard the Biden administration’s appeal of a ruling that struck down the law, saying it violated free speech protections under the Constitution’s First Amendment.

Several court members questioned whether the law was too broad, meaning it could criminalize protected speech, although it is unclear whether there is a majority among the nine justices to overturn it.

The case concerns Helaman Hansen, who from 2012 to 2016 ran a scheme in which he charged up to $10,000 for an alleged pathway to citizenship. He claimed that undocumented immigrants could become citizens through an adult adoption service and persuaded 471 people to take part.

At his trial in 2017, he was found guilty of two counts of violating a federal law prohibiting encouraging or inducing illegal immigration for private financial gain. He was also found guilty of 12 counts of mail fraud and three counts of wire fraud, convictions that are not at issue in the Supreme Court case.

He was sentenced to 20 years in prison.

The 9th United States Circuit Court of Appeals, based in San Francisco, struck down the law in February 2022, saying it could lead to someone being convicted simply for saying, “I encourage you to reside in the USA”.

During closing arguments, some justices echoed those concerns, with Judge Brett Kavanaugh questioning whether anyone could be convicted for helping an undocumented immigrant with food and shelter.

Along the same lines, Judge Sonia Sotomayor said the law “criminalizes immigration-related words.”

Judge Elena Kagan also said a “world of communications” is unfolding every day involving undocumented immigrants, their families and professional advisers like lawyers who could be criminalized under the law.

Other judges seemed more sympathetic to the Justice Department, which argued that there was no suggestion in Hansen’s specific case that his conviction was based on protected speech.

Judge Neil Gorsuch said it was “a bit embarrassing” that there was no evidence that Hansen’s free speech rights had been violated, and he appeared to suggest Hansen was not a sympathetic pleader.

“He takes advantage of vulnerable people,” Gorsuch said.

The Supreme Court in 2020 heard a similar case but overruled a ruling on the law’s constitutionality.