Mr. Helaman Hansen defrauded would-be US citizens of their savings. He pretended to help them earn US citizenship and persuaded many to come to the states illegally and to overstay their visas. Can it be a crime, however, to tell others to break the law – or is that protected speech under the First Amendment? That was the question before the Supreme Court on Monday, March 27, as justices considered whether Mr. Hansen’s convictions for encouraging “or inducing an alien to come to, enter, or reside in the United States” should be overturned.
Hard Cases Make Bad Law
Hansen is a federal felon serving a 240-month sentence for twelve counts of mail fraud, three counts of wire fraud, and two counts of encouraging or inducing illegal immigration for private financial gain. He marketed a service falsely advising that an adult adoption program he had access to could provide a pathway to US citizenship. The lower court stated: “At least 471 victims participated in the Program, and each paid between $550 and $10,000.” An FBI witness testified Hansen made “more than $1.8 million in revenue” from the scheme.
Because of his numerous convictions, Mr. Hansen isn’t going anywhere anytime soon, no matter the outcome of United States v. Hansen. This case only involves his speech encouraging others to break the law. Considering how it may be applied in different circumstances, the ruling may be more critical for the rest of us. Can the federal government criminalize speech that encourages or induces illegal immigration, or does the First Amendment protect the speaker’s right to speak freely?
Justice Sonia Sotomayor was the panel’s most stalwart defender of free speech on the day. She said:
“And I thought there were only certain statutes that were immune to First Amendment challenges, obscenity, fighting words. Otherwise, everything else is subject to the First Amendment and strict scrutiny. So why should we uphold a statute that criminalizes words, makes the punishment five years, which is rather significant?”
Justice Sotomayor also said this statute stood alone in criminal law because it punished solicitation, or aiding and abetting, more severely than the underlying crime. She said, “It’s a first of a kind.” Under the statutes challenged, inducing a person to break our immigration laws for profit is a federal felony, while breaking the law itself is not. The lower court ruled the law was unconstitutional, applying the “overbreadth doctrine,” which says an overly broad statute may chill the speech of individuals, including those not before the court.
Overboard on Overbreadth?
The 9th Circuit ruling said: “We apply the overbreadth doctrine so that legitimate speech relating to immigration law shall not be chilled and foreclosed.” The Justices discussed the overbreadth issue, and Justice Neil Gorsuch said:
“[B]ut an overbreadth analysis, we’re supposed to ask – I don’t know what we’re supposed to ask, but something like; Is it impossible to apply the statute constitutionally or is it really, really almost unlikely it will ever be applied constitutionally?”
He asked Mr. Hansen’s attorney, ACLU Speech, Privacy, and Technology lawyer Esha Bhandari, “how do we struggle with this overbreadth? What – when is enough, enough?” She replied, “… the inquiry is simply, does the statute – even if you narrowly construe it, does the statute reach protective speech that people engage in. Is it realistic speech that they engage in every day frequently?”
Not many justices seemed interested in giving a full-throated defense of the statute or laws that criminalize speech. Justice Clarence Thomas, for instance, was left with asking whether the government was prosecuting many citizens for violating the law. Ms. Bhandari answered him indirectly, responding to Justice Sotomayor when she said:
“It’s not relevant that the government has chosen not to file actual prosecutions of protected speech. That’s never been required by this Court for First Amendment overbreadth analysis, again, for good reason, because a law, if it’s facially reaching protected speech, does not become more or less constitutional depending on the government’s prosecutorial choices.”
And
“It’s also relevant, however, that the government has ways of chilling speech simply by having the law on the books without filing actual prosecutions.”
The court is expected to rule on this case by their summer break.
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