Supreme Court Issues Decision on UNITED STATES v. HANSEN

 United States v. Hansen, 599 U.S. ___ (2023), was a United States Supreme Court case about whether a federal law that criminalizes encouraging or inducing illegal immigration is unconstitutionally overbroad, violating the First Amendment right to free speech.

 

ISSUE

Are 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i), which ban encouraging or inducing unlawful immigration for commercial advantage or private financial gain, unconstitutionally overbroad in violation of the First Amendment?

Respondent 

 

Facts 

 

Helaman Hansen started his own immigration advising service and began to charge individuals for his services in October of 2012. During the course of the program, Hansen would provide advice to undocumented immigrants on how to obtain United States citizenship. A key component of the program, at Hansen’s instruction, was that citizenship would be granted to undocumented immigrants if they were adopted by a United States citizen and completed some other tasks. However, immigrants cannot become U.S. citizens through adult adoption, and no immigrants had become citizens through Hansen’s program. Nonetheless, Hansen continued to charge individuals for this advice. In addition, Hansen encouraged at least two undocumented individuals to overstay their visas. Hansen provided his services to roughly 471 undocumented immigrants between October 2012 and January of 2016, with the immigrants’ costs ranging from $550 to $10,000 each and profits for Hansen exceeding one million dollars.

The Supreme Court granted certiorari on December 9, 2022. Oral arguments were held on March 27, 2023. On June 23, 2023, the Supreme Court upheld the law in a 7–2 vote, holding that it did not violate the First Amendment right to free speech.


STATUTORY INTERPRETATION OF § 1324(A)(1)(A)(IV)

The Government;’s Position 

The United States argues that 8 U.S.C. 1324(a)(1)(A)(iv), which criminalizes “encourag[ing] or induc[ing] an alien to come to, enter, or reside in the United States,” does not violate the First Amendment because it only bars the solicitation or facilitation of illegal acts. The United States notes that solicitation and facilitation of illegal acts is not protected by the First Amendment, because it is speech “integral to criminal conduct.” The United States maintains that, in the criminal law context, “encourage” and “induce” are terms of art, which have been historically understood to require active encouragement of specific acts. The United States specifically notes that “encourage” and “induce” are used in many state and federal statues to define clearly illegal crimes like solicitation, facilitation, and aiding and abetting. The United States further points out that Congress included “assist” and “solicit” in earlier versions of subsection (A)(iv). Thus, the United States reasons, the intent of Congress was to criminalize intentional solicitation and facilitation of illegal immigration, not speech addressed to the general public. The United States posits this interpretation is supported by subsection (A)(iv)’s requirement that defendants knew of or recklessly disregarded the fact that an immigrant’s entrance or continued presence in the U.S. was illegal. The United States asserts that this dovetails with the intent required for criminal accomplices. Finally, the United States argues reading § 1324 broadly would violate the principle of constitutional avoidance, under which states courts should, when possible, read statutes narrowly to avoid constitutional issues. Thus, the United States asserts, the Court should avoid raising First Amendment problems by interpreting subsection (A)(iv) as a statute about solicitation and facilitation, which are not protected by the First Amendment.

Hansen’s Position

In opposition, Hansen alleges that § 1324(a)(1)(A)(iv) is not a solicitation or facilitation statute, because it sweeps broader than solicitation or facilitation and unconstitutionally encompasses protected First Amendment speech. Hansen emphasizes that, under Brandenburg v. Ohio, the First Amendment protects individuals who advocate lawbreaking in the abstract: the only exception is when speech is geared towards and likely to produce “imminent” illegal action. Hansen asserts that the United States cherrypicked its definitions of “encourage” and “induce,” and ignored the words’ obvious meanings. Hansen alleges that “encourage” and “induce,” by definition, include speech that merely influences people and makes it more likely they will stay in the United States. Thus, Hansen posits, subsection (A)(iv) criminalizes clearly protected speech, such as doctors telling patients that staying in the United States will make treatment easier. Hansen states that, when governments use “encourage” and “induce” to define other crimes, they usually pair them with other verbs to limit their meaning and provide context; by contrast, because subsection (A)(iv) uses “encourage” and “induce” alone, the words must be interpreted on their face. Hansen stresses that subsection (A)(iv) only requires knowledge or reckless disregard of an individual’s status, not knowledge or intent that an individual will break the law in the near future. Thus, Hansen cautions, § 1324 extends beyond Brandenburg’s exception, which requires both intent and imminence. Hansen further emphasizes that Congress chose to remove the intent requirement of “willfully or knowingly” encouraging or inducing from the statute in 1986—thus, the Court should not add back in a requirement Congress explicitly removed. Finally, Hansen states that constitutional avoidance only applies when there are two equally valid interpretations of a statute: because subsection (A)(iv) is clearly not a solicitation or facilitation statute, constitutional avoidance is inapplicable.

The Respondent’s attorneys’ brief phrased the question presented to be:

Whether the First Amendment permits criminal
punishment of speech that merely encourages a
noncitizen to remain in the United States, without
any requirement of intent to further illegal conduct,
and when remaining in the United States is itself not
a crime. Whether the First Amendment permits criminal
punishment of speech that merely encourages a
noncitizen to remain in the United States, without
any requirement of intent to further illegal conduct,
and when remaining in the United States is itself not
a crime. 

The Respondent (Hansen) through his attorneys, raises valid points in the Respondent’s Brief.  The strongest argument is that there are many forms of speech and many reasonable statements that we could all imagine being said by someone who does not intend to break the law , which could be considered criminal under the statute .  They provide several examples in their brief.

The words “encourage” and “induce” are not
limited in any way. Under the statute’s plain
meaning, all of the following are prohibited:

• A priest telling a noncitizen congregant who
has overstayed her visa that the church will
provide charitable assistance, which might
have the effect of encouraging her to remain;

• A U.S. citizen telling her undocumented
spouse that he is needed in the country to
provide financial support for the family;

• A public safety official advising
undocumented members of the community
to shelter in place during a natural disaster;

• A coach advising an undocumented student
athlete that if she travels with her team for
an international competition she will likely
not be able to return to the United States;

• A college counselor advising an
undocumented student that they can obtain
a private scholarship to pay for dormitory
fees and other expenses to fund their life as
a college student in the United States;

• A doctor providing medical advice to a
noncitizen with a visa that will shortly
expire that a particular medical treatment
is more readily available in the United
States than elsewhere, leading that
noncitizen to overstay the visa to wait for
treatment;

• A lawyer providing advice to a client that
overstaying his visa is not a bar to adjusting
his status to that of a lawful permanent
resident if he marries a U.S. citizen.

OPINION OF THE COURT

Writing for the court, Justice Amy Coney Barrett interpreted the key words “encourages or induces” narrowly. The government had argued that those words were terms of art, meaning criminal law concepts of solicitation and facilitation (or aiding and abetting). Hansen and the court of appeals below, on the other hand, had interpreted the words in their ordinary meaning, which would potentially include a broad range of protected speech. The court agreed with the government that Congress used the words “encourages or induces” in the specialized sense. This implicitly includes the requirement of intent (mens rea) traditionally associated with solicitation and facilitation. The court added that the canon of constitutional avoidance favored the narrower reading if it was at least “fairly possible”. Under this reading, various hypothetical examples of overbroad applications would not meet the elements of the crime.

The court applied the overbreadth doctrine as expressed in United States v. Williams (2008): a law is unconstitutional if it “prohibits a substantial amount of protected speech” relative to its “plainly legitimate sweep”. Here, the law’s “plainly legitimate sweep” covers nonexpressive conduct, for example smuggling, not implicating the freedom of speech at all. The only kind of speech it might cover is limited to “speech integral to unlawful conduct”, and such speech is an exception to the First Amendment.

Lastly, the court acknowledged but did not rule on the “‘mismatch’ theory” advanced by Hansen. Under that theory, the First Amendment does not allow criminalizing speech that solicits or facilitates a civil violation, and illegal immigration is often only a civil violation, not a crime. The court held that, regardless of whether that argument is correct, the ratio of invalid to valid applications of the law would not be high enough for the court to strike it down as overbroad.

DISSENT

This dissent seemed strange to me, but what do I know. 

Justice Ketanji Brown Jackson dissented, joined by Justice Sonia Sotomayor, accusing the majority of rewriting the text. Jackson argued that, although “encourages” or “induces” often appear together with other terms like soliciting or facilitating or aiding-and-abetting, that does not mean they can be conflated or incorporate the same implications. She also disagreed with the majority’s analysis of the history of the statute. The text had been revised several times by Congress and formerly included the words “solicit” and “assist”. Jackson argued that the removal of those words was a significant change in meaning; the majority argued that Congress was only streamlining unnecessary language rather than making a sweeping expansion to the law. Jackson further argued that use of constitutional avoidance was especially inappropriate in the context of an overbreadth challenge.

 

Thomas Concurrence 

Justice Clarence Thomas joined the majority in full, but, because he is Justice Thomas, he just had to write a separate concurrence. He reiterated his general opposition to the doctrine of overbreadth, similar to his previous solo opinions in United States v. Sineneng-Smith (2020) and Americans for Prosperity Foundation v. Bonta (2021).

The Supreme Court issued their decision on June 23, 2023. You can find the full decision here or click the button below to get a PDF of the Court’s full written decision. 

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