In United States v. Hansen, 599 U.S. ____ (2023), the U.S. Supreme Court upheld the conviction of Helaman Hansen who had been found guilty under U.S. Code § 1324 (a)(1)(A)(iv), which forbids “encourag[ing] or induc[ing] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such [activity] is or will be in violation of law.”
The ruling overturned the 9th U.S. Circuit Court of Appeal that had found the law was unconstitutionally overbroad under the First Amendment, applying to permissible speech as well as to speech that facilitated a crime. There was little doubt that Hansen’s actions fell into the latter category since he had set up a phony scheme of adult adoption, which he promised would gain citizenship to aliens who paid him to arrange such adoptions in exchange for significant amounts of money. He gained about $2 million from approximately 450 people.
Justice Amy Coney Barrett wrote the majority opinion of the Court, which was joined by Chief Justice John Roberts Jr., and Justices ClarenceThomas, Samuel Alito, Elena Kagan, Neil Gorsuch, and Brent Kavanaugh.
Court rejects view that law prohibits all speech encouraging illegal immigration
Hansen had not claimed that the First Amendment protected his own communications, which clearly involved illegal fraud. Instead, he had contended that the law was so broad that it should not be applied to anyone.
Noting that overbreadth challenges were unusual in that they raised the interests of third parties, she said that such challenges were permitted only in cases where laws might chill the exercise of protected speech. The overbreadth doctrine constitutes “’strong medicine’ that is not to be ‘casually employed,’” she said.
“To justify facial invalidation, a law’s unconstitutional applications must be realistic, not fanciful, and their number must be substantially disproportionate to the statute’s lawful sweep,” the ruling said.
Law’s context supports that criminal activity must be involved
In examining the statute, Barrett observed that criminal facilitation is often classified as “aiding and abetting” an illegal act, which is commonly described as encouraging or inducing such actions. She believed that this criminal law usage of the terms “encourage” and “induce” was widespread when Congress passed law in 1885 with the word “encourage” and when it added “induce” in 1917. Although Barrett acknowledged that the terms could have broader meaning, which might prohibit even on op-ed piece, the words at issue were qualified by the fact that they were part of a criminal statute focusing on criminal solicitation and facilitation, noting that when words could have more than one meaning, their meaning could be determined by context.
She rejected Hansen’s argument that Congress widened the meaning of the statute through alterations that dropped words like “assist” or “solicit.”
“Hansen believes these changes dramatically broadened the scope of clause (iv)’s prohibition on encouragement, but accepting that argument would require the Court to assume that Congress took a circuitous route to convey a sweeping — and constitutionally dubious — message. The better understanding is that Congress simply streamlined the previous statutory language”
She also thought the context of the law, and its common law origins, further indicated that it required the necessary “mens rea [knowledge of wrongdoing] for solicitation and facilitation.” Even when unstated, this was a necessary component of a criminal conviction.
Barrett noted that the law included such activities as smuggling, counterfeiting immigration papers, issuing fraudulent Social Security numbers, and the like that did not involve any First Amendment speech concerns. By contrast, despite his parade of “horribles,” Hansen could not point to any actual prosecutions that had been pursued under the law that would implicate the First Amendment, she said, and hypotheticals could be dealt with if they ever came to court instead of now administering the “strong medicine” of overbreadth.
Justice Thomas thinks overbreadth doctrine gives too much power to courts
While agreeing fully with the decision, Justice Thomas issued a concurring opinion in which he questioned whether there was any constitutional basis for the overbreadth doctrine. Quoting Broadrick v. Oklahoma (1973), he feared that, contrary to the desires of the American founders, the doctrine simply “offers a license for federal courts to act as ‘roving commissions assigned to pass judgement on the validity of the Nation’s laws,’” much like the Council of Revision that delegates to the Constitutional Convention of 1787 had rejected. He believed the doctrine departed from the doctrine that the courts should not involve themselves in abstract or hypothetical cases.
Justice Jackson: Ruling diminishes Congress’s incentive to draft narrowly tailored laws
Justice Ketanji Brown Jackson authored a dissenting opinion joined by Justice Sonya Sotomayor. Jackson thought that the court had simply patched or retrofitted a congressional law that was poorly worded to be constitutional, which she thought was the responsibility of Congress. On its face, she thought the law could apply to all sorts of activities that would be protected by the First Amendment and that congressional changes widening the potential meaning of the original statute could not be ignored.
Brown saw no evidence that the congressional changes were designed to streamline the law rather than to widen its application. “If this Court is willing to redline Congress’s work to save it from unconstitutionality, it ‘sharply diminish[es] Congress’s incentive to draft a narrowly tailored law in the first place,’” she said, citing the Supreme Court’s decision in United States v. Stevens (2010).
She further objected that in the trial phase of the case, the government had argued against adding jury instructions that would have “added elements not found in the text of the statute itself” but had reversed course during appeals. Moreover, she said that the Customs and Border Protection (CBP) had relied on the law to create a “watchlist” that included speakers and journalists who were simply reporting on immigration law and that members of Congress had used the law to warn religious groups that were attempting to help undocumented immigrants. Such actions suggested that Hansen’s interpretation of the law was not as fanciful as the majority opinion had suggested.
It seems relatively clear that neither the majority nor the dissenting justices thought that the statute should apply to advocacy connected to immigration or its reform. Both sides also thought that congressional intent should apply, but the majority was willing to interpret the law narrowly while the dissenters feared that the actual language, if left in place, might still lead to a chilling effect on legitimate speech.
John Vile is professor of political science and dean of the Honors College at Middle Tennessee State University. This article was published June 26, 2023.