Written by Kelly Chauvin, Summer 2023 Legal Intern for the American Immigration Council

Last month, the U.S. Supreme Court held that a section of immigration law that forbids “encourag[ing] or induc[ing]” a non-citizen to enter or reside in the United States did not violate the U.S. Constitution’s protection of free speech guaranteed in the First Amendment. The Court’s decision, however, places certain limits on the statute’s application.

The case of U.S. v. Hansen involved the prosecution of a fraudster whom the government charged with violating the “encouragement and inducement” statute after he scammed immigrants by promising them a path to U.S. citizenship through adult adoptions. Unfortunately for the victims, this path does not exist.

In fighting the charges, the defendant argued the “encourage or induce” subsection was unconstitutional because in its effort to regulate unprotected speech—like criminal conduct—the law risked infringing on protected speech.

All people in the United States hold rights guaranteed by the First Amendment to the U.S. Constitution, including the protection of freedom of speech. Only a small number of exceptions to those protections apply, including fraud and speech integral to criminal conduct, which the government may regulate. The specific exceptions are considered unprotected speech.

Many immigrant advocacy organizations agreed with this argument, saying the statute could impact attorneys, doctors, pastors, and even law enforcement officers who may have to look past individuals’ immigration status to provide legal advice, assist in medical emergencies, or even solve crimes. Each of those situations might involve someone “encouraging” an undocumented immigrant to “reside in the United States,” even if temporarily—such as to apply for an immigration benefit, recover from an injury, or to testify at a criminal trial as a witness.

These concerns about the law’s reach stem from fears about how the law could be applied in a notoriously broken system. As undocumented individuals are often criminalized for their mere presence, laws like this one provide additional vehicles for political actors to threaten mixed status families. And, as noted in the amicus brief filed on behalf of religious organizations in this case, U.S. Customs and Border Protection has a watchlist of individuals who assist migrants.

Ultimately, the Supreme Court was not convinced by these arguments. In its decision rejecting the challenge, the Court continued to restrict the type of statutes found to be “overbroad” under the First Amendment. Like in the 2008 case of U.S. v. Williams, the Court found that a statute is overbroad if it prohibits a substantial amount of protected speech in pursuit of a legitimate purpose. This interpretation marked a departure from previous cases holding that even the possibility of chilling protected speech was sufficient to overturn a criminal statute.

In the Hansen case, the Court justified upholding the constitutionality of the law by clarifying that the terms “encourage or induce” require intentional conduct, a narrower reading of the terms than the government had previously argued at the lower court. For example, the Court’s opinion noted that criminal solicitation is the intentional encouragement of an unlawful act, not just any encouragement. And “facilitation” requires the wrongdoer to intend to further a crime.  In other words, the Court acknowledged that “encourages or induces” inherently requires a certain level of intent.

In narrowing the definition of “encourages or induces,” the Court dismissed advocates’ concern that the law may apply to protected speech, arguing that such cases would be rare. In support of upholding the constitutionality of the law, the Court champions prosecutorial discretion as a solution, where prosecutors choose whether to charge an individual or dismiss a case and purportedly only the worst offenders are prosecuted.

But as Justice Jackson wrote in the dissenting opinion, “it makes little sense for the number of unconstitutional prosecutions to be the litmus test for whether speech is being chilled by a facially overbroad statute. The number of people who have not exercised their right to speak out of fear of prosecution is, quite frankly, unknowable.”

Despite the Court’s assurances, Justice Jackson’s concerns remain unaddressed. Additional concerns arise about how the law will be applied in the future. As such, the “encouragement or inducement” law continues to be a tool with the potential to further victimize undocumented immigrants in the United States and the communities that support them.