The Delicate Balance Between Immigration and Free Speech

By Gregory Purdy, Volume 22 Staff Writer

Introduction

With an ongoing and intensifying immigration crisis ongoing in our country, all aspects of our government in executives, legislators, and judges find themselves struggling to find the right answers. Finding the balance of limiting illegal immigration while protecting individuals’ rights and liberties has been a major spark for political and policy debates, but only marginal improvement has occurred. In June 2023, the Supreme Court attempted to limit illegal immigration by handing down their ruling in U.S. v. Hansen. This case revolved around an individual, Helaman Hansen, who was convicted of violating U.S. immigration law Section 1324(a)(1)(A)(iv) for “encouraging or inducing” noncitizens to enter the United States illegally. Hansen was accused of “deceiving immigrants in the United States illegally by promising them between 2012 and 2016 that they could gain American citizenship through an ‘adult adoption’ program operated by his Sacramento-based business, Americans Helping America Chamber of Commerce.”

The crux of the Hansen ruling turned on statutory interpretation of the words “encourage” and “induce.” The issue was whether the Court should interpret these words broadly in ordinary meaning or narrowly in technical meaning. Many people believe that the statute is overbroad, including Hansen’s attorney of course who stated that the statute has left the American people wondering what they can and cannot say on the subject of immigration. In coming to its decision, the majority, written by Justice Barrett, took a narrower view than the lower court by interpreting the provision to prohibit only the “intentional solicitation or facilitation of certain unlawful acts” and that the provision did not violate constitutional free speech protections. Therefore, Hansen’s conviction was legal.

The Hansen decision, with evident implications for constitutional free speech and the U.S. immigration crisis, compelled the court to seek a delicate balance between the two. However, the question remains did the court get it right without infringing on protected free speech?

A Win for Immigration Enforcement – The Positive View

In interpreting the statute more narrowly, the Court understood the meaning of “encourage” or “induce” to be technical and closely akin to solicitation or facilitation. Barrett explained that the court would continue to interpret this statute narrowly moving forward, stating that “solicitation involves urging an illegal action while facilitation somehow aids the perpetrator in his illegal deed.” Such a decision can be plainly stated as a win for stricter immigration regulation tightening up the language that is allowed in consultation with an undocumented immigrant. Proponents of the decision were wary that a siding with Hansen would have been a great blow to the government’s ability to regulate and enforce immigration laws. The wariness was embedded in the idea that such freedoms of encouragement of illegal immigrants would lead to a free-for-all, something that the current administration desperately wants to avoid.

By limiting this statute’s broadness, the court attempted to strike a middle ground between protecting free speech and protecting our borders. If the court continues to interpret this statute narrowly, many are hopeful that future rulings will not hinder free speech. While this narrow interpretation still involves the criminalization of words without subsequent actions, these words must be much more than “general expressions of opinion,” like certain words that would be closely connected to “planning and carrying out” the illegal encouragement or inducement. Such a hinderance on expressions of opinion would certainly infringe upon free speech protections and was a point of emphasis the Court attempted to avoid. In the end, the Court must interpret statutes based on what Congress intended, and the Court followed Congress’s legislative intent in the statute that citizens should not have free reign to encourage illegal immigration.

A Chill on Free Speech – The Negative View

A “chill” on protected free speech is the idea that certain laws, regulations, or policies implemented by the government could hinder free speech protections. Such a limit on speech, as experienced in Hansen, led to many free speech advocacy groups to file briefs supporting Hansen and citing worries of the actual limitations of this law. These groups are worried that the statute will not, in practice, be construed narrowly by the courts, therefore resulting in a large hampering on free speech. Specifically, there is a worry that individuals simply  encouraging undocumented immigrants to pursue social services or even publicly debating immigration policies, would result in criminal prosecution.

The question now is whether free speech should be restricted at the expense of the government’s attempt to limit illegal immigrant entries. In theory, the answer to this question lies in a difficult balancing act. The Court in Hansen has placed a significant amount of trust in our court system to apply this statute narrowly and avoid a widespread “chill” on protected free speech surrounding immigration. Unfortunately, as our court system becomes more and more politicized, this balancing act does not seem so cut and dry. There is certainly a possibility that certain circuits will allow their political motives to intertwine with their decisions, which is something free speech advocacy groups will be watching for with heightened scrutiny.

It is also important to consider the broader implications that Hansen might have on First Amendment protection. In general, there is a constitutional overbreadth doctrine that is intended to be applied to protect free speech. The court in Hansen seemed to be inclined to ignore this doctrine in pursuit of strengthening immigration protection. Such a decision could potentially lead to a “slippery slope” where any and all speech that advocates for violating laws, including civil laws, could be subjected to criminalization. This seems to toe the line on potentially criminalizing personal opinions, which is something the First Amendment adamantly attempts to protect.

Conclusion

In conclusion, there is potential that the Hansen decision has only muddied the waters by making it extremely difficult for the average person to figure out if they’ve violated the statute. While a potential improvement in our immigration crisis is encouraging, an uptick in criminal prosecutions over issues that are seemingly based in civil immigration law is certainly something the court system and government is looking to avoid. Simply put, this turns on our courts’ ability to narrowly enforce this statute to instances of evident solicitation or facilitation towards keeping undocumented immigrants in the United States. If the court cannot adequately uphold this narrow enforcement, then it certainly can be said that protected free speech will be in danger with a potential for broad sweeping First Amendment implications.