Published on: Friday, June 23, 2023

SCOTUS Rejects First Amendment Challenge to Inducing Illegal Immigration

This morning, in United States v. Hansen, No. 22-179 (June 23, 2023), a divided 7-to-2 Supreme Court rejected a First Amendment overbreadth challenge to a federal law that prohibits “encouraging” immigrants to remain unlawfully in the United States.  Justice Barret delivered the opinion of the Court,  joined by Chief Justice Roberts, and Justices Thomas, Alito, Kagan, Gorsuch and Kavanaugh, holding because 8 U.S.C. §1324(a)(1)(A)(iv) forbids only the purposeful solicitation and facilitation of specific acts known to violate federal law, the clause is not unconstitutionally overbroad.  Justice Thomas filed a concurring opinion.  Justice Jackson filed a dissenting opinion, joined by Justice Sotomayor.

Justice Barret’s majority opinion starts like this:

A federal law prohibits “encourag[ing] or induc[ing]” illegal immigration. 8 U. S. C. §1324(a)(1)(A)(iv). After concluding that this statute criminalizes immigration advocacy and other protected speech, the Ninth Circuit held it unconstitutionally overbroad under the First Amendment. That was error. Properly interpreted, this provision forbids only the intentional solicitation or facilitation of certain unlawful acts. It does not “prohibi[t] a substantial amount of protected speech”—let alone enough to justify throwing out the law’s “plainly legitimate sweep.” United States v. Williams, 553 U. S. 285, 292 (2008). We reverse.

Justice Thomas’ concurring opinion joined the Majority’s in full, but he wrote separately to “emphasize how far afield the facial overbreadth doctrine has carried the Judiciary from its constitutional role.”

Justice Jackson’s lengthy dissent concludes with these words:

The majority nevertheless derides the fears of Hansen and his amici as an overimaginative “parad[e]” of “horribles.” Ante, at 18. But what may seem “fanciful” to this Court at great remove, ante, at 5, might well prove to be a significant obstacle for those on the ground who operate daily in the shadow of the law. The “gravity” of the encouragement provision’s chilling effect is “underscored by the filings of . . . amici curiae in support of” Hansen—including briefs from lawyers, immigration advocacy organizations, religious and other charitable organizations, journalists, local governments, and nonprofit policy institutions from across the ideological spectrum. Americans for Prosperity Foundation v. Bonta, 594 U. S. ___, ___ (2021) (slip op., at 17).

The substantial concerns that amici from such diverse walks of life raise illustrate that the “deterrent effect feared by” Hansen and his amici “is real and pervasive.” Id., at ___ (slip op., at 18). Moreover, at the end of the day, those fears reflect a determination to view enacted statutes as serious business, and, essentially, to take Congress at its word. This Court should have done the same.

As written, the encouragement provision is overbroad. Therefore, it should have been deemed facially unconstitutional and invalid under the First Amendment, as the Ninth Circuit held.

The Hansen opinion is available here. Briefing on the merits is available on the Court's docket here