At the Supreme Court, when is immigration advice a crime? The Supreme Court heard arguments Monday in a case about whether a federal law that prohibits inducing unlawful immigration violates the First Amendment.


Immigration fraud case brings tough First Amendment questions to the Supreme Court

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The U.S. Supreme Court heard arguments today in an important case testing the limits of the First Amendment. A federal law makes it a crime to encourage or induce illegal immigration, but there's a question whether that encouragement actually amounts to protected free speech. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: Look at the Supreme Court's history, and you will see a lot of cases in which odious defendants bring tough First Amendment questions to the court. Today's case was one of those. The defendant is Helaman Hansen, who conned 471 noncitizens into believing they could obtain U.S. citizenship through adult adoption. By enrolling these noncitizens in this nonexistent program, Hansen defrauded these people of more than $1.8 million. In 2017, a jury convicted him on 15 counts of mail and wire fraud, for which he was sentenced to 20 years in prison. But it also found him guilty of two counts of encouraging or inducing these noncitizens to remain in the United States. And it is those two counts that were the focus of today's argument.

The issue before the court is whether a federal law making it a crime to induce unlawful immigration sweeps up a substantial amount of speech that's protected by the First Amendment. Defending the conviction, Deputy Solicitor General Brian Fletcher argued that if the statute is construed narrowly, it is constitutional.


BRIAN FLETCHER: The First Amendment does not protect speech that is intended to induce or commence specific illegal activities.

TOTENBERG: The justices had a lot of questions. Here, for instance, is Justice Kavanaugh.


BRETT KAVANAUGH: What do you say to the charitable organizations that say, even under your narrowing construction, there's still going to be a chill or a threat of prosecution for them for providing food and shelter and aid?

TOTENBERG: Justice Sotomayor followed up.


SONIA SOTOMAYOR: We do know that the Customs Department made a list of all of the people - religious entities, the lawyers and others - who were providing services to immigrants at the border and was saying that they intended to rely on this statute to prosecute them.

TOTENBERG: Justice Kagan had more questions.


ELENA KAGAN: What happens to all the cases where - it could be a lawyer; it could be a doctor; it could be a neighbor; it could be a friend; it could be a teacher; it could be anybody - says to a noncitizen, I really think you should stay?

TOTENBERG: Fletcher acknowledged that when family members urge someone to stay, that is the hardest case. He said there's no way to deal with all the variables that could come up, prompting this from Justice Sotomayor.


SOTOMAYOR: So why should we uphold this statute that criminalizes words? That's what we're doing with this statute. It's a first of a kind.

TOTENBERG: ACLU lawyer Esha Bhandari picked up that thread, arguing on behalf of the defendant. Unless the court clips the wings of this statute, she said...


ESHA BHANDARI: Congress and the states will be free, without any First Amendment scrutiny, to criminalize speech soliciting violations of the vast range of administrative and regulatory laws that govern us today, from mask and vaccine mandates to parking ordinances.

TOTENBERG: But she too faced some tough hypotheticals, like this one from Justice Alito. What about someone who encourages a person who's intellectually disabled to commit suicide? Bhandari replied that the government has an interest in protecting the vulnerable, and if a statute were narrowly drawn, it could survive. Justice Gorsuch asked how her client's rights are being violated because, under just about any standard of intent, he would be convicted. Bhandari acknowledged that her client had defrauded many people and would go to jail for 20 years, but she said the challenge here is to the statute as a whole and how it could inhibit speech about almost anything.

Nina Totenberg, NPR News, Washington.

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