This post was written by intern Devin Sullivan.
Should it be a federal crime to encourage an undocumented immigrant to remain in the country? In a friend of the court brief filed today with the U.S. Supreme Court, we argue that such a prohibition is facially unconstitutional on First Amendment grounds that it would sweep up and prohibit constitutionally protected speech.
Our brief was filed in United States v. Hansen, a challenge to the Encouragement Provision in 8 U.S.C. § 1324(a)(1)(A)(iv), which makes it a federal crime to “encourage or induce” an undocumented immigrant to “reside” in the United States, if one knows that such “coming to, entry, or residence” in the U.S. will be in violation of the law. Effectively, the provision silences the speech of all U.S. persons who wish to support or cheer on others pursuing the American dream.
Filed on behalf of EFF, Immigrants Rising, Defending Rights & Dissent, and Woodhull Freedom Foundation, the brief supports defendant Helamand Hansen. Hansen is arguing that the Supreme Court should affirm a decision by the U.S. Federal Court of Appeals for the Ninth Circuit, which found that the Encouragement Provision violated the First Amendment under the overbreadth doctrine.
This principle, in First Amendment jurisprudence, applies when a regulation of speech sweeps too broadly and prohibits a substantial amount of protected as well as non-protected speech. According to the Ninth Circuit, the Encouragement Provision is unconstitutionally overbroad because it prohibits, for example, “encouraging an undocumented immigrant to take shelter during a natural disaster, advising an undocumented immigrant about available social services” or “providing certain legal advice to undocumented immigrants.”
We argue that the Ninth Circuit was co
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