Bloomberg Law
March 27, 2023, 6:02 PMUpdated: March 27, 2023, 9:09 PM

Justices Struggle to Balance Immigration Law, Free Speech (1)

Lydia Wheeler
Lydia Wheeler
Senior Reporter

The US Supreme Court appeared divided during oral argument on Monday over whether a law used to punish those who encourage illegal immigration violates the First Amendment.

The justices were weighing a case involving Helaman Hansen, who was convicted of two counts of encouraging or inducing unlawful immigration for private financial gain, in addition to mail and wire fraud. Hansen challenged the relevant law as a violation of his free speech rights.

The case has the potential to eliminate a tool the government said it uses to combat illegal immigration or create a new category of unprotected speech. Opponents argue a ruling reversing a US Court of Appeals for the Ninth Circuit decision striking down the law could put grandparents at risk of being prosecuted for telling their undocumented grandchild to remain in the country, or charities if they offer services.

Several members of the court’s conservative wing struggled with why it’s being asked now to rule that a statute on the books since 1952 is overly broad.

Justice Amy Coney Barrett called it unusual to have an overbreadth challenge to an old statute. She noted there’s no record that the law has chilled speech or that the government has prosecuted anyone for innocent, everyday statements.

“Are there overbreadth challenges that have succeeded in the past where we have this much data?” Barrett asked.

Hansen duped hundreds of undocumented immigrants into paying him thousands of dollars by promising a pathway to citizenship through his adult adoption program.

Justice Neil Gorsuch said it’s a little awkward that the court is worrying about other peoples’ speech when the law did not deter Hansen.

“I mean, he’s had no problem soliciting people here in this country and defrauding them to the tune of lots and lots of money,” Gorsuch said. “He has victimized these people, and it may be a poster child for a situation in which the underlying offense might be modest, but you might want to criminalize it because he’s taking advantage of very vulnerable people.”

Narrow Reading

The maximum sentence for encouraging or inducing illegal immigration is five years, but criminal defendants can get five additional years if they violate the law for financial gain, as Hansen was accused of doing.

The government argued that enhancement matters and that “encouraging and inducing” illegal immigration should be read narrowly as soliciting or aiding and abetting illegal immigration.

“Prohibitions on soliciting or facilitating both criminal and civil violations have long been common and have never been thought to raise a First Amendment problem,” said Brian Fletcher, principal deputy solicitor general at the Justice Department.

Fletcher said the First Amendment doesn’t protect speech that is intended to induce or commence specific illegal activities.

Justice Elena Kagan said the court doesn’t typically take the government for its word that it will only read a statute narrowly.

Hansen’s attorney, Esha Bhandariar, argued the government is asking the court to do Congress’ job and rewrite a statute to prohibit only solicitation or aiding and abetting.

“It’s critical that a statute that hits on speech draw clear lines when felony prosecution is at stake,” said Bhandari, deputy director of the Speech, Privacy, and Technology Project at the American Civil Liberties Union Foundation. “Congress did not do that here and Congress could do so if this court were to hold that this law simply doesn’t say what the government says.”

The court heard arguments over the same question in United States v. Sineneng-Smith in 2020, but a procedural issue in the case kept the justices from settling it.

Hansen’s case may end up going back to the Ninth Circuit. At trial, Hansen requested a jury instruction that would have required the government to prove he intended for undocumented immigrants to violate the law. The government fought against it, arguing the law could be read by its plain meaning, and ultimately prevailed.

“I think you probably do have a problem with the jury instructions,” said Justice Brett Kavanaugh. “Do you think we should remand and let the Ninth Circuit sort that out?”

Fletcher said that would be appropriate.

“What’s before you is an overbreadth challenge, and part of that, of course, is figuring out what the statute means,” he said. “Once you do that, we don’t have any objection at all to sending it back to the Ninth Circuit.”

Kavanaugh wasn’t the only one who seemed to be thinking about sending the case back to the appeals court. Justice Ketanji Brown Jackson signaled she was in asking Fletcher if the court should decide if there can be a criminal liability for remaining in the country illegally, which is a civil offense.

“Are you asking us to decide that here, or could the Ninth Circuit be tasked with looking into that when we return the case,” Jackson said before quickly correcting herself. “If we return the case?”

The case is United States v. Hansen, U.S., No. 22-179, argument 3/27/23.

(Updated with additional reporting.)

To contact the reporter on this story: Lydia Wheeler in Washington at

To contact the editors responsible for this story: John Crawley at; Keith Perine at

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