ARGUMENT ANALYSIS

Justices divided on the constitutionality of the federal law that bans “encouraging” immigrants to remain unlawfully in the United States

Both oral advocates faced fairly cold receptions on Monday morning in United States v. Hansen when the Supreme Court heard argument on whether 8 U.S.C. § 1324(a)(1)(iv), the federal law that criminalizes “encouraging or inducing” an immigrant to come or remain in the United States unlawfully, violates the First Amendment’s guarantee of freedom of speech.  

The argument also shed more light on the newer justices’ views on the freedom of speech. The newly reconfigured Court appears less strongly speech-protective than its recent predecessors — and perhaps interested in making big moves to constrain or even do away with the overbreadth doctrine. That doctrine allows a defendant to whom a law can be constitutionally applied to nonetheless challenge it as unconstitutional if the law makes a substantial amount of protected speech illegal, so that uncertainty about the scope of the law may chill protected speech.

The argument unfolded in many ways as expected. The government argued that “encourage or induce” should be read narrowly to mean to aid and abet or solicit, including an intent requirement, and the court peppered Principal Deputy Solicitor General Brian Fletcher with hypotheticals he sought to avoid. The government retreated to an even narrower position than it staked out in its briefs and conceded that it does defend the law if “encourage” is interpreted broadly. By conceding early that the law was likely unconstitutionally overbroad if read by its plain meaning and that the case would have to be remanded no matter the outcome, however, Fletcher provided the court with more time to analyze the scope of the law’s overbreadth under the government’s interpretation and question the advisability of the overbreadth doctrine itself.

The justices first questioned Fletcher on how to interpret the law. Justice Sonia Sotomayor appeared the most skeptical of the government’s construction. She asked Fletcher, “[E]xactly how [do] you want us to rewrite the statute?”

Justice Ketanji Brown Jackson also inquired how the court should deal with Congress’s earlier deletion of “certain words that I now hear you wanting us to read back into this statute.” Fletcher nonetheless appeared to persuade a majority of the court that the government’s interpretation was plausible, at least during his time at the lectern.

The court’s questions then focused on what protected speech might nonetheless be prohibited by the act. Justice Elena Kagan twice pressed Fletcher on if and why ordinary scenarios would be crimes — such as a friend or neighbor encouraging an immigrant to remain in the U.S., knowing full well that doing so would be unlawful. Fletcher took pains to argue that most of the justices’ hypotheticals would not be covered by the encouragement law. He contended that some of those cases would not be a crime because the friend, for example, would not intend for the immigrant to break the law or would not have sufficient knowledge of the law or the immigrant’s immigration status. Fletcher offered that others would not be covered because solicitation does not reach abstract advocacy. But he recognized that Kagan’s hypotheticals were the “hardest cases,” when a friend or family member urges someone to stay, knowing that would violate the law. Fletcher argued that such a scenario would not be a crime, though Kagan appeared skeptical. Assuming that those scenarios would violate the law, Kagan later asked, how should she analyze overbreadth?

Justice Brett Kavanaugh posed an incisive hypothetical, to which Jackson and Justice Amy Coney Barrett would later return. He asked whether charitable organizations would violate the law if they provided food or housing to undocumented immigrants. Fletcher said generally no, even when Jackson described a scenario in which an organization only gave food and housing to undocumented people.  That is because, Fletcher argued, there might be a difference between providing aid to undocumented people on the assumption that they were going to remain in the U.S. and intending them to violate the law. He also suggested that the court, in later applied challenges, could hold that providing such aid does not sufficiently associate a charitable organization with the illegal venture.

The court used Fletcher’s remaining time to focus on the overbreadth doctrine. Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Barrett, and Kagan all asked how they should think about the dearth of prosecutions similar to what Fletcher described as the “hardest cases” — for example, the family member encouraging an immigrant to stay in the United States. Roberts, Thomas, Alito, Gorsuch, and Barrett seemed inclined to view that history as suggesting that there has been no significant chilling of speech, such that the law was not overbroad and therefore constitutional.

Sotomayor pushed back on that idea. She described a hypothetical involving an undocumented grandmother who lives with family in the U.S. “The grandmother tells her son she’s worried about the burden she’s putting on the family, and the son says, Abuelita, you are never a burden to us. If you want to live here — continue living here with us, your grandchildren love having you.” In that case, Sotomayor asked, “[W]hat do you tell the grandmother? … People have to know what they can talk about.”

Esha Bhandari of the American Civil Liberties Union argued on behalf of Helaman Hansen. She spent much of her time focusing on two sets of questions from the justices: whether the government’s interpretation of the statute was plausible, whether and how much chilling a plaintiff needs to show to assert an overbreadth claim.

Robert pushed Bhandari on whether Congress could have intended the government’s interpretation. Barrett asked if Bhandari would lose if the court adopted the government’s interpretation of the law — to which Bhandari responded no, unless the law was limited to encouraging crimes, not civil violations. Bhandari’s argument also revealed that several justices were concerned about how exactly to read aiding and abetting and solicitation into the act. Bhandari argued that the government had not made that clear, because the two crimes have different elements and the government hadn’t said which the court was supposed to read into “encourage” and which “induce” — arguments that seemed to persuade Jackson and Sotomayor, if not others.

Alito was keenly interested in whether solicitation of a civil violation could be criminalized. “[E]ncouraging someone to engage in prostitution, that cannot be criminalized?” he asked. What about laws against encouraging someone to commit suicide, would those be unconstitutional? Bhandari argued that those sorts of laws would not fall into the categorical exceptions for speech that’s integral to a crime, but that both laws might be constitutional because the government’s interest was strong. If that’s the case, Alito pushed skeptically, why isn’t the government’s interest in enforcing the immigration laws enough?

Bhandari spent much of her remaining time focusing on how much chill a plaintiff must show to invoke the overbreadth doctrine. Bhandari explained that under existing law the court has “never required a demonstrated chilling effect.” But several justices appeared interested in exploring whether there should be such a requirement. Gorsuch in particular seemed skeptical of overbreadth doctrine, repeatedly calling it “awkward” and “extraordinary” to worry about “chilling other people’s speech [when] it has nothing to do with the case before us.” 

As the argument came to an end, it appeared that the government had persuaded at least Thomas, Alito, Gorsuch, Barrett, and possibly Roberts. And Kagan, Sotomayor, and Jackson were inclined to hold that the statute violates the First Amendment. Will this be a case that does not shake out along partisan lines, with Kavanaugh and perhaps the Chief joining with the liberals to strike down the law or interpret it more narrowly? Perhaps. Or perhaps a majority will adopt a version of the government’s position.

One of the most interesting features of the argument was that Gorsuch and Barrett were two of the most, if not the most, skeptical of the First Amendment claim. Gorsuch was so skeptical, in fact, that he did not seem to entertain Hansen’s textualist argument. If my interpretation is correct, the newly configured court may not be as speech-protective as recent courts and chart a different course for the law of free speech — with potentially significant long-term consequences.