In another case dealing with speech related crimes, the Supreme Court had to decide whether a federal law criminalizing “encouraging or inducing” illegal immigration is unconstitutionally overbroad under the First Amendment.
In 2014, Mana Nailati, a Fiji citizen, heard that an “adult adoption” program run by Helaman Hansen could grant him United States citizenship. Eager to immigrate to the United States, Nailati flew to California to be a part of this program. Hansen’s wife indicated to Nailati that this program, which would cost him $4,500 dollars, was the “quickest and easiest way to get citizenship.” This organization would arrange the adult adoption and Nailati could get citizenship from his “new parent.” Nailati signed up for the program. Hansen defrauded Nailati and, based upon Hansen’s false indication that Nailati would have citizenship, Nailati allowed his visitor’s visa to expire and remained undocumented in the United States.
Nailati’s case is not unique. According to court filings, Hansen had defrauded other hopeful immigrants of over $2 million dollars. Alongside several other charges, the United States charged Hansen with violating 8 U.S.C. § 1324(a)(1)(A)(iv), which forbids “encourage[ing] or induc[ing] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to is or will be in violation of the law.” The jury convicted him and found he acted “for the purpose of private financial gain,” triggering a higher maximum penalty.
In the meantime, the 9th Circuit heard a substantially similar case, United States v. Sineneng-Smith, which dealt with the constitutionality of the First Amendment under § 1324. The 9th Circuit held that § 1324 was unconstitutionally burdensome on speech. The Supreme Court vacated the judgment and rebuffed the Circuit Court’s decision, stating that the issue of overbreadth was not present in the appeal and constituted an abuse of discretion from the 9th Circuit.
Seeing Sineneng-Smith as a way to mitigate the charges levied against him, Hansen moved to dismiss the § 1324 charge as unconstitutional under the First Amendment. The District Court subsequently denied this motion and sentenced Hansen.
Given Sineneng-Smith involved § 1324 with a near identical fact pattern to Hansen’s case, the 9th Circuit again held in Hansen that § 1324 was too burdensome on the exercise of speech and can only apply to criminal solicitation and aiding and abetting. The 9th Circuit refused the United States’ petition for rehearing en banc. The United States appealed, and the Court granted certiorari.
Justice Barrett wrote for the Court majority, joined by Chief Justice Roberts, as well as Justices Thomas, Alito, Kagan, Gorsuch, and Kavanaugh.
Justice Barrett admits that the issue of overbreadth in the criminalization of speech is a unique one and, quoting United States v. Salerno, requires the Court to look at whether the statute in question “establish[es] that no set of circumstances exists under which the [statute] would be valid.” Additionally, the overbreadth doctrine instructs a court to hold a statute facially unconstitutionally burdensome on speech even if the law has some lawful applications.
Understanding this standard, Justice Barrett looks at what speech an application of § 1324(a)(1)(A)(iv) would criminally prohibit. She specifically identifies that the action prohibited by the statute is to “encourage” and “incite,” which typically refers to solicitation and facilitation of an action. Encouragement and incitement are words both used in the Model Penal Code relating to a series of other crimes pertaining to the use of speech to compel another to do something unlawful, such as coercion to engage in a conspiracy. Such crimes are not burdensome on speech, and thus, neither is § 1324.
According to Justice Barrett, it was incumbent upon Hansen to prove that the clause at issue is suppressive comparative to its legitimate sweep, which he failed to prove. Thus, the Court upheld the constitutionality of § 1324(a)(1)(A)(iv) and remanded the case back to the 9th Circuit.
Justice Thomas concurred with the Opinion of the Court but wrote separately challenging the overbreadth doctrine as an improper exercise of judicial power. According to him, the rules handed down by the Court are meant to be all encompassing, rather than mere policy provisions. The overbreadth doctrine requires a policy determination of the reviewing court as to whether the legitimate use of a potentially speech-limiting statute overpowers the speech protections offered to ordinary citizens. Justice Thomas contends that such a policy determination ought not be decided in the realm of the Court, and rather they should uphold or strike down legislation on the basis of its raw constitutionality, rather than a cost-benefit analysis to its presence.
Justice Jackson authored a dissent in this case, in which she was joined by Justice Sotomayor. Justice Jackson contends that § 1324’s unconstitutional applications considerably overbear the legitimate use of the statute, and consequently, that Justice Barrett conducted an improper analysis of the overbreadth doctrine. Justice Jackson proffers several mundane actions which may be prosecutable under the new regime, including statements made which could induce someone to come to the United States illegally. She also indicates that previous iterations of this law used different enabling verbs, specifically “solicit” and “assist,” which both indicate a higher mens rea of express intent, is necessary to be held liable under the statute.
Resultant from this case is a reassertion of the overbreadth doctrine when it comes to criminal speech statutes, confirming the existing balancing test between legitimate uses of a criminal prohibition on kinds of speech versus the burden upon the generalized free speech inherent in the population. While potentially helpful should an officer be hostile to immigration in any form, Justice Jackson’s concerns are remote, and her detailed instances would likely not be tried due to prosecutorial discretion. Justice Thomas’s concerns regarding the propriety of judicial policymaking in this realm is one to take keen interest in. If the Court adopts his position in future, a considerable bureaucratic change will have to take place regarding the criminalization of different forms of speech.