Willie R. Tubbs, FISM News

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A decades-old law that makes it a crime to induce people to illegally immigrate to the United States — one endorsed by the Biden administration — appears safe following Monday’s arguments before the Supreme Court.

The case, which originated in California, involves a man named Helaman Hansen who was convicted of violating the anti-inducement law as well as wire and mail fraud after he convinced numerous immigrants that he had created an “adult adoption” program in the United States.

Hansen convinced 471 people to join his made-up program, at an expense of about $10,000 per person, netting $1.8 million through the scheme.

FREE SPEECH RULING

San Francisco’s 9th Circuit Court of Appeals upheld Hansen’s fraud convictions but invalidated the anti-inducement law as a violation of free speech.

“[This] Court should not create a new category of unprotected speech, namely, criminal solicitation of civil law violations,” Esha Bhandari, representing Hansen, argued. “The historical roots of that exception are limited to solicitation of crimes and for good reason. If the justification for treating speech as categorically unprotected is that it is integral to conduct that the government can punish, then the speech cannot be punished more harshly than that conduct.”

Liberal Justice Sonia Sotomayor expressed opposition to the law which she said constituted the government “criminalizing words related to immigration.”

CONSERVATIVES DISAGREE

Conservative justices did not seem convinced during oral arguments, the full transcript of which can be found here.

“I don’t think anybody could say [Hansen has] been chilled from speaking,” Justice Neil Gorsuch said. “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. I mean … 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.”

Gorsuch later stated, “he had every intent in the world to keep these people here to … take their money with no prospect they’d ever actually … obtain any kind of relief.”

Justice Amy Coney Barrett also expressed doubt that the law was in any way a violation of the First Amendment.

“The statute’s been on the books for a long time and there’s an absence of prosecutions. There’s also an absence of demonstrated chilling effect,” Barrett said.

Brian H. Fletcher, arguing on behalf of the United States government, accused the 9th Circuit of being overbroad in its interpretation of the law.

“For more than a century, Congress has made it a crime to encourage or induce certain immigration offenses,” Fletcher said. “Mr. Hansen violated that statute by inducing noncitizens to reside in the United States illegally so that he could take their money in a fraudulent citizenship scheme. No one suggests that that conduct was protected by the First Amendment. But the 9th Circuit invoked the overbreadth doctrine to facially invalidate this longstanding statute by giving the words ‘encourage’ and ‘induce’ their broadest possible meaning and sweeping in wide swaths of protected speech.”

In other words, the government contends that the 9th Circuit took what was meant to be a specific limitation of speech and expanded it to the point of ruling it a violation of the First Amendment.

There is no timetable for the court’s ruling on this case.