Court: U.S. Supreme Court
Date Filed: Feb. 23, 2023
Update: On June 23, 2023, the U.S. Supreme Court upheld — but narrowed — the federal bar on “encouraging” unlawful immigration. A majority of the Court acknowledged that the statute would raise constitutional questions if read literally, but concluded that the law should be interpreted to reach “no further than than the purposeful solicitation and facilitation of specific acts known to violate federal law.” Justices Ketanji Brown Jackson and Sonia Sotomayor dissented, citing the Reporters Committee’s friend-of-the-court brief to highlight that the government had read the statute much more broadly in the past, including to justify the surveillance of “journalists reporting on an important topic of public concern” at the border.
Background: Over a four-year period starting in 2012, Helaman Hansen ran an adult adoption program that falsely claimed to help undocumented immigrants become U.S. citizens. In 2017, a jury found Hansen guilty of several charges related to his operation of the adoption program, including two counts of “encouraging unlawful immigration.”
Hansen moved to dismiss the two counts, arguing that the federal law that bars knowingly “encourag[ing] or induc[ing]” someone to enter the United States illegally violates the First Amendment, an issue that the U.S. Supreme Court declined to address in a 2020 case. A federal district court denied his motion. On appeal, however, the U.S. Court of Appeals for the Ninth Circuit vacated the two counts, holding that the federal bar on encouraging unlawful immigration is “overbroad and unconstitutional.”
The government petitioned the U.S. Supreme Court. In December 2022, the Court agreed to hear the case.
Our Position: The Supreme Court should affirm the Ninth Circuit’s ruling and hold that the bar on encouraging unlawful immigration violates the First Amendment.
- The government has invoked the bar on encouraging unlawful immigration to justify monitoring reporters at the border.
- The First Amendment protects reporters from the threat of inchoate liability when they report on or depict unlawful activity.
- The federal bar on encouraging unlawful immigration exceeds the traditional First Amendment limits on inchoate liability.
Quote: “[T]he strict enforcement of traditional limits on solicitation or aiding-and-abetting liability plays an integral role in safeguarding the exercise of First Amendment rights, including the freedom of the press to report on newsworthy unlawful activity.”
Related: The Reporters Committee, NBC 7 San Diego, and reporter Tom Jones are currently litigating a Freedom of Information Act lawsuit against four government agencies for refusing to disclose records about a secret government database of journalists, activists, and social media influencers in connection with asylum and immigration issues at the U.S./Mexico border. As our friend-of-the-court brief in this Supreme Court case explains, public records obtained through that litigation show that government officials hoped that monitoring journalists could help them bring “criminal aiding and abetting” charges against members of the news media.