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At the high court this week, an important case for immigration reporting

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  1. First Amendment
Does the federal bar on encouraging unlawful immigration violate the First Amendment?
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Last December, the U.S. Supreme Court agreed to hear a case that challenges the constitutionality of the federal bar on “encouraging or inducing” unlawful immigration. On Monday, the oral argument in those proceedings will offer a window into whether the justices believe the statute can be squared with the First Amendment — a question that could have important consequences for journalists who cover unlawful activity, at the border and beyond.

As we’ve written before, the case, United States v. Hansen, arises out of the prosecution of Helaman Hansen for allegedly operating a fraudulent “adult adoption” program that falsely promised hundreds of participants a path to citizenship. Hansen argued — and the U.S. Court of Appeals for the Ninth Circuit agreed — that the so-called “encouragement provision” violates the First Amendment because of its potential to chill a broad swath of protected speech.

A key problem with the language of the statute, the U.S. Court of Appeals for the Tenth Circuit noted in a similar challenge, is that the encouragement provision doesn’t appear to require that the speaker specifically intend that a listener go on to commit an immigration violation. It isn’t hard to imagine valuable speech — from truthful legal advice to accurate reporting about migration routes — that could foreseeably encourage violations of immigration law even if the speaker doesn’t intend that result. And as the Supreme Court has already explained, “The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it.”

The United States then petitioned the Supreme Court to step in, arguing that the statute should be saved by interpreting it as a traditional aiding-and-abetting or solicitation law. To a rough cut, the First Amendment prohibits the state from prosecuting you for advocating lawbreaking in the abstract (“Overthrowing the government would be a good idea”), while speech that forms an integral part of a course of criminal conduct (“I propose we assassinate a politician together”) is fair game. The Court accepted the invitation, having agreed to decide the same question in 2019 in United States v. Sineneng-Smith before avoiding the issue on narrow procedural grounds.

In February, we filed a friend-of-the-court brief to explain that this case has important stakes for press freedom. For one thing, the “encouragement provision” was the foundation of a watchlist of reporters covering the border maintained by the U.S. Department of Homeland Security, and as documents the Reporters Committee and NBC 7 San Diego obtained in a Freedom of Information Act lawsuit show, some Border Patrol officials hoped to build a case under the statute against members of the media that they observed documenting border crossings. More broadly, the question whether publications can face chilling liability for sharing information that might be useful to someone who plans to break the law is a vitally important one wherever the public can’t count itself fully informed without the benefit of reporting that captures the ground truth of illegal activity.

While fashioning predictions out of oral-argument tea leaves is always a hazardous undertaking, Monday’s questioning will give us at least a few preliminary clues as to how the current Court is thinking about the issue. In Sineneng-Smith, as professor Gabriel Chin wrote for SCOTUSblog at the time, “[a] majority of the justices seemed to be concerned that the statute as written is quite broad.” But those qualms weren’t enough to persuade the Court to invalidate the statute last time around. Only time will tell if the First Amendment will carry the day in this bout.

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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with RCFP Staff Attorney Grayson Clary and Technology and Press Freedom Project Fellow Emily Hockett.

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