United States v. Helaman Hansen

A federal law, 8 U.S.C. § 1324(a)(1)(A)(iv) (the “encouragement provision”), makes it a felony to “encourage[] or induce[] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard that such coming to, entry, or residence is or will be in violation of law.” Violating the encouragement provision carries a maximum penalty of five years’ imprisonment, while a separate penalty enhancement provision raises this maximum to ten years when the violation is committed “for the purpose of commercial advantage or private financial gain.”

The encouragement provision violates the First Amendment because it criminalizes a wide swathe of constitutionally protected speech. Its plain terms make it a crime for a grandmother to say she doesn’t want her undocumented grandchild to leave her, a doctor to advise her patient with an expiring student visa that the patient needs medical treatment provided only in the United States, a priest to inform a noncitizen parishioner whose employment authorization is ending about church child-care and pantry resources that would support her remaining, and a lawyer to counsel an out-of-status noncitizen that she has the ability to become a lawful permanent resident if she does not leave the country. All such speech is a crime, even though the conduct it “encourages” is at most a civil violation of law. And the statute makes such speech a crime without any showing that the speaker intended to encourage the listener to violate the law, or that a violation was likely or imminent.

This case has implications for freedom of speech outside of the context of immigration. Other protected political expression—from arguing for peaceful civil disobedience, to academic work advocating violations of environmental and zoning regulations, to broad encouragements to “resist” Court rulings—could readily satisfy the government’s standard of “encouraging” lawbreaking, given the wide range of behavior that is civilly regulated. But the First Amendment protects such abstract advocacy of unlawful conduct.

United States v. Helaman Hansen is on appeal from the U.S. Court of Appeals for the Ninth Circuit. The U.S. Supreme Court has calendared the case for oral argument on March 27, 2023. The ACLU is counsel in the case with the Office of the Federal Defender for the Eastern District of California.