Today a federal appeals court ruled that a law aimed at curtailing illegal immigration violates the First Amendment by criminalizing the speech of anyone who "encourages" an alien to enter or reside in the United States without the government's permission. A three-judge panel of the U.S. Court of Appeals for the 9th Circuit concluded that the law is "unconstitutionally overbroad" because it "criminalizes a substantial amount of protected expression in relation to the statute's narrow legitimate sweep."

The law, 18 USC 1324(1)(A)(iv), authorizes a fine and up to five years in prison for someone who "encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law." The maximum sentence rises to 10 years if the defendant acted "for the purpose of commercial advantage or private financial gain."

This case involves Evelyn Sineneng-Smith, a San Jose, California, immigration consultant who purported to help unauthorized home health care workers from the Philippines obtain green cards through a "Labor Certification" program that expired in 2001. Sineneng-Smith, who knew that anyone who had entered the country after December 21, 2000, was not eligible for the program, was convicted of fraud as well as violating 18 USC 1324(1)(A)(iv).

But as Judge A. Wallace Tashima notes in the 9th Circuit's ruling, which was joined by Judges Marsha Berzon and Andrew Hurwitz, the law on its face encompasses a wide range of less nefarious and less mercenary speech, including the words of "a loving grandmother who urges her grandson to overstay his visa," telling him, "I encourage you to stay." In fact, Tashima says, "situations like this one, where a family member encourages another to stay in the country, or come to the country, are surely the most common form of encouragement or inducement within Subsection (iv)'s ambit."

Another common situation, Tashima says, might involve "an attorney who tells her client that she should remain in the country while contesting removal—because, for example, non-citizens within the United States have greater due process rights than non-citizens outside the United States, or because, as a practical matter, the government may not physically remove her until removal proceedings are completed." Under a straightforward reading of the statute, "the attorney's accurate advice could subject her to a felony charge" and might even make her eligible for a 10-year sentence if the client is paying for her services.

Lest you think the government would never prosecute such violations of the law, Tashima notes a 2012 case in which a Massachusetts woman who hired an unauthorized immigrant to clean her house was prosecuted under 18 USC 1324(1)(A)(iv). She allegedly committed a felony when she "advised the cleaning lady generally about immigration law practices and consequences." It seems clear, Tashima says, that the law is "susceptible to regular application to constitutionally protected speech," and "there is a realistic (and actual) danger that the statute will infringe upon recognized First Amendment protections."

Nor is the law limited to one-on-one conversations. Tashima asks us to imagine "a speech addressed to a gathered crowd, or directed at undocumented individuals on social media, in which the speaker said something along the lines of 'I encourage all you folks out there without legal status to stay in the U.S.! We are in the process of trying to change the immigration laws, and the more we can show the potential hardship on people who have been in the country a long time, the better we can convince American citizens to fight for us and grant us a path to legalization.'" That also "could constitute inducement or encouragement under the statute."

Such speech does not amount to incitement or aiding and abetting a crime, Tashima notes. Rather, it is "pure advocacy on a hotly debated issue in our society," and "criminalizing expression like this threatens almost anyone willing to weigh in on the debate."