One of the misconceptions concerning the First Amendment is that its free speech protections protect any speech at all. Not quite. There are all kinds of restrictions on speech and expression, from bans on nudity and obscenity to prohibitions on hate speech and incitement of violence. And, in many cases, advocating or instigating illegal behavior is illegal as well.
But even exceptions to rules have exceptions themselves, as the Ninth Circuit ruled when it struck down a federal statute banning speech that encouraged a person to violate immigration laws. The problem wasn't so much that it prohibited speech that promoted law-breaking, but that the statute, as written, was "unconstitutionally overbroad." Here's what that means.
Encouragement and Inducement
Federal statute 8 U.S.C. §§ 1324(a)(1)(A)(iv) makes it a felony for anyone 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." As the Ninth Circuit noted, that could include "a loving grandmother who urges her grandson to overstay his visa," by telling him "I encourage you to stay." Nothing in the statute, according to the court, would prevent the grandmother from facing felony charges.
While government attorneys defending the law argued that it only prohibited conduct, a very narrow band of speech, and had not been used against "efforts to persuade, expressions of moral support, or abstract advocacy regarding immigration," Judge A. Wallace Tashima pointed out:
[S]peech 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," could constitute inducement or encouragement under the statute.
"Criminalizing expression like this threatens almost anyone willing to weigh in on the debate," Tashima wrote. "Subsection (iv) criminalizes a substantial amount of protected expression in relation to the statute's narrow legitimate sweep; thus, we hold that it is unconstitutionally overbroad in violation of the First Amendment."
Free Speech and Legal Advice
The ruling is also good news for immigration attorneys and other professionals who work with immigrants who worried the statute could affect the advice they give to clients. "The most common example cited is an attorney who tells her client that she should remain in the country while contesting removal," the Ninth Circuit noted, "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." Such notice, according to the statute, could lead to felony charges for the attorney.
No longer. At least, that is, until the possible appeals are heard by the Supreme Court.