WASHINGTON — The Supreme Court heard arguments on Monday in a First Amendment challenge to an unusual federal law that makes it a crime to “encourage” unauthorized immigrants to come to or stay in the United States.
Read literally, several justices suggested, the law would chill constitutionally protected speech.
Justice Sonia Sotomayor asked about a grandmother living in the United States without authorization. “The grandmother tells her son she’s worried about the burden she’s putting on the family,” the justice said. “And the son says: ‘Abuelita, you are never a burden to us. If you want to continue living here with us, your grandchildren love having you.’”
Justice Sotomayor asked whether the government could prosecute the son.
Brian H. Fletcher, a lawyer for the federal government defending the law, did not give a definitive answer. “I think not,” he said.
That frustrated Justice Sotomayor. “Stop qualifying with ‘think,’ because the minute you start qualifying with ‘think,’ then you’re rendering asunder the First Amendment,” she said. “People have to know what they can talk about.”
Justice Elena Kagan said it was not hard to imagine violations of the law based on the ordinary meaning of the word “encourage.”
“What happens to all the cases where it could be a lawyer, it could be a doctor, it could be a neighbor, it could be a friend, it could be a teacher, it could be anybody says to a noncitizen, ‘I really think you should stay?’” she asked.
Justice Brett M. Kavanaugh wondered about charitable organizations. “There’s still going to be a chill or a threat of prosecution for them for providing food and shelter and aid and recommending people for scholarships,” he said.
Mr. Fletcher said the justice was describing conduct rather than speech. Justice Kavanaugh responded that the charitable aid might be accompanied by a statement like, “I want you to stay here and I’m going to help you.”
Even as they posed questions about hypothetical prosecutions, the justices appeared to have little sympathy for the defendant in the case before them, Helaman Hansen, who was convicted of violating the law, along with mail and wire fraud, for taking large fees to help undocumented immigrants obtain citizenship through adult adoption. It was a scam.
“It is a little awkward, though, that this case comes up in a posture with Mr. Hansen, who I don’t think anybody could say he’s been chilled from speaking,” Justice Neil M. Gorsuch said. “I mean, he’s had no problem soliciting people here in this country and defrauding them to the tune of lots and lots of money.”
Mr. Fletcher said the key word in the law — “encourages” — was a term of art that required complicity in a crime and did not apply to casual exchanges.
Esha Bhandari, a lawyer with the American Civil Liberties Union, which represents Mr. Hansen, said that was at odds with ordinary usage. “The government concedes that the statute is unconstitutional under its plain meaning,” she said.
Mr. Fletcher said that Mr. Hansen’s case, involving outright fraud, was the typical one and that prosecutions of charities and grandmothers were far-fetched.
Justice Sotomayor countered that there was at least one questionable prosecution under the law, citing the 2012 conviction of a Massachusetts woman, Lorraine Henderson, for hiring an unauthorized immigrant to clean her home and offering general advice about immigration law.
In that case, Judge Douglas P. Woodlock, of the Federal District Court in Boston, wrote that the “plain and unadorned language” of the law “can be read to cast a wide net over those who interact with illegal aliens by offering employment.”
In the case before the justices, United States v. Hansen, No. 22-179, a panel of the U.S. Court of Appeals for the Ninth Circuit upheld Mr. Hansen’s fraud convictions, which resulted in 20-year prison sentences. But it reversed his convictions under the law for encouraging immigrants to overstay their visas, which would have come with 10-year sentences to be served at the same time as the sentences for fraud.
The law, Judge Ronald M. Gould wrote for the panel, was unconstitutional. Under it, he wrote, “many commonplace statements and actions could be construed as encouraging or inducing an undocumented immigrant to come to or reside in the United States.” All it would take to turn an utterance into a felony, he wrote, was “knowingly telling an undocumented immigrant, ‘I encourage you to reside in the United States.’”
Last year, a divided three-judge panel of the 10th Circuit, in Denver, joined the Ninth Circuit in striking down the law, saying that it was surely violated scores of times every day.
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