Monday, March 27, 2023

Supreme Court Oral Argument Preview: Does the federal law that prohibits encouraging or inducing unlawful immigration violate the First Amendment?

Court Building

Photo Courtesy of the Official Supreme Court website


Amanda Shanor for previews an immigration and First Amendment case that will be argued before the U.S. Supreme Court this morning.  She writes

"For four years, Helaman Hansen falsely promised undocumented immigrants that they could, for a substantial fee, become U.S. citizens through `adult adoption.' Although Hansen persuaded more than 450 people to pay him for his services, the program was a ruse that would not lead to citizenship.

On Monday, in United States v. Hansen, the Supreme Court will consider whether 8 U.S.C. §1324(a)(1)(iv), the federal law that criminalizes `encouraging or inducing unlawful immigration,' violates the First Amendment’s guarantee of free of speech. The case will have potentially significant effects on immigration enforcement. But it may have an even bigger effect on First Amendment law, with significant implications for dissent, incitement, solicitation and aiding and abetting liability, and social media regulation."

Shanor offers no predictions:  "Hansen may also offer us insight into this court’s approach to speech law. Will it continue an earlier court’s trend of adopting ever more speech-protective rules or chart a different course?

We’ll have to wait and see. The only wager I’ll make is that at argument we will hear many wild hypotheticals."


For commentary on the case for potential First Amendment implications for journalists covering immigration, click here.

For an NPR discussion with Amanda Shanor, see


The argument can be livestreamed later this morning on the Supreme Court website.  It is second on the oral argument calendar that begins at 10 a.m. EST.


UPDATE (March 28):  Here is the transcript of the argument.  According to Josh Gerstein for Politico, "[a] majority of the Supreme Court seemed unwilling on Monday to strike down a federal ban on encouraging immigrants to remain in the U.S. illegally, despite arguments that the law violates the First Amendment."

UPDATE (March 29):  Amanda Shanor for SCOTUSBlog recaps the argument:  

"As the argument came to an end, it appeared that the government had persuaded at least Thomas, Alito, Gorsuch, Barrett, and possibly Roberts. And Kagan, Sotomayor, and Jackson were inclined to hold that the statute violates the First Amendment. Will this be a case that does not shake out along partisan lines, with Kavanaugh and perhaps the Chief joining with the liberals to strike down the law or interpret it more narrowly? Perhaps. Or perhaps a majority will adopt a version of the government’s position."


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