Federal legislation prohibits encouraging or inducing illegal immigration for personal monetary achieve. In March, the U.S. Supreme Courtroom heard oral arguments in a case, United States v. Hansen, that asks whether or not that legislation unconstitutionally abridges freedom of speech.
The legislation deserves to die on First Modification grounds. Because the Rutherford Institute and the Basis for Particular person Rights and Expression noticed in an amicus transient they filed within the case, “expressing disagreement with legal guidelines by advocacy of their violation” is “a part of a deeply rooted American custom.” That custom consists of abolitionists who urged defiance of pro-slavery statutes and civil rights activists who championed nonviolent resistance to Jim Crow legal guidelines. “Criminalizing mere encouragement of illegal conduct,” the transient warned, “would chill speech important to actions advocating political and social change.”
A contemporary hypothetical additional illustrates the purpose. Assume {that a} self-described advocate of an open-borders immigration coverage writes a guide urging civil disobedience within the face of what the writer argues is an unjust immigration regime. The guide immediately requires undocumented immigrants to stay in the US illegally and to combat for his or her rights.
The sale of such a guide would appear to violate the plain textual content of the federal prohibition on encouraging unlawful immigration for monetary achieve. But the First Modification simply as clearly protects the writer’s proper to jot down and promote such a guide. In that type of contest between a federal legislation and a constitutional liberty, the Structure at all times deserves to win.
Throughout oral arguments, a minimum of one justice appeared to concur. “Underneath this statute,” Justice Sonia Sotomayor famous, “we’re criminalizing phrases associated to immigration. And I assumed there have been solely sure statutes that had been resistant to First Modification challenges,” equivalent to legal guidelines governing “obscenity” or “preventing phrases,” whereas “every little thing else is topic to the First Modification and strict scrutiny. So why ought to we uphold a statute that criminalizes phrases?”
This statute “criminalizes phrases,” Sotomayor burdened as soon as once more a couple of minutes later. “Should not we watch out earlier than we uphold that sort of statute?” It was precisely the appropriate query to ask. Allow us to hope Sotomayor doesn’t discover herself penning the appropriate reply in dissent.
