ustice Amy Coney Barrett, delivering the opinion of the court’s majority, concedes that when the Encouragement Provision is interpreted based on its plain meaning, “encourage” means “to incite to action” while “induce” is synonymous with “to move by persuasion or influence.” As written, this statute would seem to unlawfully prohibit the First Amendment right to “incite” or “influence” dissent to immigration laws.
However, Barrett decides that in “terms of art,” Congress intended the provision to only forbid “the intentional solicitation or facilitation of certain unlawful acts,” akin to an aiding-and-abetting criminal statute. The majority’s decision to narrow the application of this unconstitutional provision, rather than completely overturn it, is a disheartening departure from their textualist approach. Their revision may still have a chilling effect on protected speech opposing unjust laws and policies, even as advocates celebrate the partial win.
In her dissent, Justice Ketanji Brown Jackson, joined by Justice Sonia Sotomayor, expresses concern that the court’s ruling “leaves many things about future potential prosecutions up in the air.” This uncertainty of whether government officials will erroneously adhere to the statute’s literal interpretation or instead comply with the court’s revised version may discourage people from criticizing immigration enforcement’s mistreatment of migrants or offering essential services to undocumented individuals.
Granted, respondent Helaman Hansen is no political activist for immigration reform. The case started in 2017 when Hansen received a 20-year prison sentence for his fraud scheme “Migration Program,” in which he sold memberships to noncitizens with the false promise that they could gain U.S. citizenship by being adopted by an American citizen. Hansen appealed his convictions to the U.S. Court of Appeals for the 9th Circuit, citing a prior 9th Circuit decision that found the statute to be unconstitutional under the First Amendment. Although the Supreme Court reversed that earlier 9th Circuit ruling on a separate procedural basis without deciding its constitutionality, the 9th Circuit revived their original determination about the statute’s unconstitutionality to find in Hansen’s favor.