Content Regulation / Censorship, Hate Speech, National Security
Government of Kazakhstan v. Respublika
Closed Contracts Expression
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The Supreme Court of the United States held that Federal Law 8 U.S.C. §1324(a)(1)(A)(iv) was not unconstitutionally overbroad, because it forbids only the purposeful solicitation and facilitation of unlawful immigration. The case involved Helaman Hansen, who operated a fraudulent “adult adoption” program promising U.S. citizenship to noncitizens, including Mana Nailati from Fiji. Nailati faced visa expiration and, trusting Hansen’s advice, remained in the U.S. unlawfully. Hanson enrolled some 450 persons in his adoption program which earned him nearly 2 million US dollars in personal profit. Hansen, charged under 8 U.S.C. §1324(a)(1)(A)(iv), challenged its constitutionality, claiming it overbroadly criminalizes protected speech, such as immigration advocacy. The Ninth Circuit agreed, but the Supreme Court, in a majority opinion by Justice Barrett, rejected the overbreadth claim. The Court interpreted the use of “encourages or induces” in the statute with its legal meanings, aligning it with solicitation and facilitation. It emphasized the provision’s historical context, rejecting concerns about chilling protected speech. The Court held that the statute, focusing on purposeful solicitation and facilitation integral to unlawful conduct, did not violate the First Amendment. Justice Jackson dissented, arguing the majority’s interpretation infringed on free speech and constitutional principles.
The case concerns Mana Nailati, a citizen of Fiji, who believed he could obtain U.S. citizenship through an “adult adoption” program run by Helaman Hansen. Hansen’s wife convinced Nailati that adult adoption was the “quickest and easiest way to get citizenship here in America”, leading Nailati to fly to California to participate. For a fee of $4,500, Hansen’s organization promised to arrange Nailati’s adoption, allowing him to inherit U.S. citizenship from his new parent. However, the adult adoption program turned out to be a scam, as there is no legitimate path to citizenship through such a process. [p. 1-2]
As Nailati waited for months with no progress, faced with the expiration of his visa, he sought advice from Hansen. Hansen advised him to stay, “‘Once you’re in the program,’ Hansen explained, ‘you’re safe. Immigration cannot touch you.’” Trusting this advice and anticipating imminent citizenship, Nailati remained in the country unlawfully. Hansen extended his fraudulent program to other noncitizens, enticing them with promises of citizenship through adult adoption. One couple, after hearing about the program from their pastor, paid $9,000 saved for a house in Mexico to participate. Another noncitizen, a housepainter who had accumulated savings over 21 years, also fell victim to the scam. In total, Hansen lured over 450 non-citizens into his program, amassing nearly $2 million. [p. 2]
The United States charged Hansen with various crimes, including violations of 8 U.S.C. §1324(a)(1)(A)(iv) [bringing in and harboring certain aliens], which prohibits encouraging or inducing an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such actions violate the law. The jury found that Hansen had acted for private financial gain, triggering a higher maximum penalty under §1324(a)(1)(B)(i). [Pg. 2] After the verdict, Hansen sought to dismiss the charges related to §1324(a)(1)(A)(iv) on First Amendment overbreadth grounds, referring to United States v. Sineneng-Smith, (2020), which raised similar constitutional concerns. However, the District Court rejected his argument and proceeded to sentence him. [p. 2]
As Hansen’s appeal was pending, the Ninth Circuit in Sineneng-Smith held that clause (iv) was unconstitutionally overbroad. This decision, however, was short-lived, as the Supreme Court vacated the judgment, criticizing the panel’s departure from the principle of party presentation as an abuse of discretion. Upon remand, limited to arguments made in Sineneng-Smith, the Ninth Circuit affirmed the convictions. Despite the vacating of the initial judgment in Sineneng-Smith, Hansen’s appeal gave the Ninth Circuit another opportunity to revisit the overbreadth question. The Court maintained its original stance, focusing on whether clause (iv) constituted a narrow prohibition or a sweeping ban on speech. The Ninth Circuit concluded that the clause criminalized a wide range of protected speech, including advising undocumented immigrants, and deemed it facially overbroad. [p. 3]
Despite the dissent of nine judges, the Ninth Circuit denied the Government’s petition for rehearing en banc. Justice Bumatay, who wrote the principal dissent, argued that the panel’s overbreadth concern resulted from a misreading of the statute. He contended that, correctly interpreted, clause (iv) should be limited to criminal solicitation and aiding and abetting, posing no overbreadth problem in the context of protected speech. The Solicitor General, on behalf of the United States of America, filed a Writ Petition of Certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case. [p. 4]
Justice Amy Coney Barrett wrote the majority opinion wherein Chief Justice Roberts, Justice Thomas, Justice Alito, Justice Kagan, Justice Gorsuch, and Justice Kavanaugh concurred. Justice Clarence Thomas also wrote a separate concurring opinion. Justice Ketanji Brown Jackson wrote a dissenting opinion, in which Justice Sonia Sotomayor joined. The primary question before the Court was to determine 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 speech.
The Court observed that Hansen does not claim that the First Amendment protects the communications for which he was prosecuted, acknowledging that the First Amendment does not shield fraud. [Illinois ex rel. Madigan v. Telemarketing Associates, (2003)] Instead, Hansen raised an overbreadth challenge, arguing that clause (iv) of §1324(a)(1)(A) punishes so much protected speech that it cannot be constitutionally applied to anyone, including himself. The Court explains that an overbreadth challenge is unusual, as litigants typically lack standing to assert the constitutional rights of third parties, and facial challenges usually require demonstrating that no set of circumstances exists under which the statute would be valid. However, the overbreadth doctrine, as justified by the Court, allows a litigant to challenge a statute as facially unconstitutional even if it has lawful applications. This doctrine aims to provide breathing room for free expression, preventing the deterrence or chilling of constitutionally protected speech. [p. 4-5]
The Court referred to Illinois ex rel. Madigan, (2003), and Virginia v. Hicks, (2003), to emphasize that the overbreadth doctrine allows a litigant to vindicate the rights of the silenced and society’s broader interest in hearing diverse perspectives. The Court also highlighted that facial invalidation for overbreadth is considered “strong medicine” and must be justified by realistic, not fanciful, unconstitutional applications that are substantially disproportionate to the statute’s lawful sweep, citing cases such as New York State Club Assn., Inc. v. City of New York, (1984) and Members of City Council of Los Angeles v. Taxpayers for Vincent, (1984). In the absence of a lopsided ratio, the Court noted that courts should handle unconstitutional applications on a case-by-case basis. [p. 4-5]
In evaluating whether §1324(a)(1)(A)(iv) was overbroad, the Court began by dissecting the language of the statute. This provision makes it illegal to “encourage” or “induce” an alien to come to, enter, or reside in the United States, with knowledge or reckless disregard that such actions would violate the law. The central issue was whether Congress used these terms in a specialized legal sense, referring to criminal solicitation and facilitation, or in their everyday usage, which would encompass a broader range of speech. Hansen, in his overbreadth challenge, leans towards the latter interpretation, arguing that the statute penalizes so much protected speech that it becomes unconstitutional. [p. 5-6]
The Court delves into the legal concepts of criminal solicitation and facilitation to establish a framework for its analysis. Criminal solicitation involves intentionally encouraging an unlawful act, while facilitation, also known as aiding and abetting, entails assisting a wrongdoer with the intent to further the commission of an offense. [Twitter, Inc. v. Taamneh, (2023)] The Court referred to Reves v. Ernst & Young, (1993) and Hicks v. United States, (1893) to emphasize that both solicitation and facilitation can be carried out through words alone, requiring an intent to bring about a specific unlawful act. The terms “encourage” and “induce” are identified as common verbs used to denote these concepts and have been employed in criminal law for centuries. Furthermore, the Court provides historical context, citing early American legal dictionaries and the federal criminal code’s use of “induce” for over a century. It highlights analogous statutes, such as those related to soliciting a crime of violence or unlawful sexual activity, which use language like “induce” or “encourage.” The Model Penal Code and various state criminal codes also consistently use these terms in connection with solicitation and facilitation. [p. 6-8]
Hansen, in alignment with the Ninth Circuit, contended that clause (iv) of §1324(a)(1)(A) utilizes the terms “encourages” and “induces” in their ordinary, rather than specialized, sense. He supported his argument with dictionary definitions, emphasizing that the everyday meanings of these terms convey a broader scope. According to Hansen, “induce” means to lead on, influence, prevail on, or move by persuasion or influence, while “encourage” means to inspire with courage, spirit, or hope. He asserted that clause (iv) encompasses these ordinary meanings, rejecting the notion that it is confined to the specialized legal concepts of aiding and abetting. Hansen further contended that clause (iv) prohibits encouragement outright, and this broad prohibition could extend to protected speech, such as op-eds or public speeches criticizing the immigration system and supporting the rights of long-term undocumented noncitizens to remain. According to Hansen, if the statute applies to the examples he presents, its reach into protected speech might overshadow its lawful applications, making it susceptible to an overbreadth challenge. [p. 8-9]
Considering Hansen’s contention, the Court held that clause (iv) of §1324(a)(1)(A) employs “encourages or induces” in its specialized criminal-law sense, aligning with the established legal meanings of these terms in the context of solicitation and facilitation. The Court emphasized that when Congress borrows terms of art with a legal tradition, it is presumed to adopt the cluster of ideas associated with those words in the legal domain. [Morissette v. United States, (1952) and, United States v. Shabani, (1994)] Drawing a parallel with the term “attempts” in adjacent provisions, the Court underscored the importance of interpreting criminal-law terms in a manner consistent with their specialized meanings, as opposed to their ordinary sense. The Court rejected the Ninth Circuit’s emphasis on ordinary meanings, asserting that the context and historical statutory evolution indicate Congress’s intention to use “encourage” and “induce” as terms of art. Statutory history, including the 1885 Act, which served as a template for clause (iv), reveals that even then, “encourage” carried a specialized meaning aligned with accomplice liability. [United States v. Hernandez-Calvillo, (2022)] The Court noted that over the years, Congress modified the statutory language, adding and removing terms while consistently placing “encourage” alongside words like “assist” and “solicit.” [p. 10-11]
Examining the 1917 Act and subsequent revisions leading to the current form of clause (iv), the Court disputed Hansen’s argument that eliminating “assist” and “solicit” broadened the prohibition on encouragement into a novel and boundless restriction on speech. The Court interpreted these changes as a streamlining effort, maintaining the substantial overlap in meaning between retained and omitted terms. The Court concluded that clause (iv) is a continuation of past statutes, reflecting Congress’s effort to refine and clarify the language, rather than a radical departure resulting in an unprecedented restriction on speech. The Court held that this interpretation aligns with the Court’s precedent, such as Morissette v. United States, which emphasizes understanding borrowed terms of art in their legal context. [United States v. Lem Hoy, (1947) and Lees v. United States, (1893)] [Pg. 12-13]
The Court noted that Hansen’s main argument contested the absence of a necessary mens rea (specific intent) in clause (iv) of §1324(a)(1)(A) for solicitation and facilitation offenses. He asserted that the terms “encourages or induces” lacked an explicit intent requirement, making it impossible to confine the provision to traditional solicitation or facilitation under criminal law. However, the Court rejected this argument, emphasizing that when Congress incorporates common-law terms like “encourage” and “induce,” it brings along their established legal meanings, including the requisite mens rea. [p. 13-14]
The Court drew parallels between clause (iv) and the federal aiding-and-abetting statute, which also lacks an express mens rea requirement. Despite the absence of such language, the aiding-and-abetting statute has been interpreted to implicitly incorporate the traditional mens rea associated with aiding and abetting offenses. The Court argued that since “encourages or induces” in clause (iv) draws on the same common-law principles, it should be construed similarly, even without an express mens rea requirement. Addressing Hansen’s contention that Congress could have explicitly included a mens rea requirement for “encourages or induces,” the Court argued that such modification was unnecessary due to the terms’ intrinsic association with solicitation and facilitation, carrying the traditional mens rea. The Court also dismissed the significance of Congress’s removal of the words “willfully or knowingly” in 1986, asserting that it was a streamlining effort rather than an indication of intent to eliminate mens rea. [p. 14-15]
Additionally, the Court stressed that the statutory context, historical interpretation, and the presumption of scienter all supported the conclusion that clause (iv) inherently carried the necessary mens rea for solicitation and facilitation offenses. The Court rejected Hansen’s attempts to expand the interpretation to the broadest extent and emphasized the principle of seeking harmony between legislation and the Constitution rather than manufacturing conflict. [p. 16-17]
The Court concluded that Section 1324(a)(1)(A)(iv) was constitutionally sound and did not infringe significantly on protected speech. The justices asserted that the provision’s legitimate reach was well-established and focused on purposeful solicitation and facilitation of specific acts known to violate federal law. The Court dismissed Hansen’s argument that the statute’s ordinary meanings of “encourage” and “induce” could potentially criminalize protected speech, emphasizing that the provision’s application was limited to speech integral to unlawful conduct. [United States v. Okatan, (2013); United States v. Yoshida, (2002), United States v. Tracy, (2011) and United States v. CastilloFelix, (1976)] To support its stance, the Court highlighted the historical context and various examples of nonexpressive conduct falling within the provision’s legitimate reach, such as smuggling noncitizens, providing counterfeit immigration documents, and issuing fraudulent Social Security numbers. The Court countered Hansen’s hypothetical scenarios of protected expression being penalized under clause (iv), stating that these examples were not filtered through the necessary elements of solicitation or facilitation, especially the requirement of specific intent. [p. 17-19]
The Court reinforced the principle that speech intended to bring about a particular unlawful act, including solicitation or facilitation of criminal violations, is not protected by the First Amendment. The Court referred to precedents including Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, (1973) and Giboney v. Empire Storage & Ice Co. (1949), where the Court had consistently applied this principle, including cases involving the promotion of contraband, solicitation of unlawful employment, and picketing aimed at inducing a target to violate the law. The Court also addressed Hansen’s “mismatch” theory, which suggested that criminal penalties could not be imposed on speech soliciting or facilitating a civil violation, stating that even if the theory were valid, Hansen’s overbreadth challenge failed to demonstrate a substantial imbalance between lawful and unlawful applications of the statute. [p. 19-20]
Concurring Opinion of Justice Thomas
Justice Thomas concurred with the Court’s opinion but wrote separately to express his concerns about the facial overbreadth doctrine. He argued that the doctrine, allowing federal courts to invalidate a law as facially unconstitutional based on hypothetical applications, lacks a basis in the text or history of the First Amendment. Justice Thomas likened the doctrine to the role of the New York Council of Revision, which the Framers rejected during the Constitutional Convention in 1787. Justice Thomas emphasized that the facial overbreadth doctrine enables courts to engage in policy determinations similar to those made by legislatures, going beyond their proper role of adjudicating the rights of the parties before them. He pointed out that the doctrine involves examining the law’s potential applications to individuals not involved in the legal proceedings and making broad societal policy decisions. Justice Thomas suggested that the case at hand highlights the significant departure of courts from their original role and proposed a careful reconsideration of the facial overbreadth doctrine in an appropriate case.
Dissenting Opinion of Justice Jackson, with whom Justice Sotomayor joined.
Justice Jackson, joined by Justice Sotomayor dissented against the majority’s interpretation of the statute in question, which criminalized encouraging or inducing noncitizens to enter or reside in the United States unlawfully. She contended that the majority narrowed the statute to avoid a First Amendment overbreadth challenge, but in doing so, departed from established principles of statutory interpretation. She pointed out that the provision seemed to criminalize mere encouragement or inducement of a civil violation, which was inconsistent with the typical understanding of solicitation or facilitation statutes that required the underlying offense to be a crime. Jackson argued that the majority’s narrowing construction of the statute through the canon of constitutional avoidance was problematic and invaded the legislative domain. She emphasized the overbreadth of the encouragement provision, expressing concerns about its potential chilling effect on free speech, especially in the context of First Amendment challenges.
Furthermore, Justice Jackson dismissed the majority’s reliance on the absence of past prosecutions under the provision as a justification for its constitutionality. She argued that such a lack of prosecutions did not negate the danger posed by the statute, as the government’s prosecutorial discretion and shifts in legal positions during the trial indicated the potential for abuse. Jackson highlighted the real and pervasive chilling effect on free expression, considering not only criminal prosecutions but also government surveillance and other actions that could impede speech without leading to formal prosecutions. Jackson referred to the Brief for Reporters Committee for Freedom of the Press as Amicus Curiae to provide an example of how Customs and Border Protection, emboldened by the encouragement provision, created a “watchlist” to monitor not only migrants but also journalists reporting on the immigration crisis who were later subjected to special screenings. Jackson stressed that “There can be no doubt that this kind of Government surveillance targeted at journalists reporting on an important topic of public concern, no less—tends to chill speech, even though it falls short of an actual prosecution.” [p. 53]
Ultimately, she asserted that the encouragement provision, as written, was overbroad and should be deemed facially unconstitutional under the First Amendment.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The ruling in this case does not expand the freedom of expression; instead, it upholds the constitutionality of 8 U.S.C. §1324(a)(1)(A)(iv) by rejecting the overbreadth challenge raised by the defendant, Helaman Hansen. The Court emphasizes that the provision, which criminalizes “encouraging or inducing” unlawful immigration, is narrowly tailored to target purposeful solicitation and facilitation of specific acts known to violate federal law. The ruling maintains that speech integral to unlawful conduct, such as smuggling noncitizens or providing counterfeit immigration documents, falls outside the realm of protected expression. While acknowledging the importance of preventing overbreadth challenges to safeguard free speech, the Court underscores the provision’s legitimate reach and its historical context, asserting that it does not significantly impede protected speech but focuses on conduct that poses a real threat to the immigration system’s integrity.
However, the dissenting justices argued that the majority decision “undermines the goal of the overbreadth doctrine, which aims to keep overly broad statutes off the books in order to avoid chilling constitutionally protected speech.” Specifically, Justice Jackson warned that the ruling leaves the law unclear on key aspects of whether or not prosecution requires individuals actually complete the offense or just “solicit” it. Moreover, the minority observed that despite the majority argument that there is no history of prosecutions restricting protected speech under the encouragement provision, there is evidence that the provision is being relied on to justify activities that chill speech, including government sponsored surveillance.
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