Is Encouraging Illegal Immigration Protected by the First Amendment?

Criticizing the law by calling for people to break it is an American tradition.

Federal law prohibits encouraging or inducing unlawful immigration for private financial gain. In March, the U.S. Supreme Court heard oral arguments in a case, United States v. Hansen, that asks whether that law unconstitutionally abridges freedom of speech.

The law deserves to die on First Amendment grounds. As the Rutherford Institute and the Foundation for Individual Rights and Expression observed in an amicus brief they filed in the case, "expressing disagreement with laws through advocacy of their violation" is "part of a deeply rooted American tradition." That tradition includes abolitionists who urged defiance of pro-slavery statutes and civil rights activists who championed nonviolent resistance to Jim Crow laws. "Criminalizing mere encouragement of unlawful conduct," the brief warned, "would chill speech essential to movements advocating political and social change."

A modern hypothetical further illustrates the point. Assume that a self-described advocate of an open-borders immigration policy writes a book urging civil disobedience in the face of what the author argues is an unjust immigration regime. The book directly calls for undocumented immigrants to remain in the United States illegally and to fight for their rights.

The sale of such a book would seem to violate the plain text of the federal prohibition on encouraging illegal immigration for financial gain. Yet the First Amendment just as clearly protects the author's right to write and sell such a book. In that sort of contest between a federal law and a constitutional liberty, the Constitution always deserves to win.

During oral arguments, at least one justice seemed to concur. "Under this statute," Justice Sonia Sotomayor noted, "we're criminalizing words related to immigration. And I thought there were only certain statutes that were immune to First Amendment challenges," such as laws governing "obscenity" or "fighting words," while "everything else is subject to the First Amendment and strict scrutiny. So why should we uphold a statute that criminalizes words?"

This statute "criminalizes words," Sotomayor stressed once again a few minutes later. "Shouldn't we be careful before we uphold that kind of statute?" It was exactly the right question to ask. Let us hope Sotomayor does not find herself penning the right answer in dissent.