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Free speech rights clash with immigration law

The First Amendment to the U.S. Bill of Rights guarantees the rights to free speech and assembly. But these may clash with the federal Immigration and Nationality Act that makes it unlawful to encourage a noncitizen to come into, reside or enter this country illegally. This encouragement provision of U.S. immigration law is currently before the U.S. Supreme Court.

Encouragement provision

Taking this law at face value, a prosecutor may seek a conviction if a person knew or recklessly disregarded that a noncitizen’s entry into the country or residence would be illegal.

There are apparently no limits because the prosecution does not require a speaker to intend that a noncitizen commit a crime or that the criminalized speech be directed to an undocumented immigrant.

This INA provision took effect in 1986 and updated other laws that prohibited advertisements of U.S. job opportunities overseas and encouraging or inducing non-citizens to enter this county. Other provisions of that law criminalize harboring and transporting noncitizens who are in this country illegally or bringing noncitizens into the U.S. without limit.

Violations are punishable by a maximum of five years in prison. A separate enhancement provision raises the maximum penalty to 10 years if the violation is committed for commercial advantage or private financial gain.

Speech that may lead to criminal prosecution under the encouragement provision could include:

  • A grandparent telling their undocumented grandchild that they do not want them to leave.
  • Physicians who advise patients with an expiring visa that the patient needs medical treatment that is offered only in this country.
  • Clergy informing a noncitizen parishioner whose employment authorization is ending about child-care and pantry resources that would support her staying in this county.
  • Lawyers advising out-of-status noncitizens that they may become a lawful permanent resident if they do not leave the United States.
  • Professors advocating for DACA recipients to stay in the United States so Congress will be pressured to enact a pathway towards citizenship.

Supreme Court case

The U.S. Supreme Court heard arguments in March on the encouragement provision. In that case, a person in California was convicted for violating this law by encouraging two noncitizens to stay in this country after their visas expired. His words, however, did not encourage the commission of a crime because residing in this country after a visa expires is a civil violation of the INA.

The court will decide whether the First Amendment prohibits criminal punishment of speech that encourages a noncitizen to stay in this country without requiring an intent to further unlawful conduct and when remaining in the United States is not a crime.

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