ACLU Praises SCOTUS for Agreeing Not to Criminalize Immigrant Supportive Speech

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By The Vanguard Staff

WASHINGTON, DC – The American Civil Liberties Union (ACLU) strongly praised the still-controversial U.S. Supreme Court for ruling this past week, as the ACLU noted, “the government cannot criminalize speech that merely encourages a noncitizen to enter or stay in the U.S. unlawfully,” which limits “the scope of a federal law that threatened free speech rights.”

The ACLU explained “the Supreme Court ruled” speech could only be criminalized when “the defendant intentionally solicits or aids and abets specific unlawful acts.”

The decision comes in United States v. Hansen, which, added the ACLU, “considered whether the ‘encouragement provision’ of a federal immigration law unconstitutionally criminalizes large swaths of speech protected by the First Amendment.”

“The Supreme Court has drastically limited the encouragement provision to apply only to intentional solicitation or facilitation of immigration law violations,” said Esha Bhandari, deputy director of the ACLU’s Speech, Privacy, and Technology Project. 

Bhandari added, “As written by Congress, the law has left people wondering what they can safely say on the subject of immigration. Now we expect the government to respect free speech rights and only enforce the law narrowly going forward.”

The ACLU pointed out, “Until this case reached the Supreme Court, the Justice Department had asserted a much broader reading of the federal law, refusing to admit limits on its power to prosecute people for their advocacy. Today’s ruling eliminates that uncertainty.”

“The court’s decision reaffirms that the government can only make speech a crime under very stringent circumstances,” said Carolyn Wiggin, assistant federal defender. 

Wiggin added, “As the Supreme Court interpreted the law at issue, when a friend, family member, or professional simply suggests a noncitizen remain in the United States, or informs them of their rights if they stay unlawfully, they cannot be prosecuted as a felon.”

The Federal Defender’s Office for the Eastern District of California and the ACLU represented Helaman Hansen, who was criminally charged with “encouraging two noncitizens to remain in the country after their visas expired, even though overstaying a visa is not itself a crime.”

Defense lawyers urged the court to hold that the law violated the First Amendment, including by making it illegal to encourage conduct that is not itself a crime.

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