Encouraging someone to enter or live in the United States illegally is perfectly legal, according to a ruling last week by the 9th U.S. Circuit Court of Appeals.
A three-judge panel struck down a section of federal law that criminalizes a variety of behaviors, including unlawfully bringing in illegal immigrants, shielding them from detection, or encouraging them “to come to, enter, or reside in the United States.”
The court ruled that the law was “unconstitutionally overbroad” in light of the First Amendment’s protection of free speech.
The judges reversed a lower court ruling from 2010 that found San Jose, Calif., immigration consultant Evelyn Sineneng-Smith guilty of two felony counts of counseling illegal immigrants to remain in the United States illegally. From 2001 to 2008, she told clients—mostly healthcare workers from the Philippines—that she could help them get green cards by way of a labor certification program, even though she knew that process had expired in 2001.
The law that nailed Sineneng-Smith could also apply to “simple words—spoken to a son, a wife, a parent, a friend, a neighbor, a coworker, a student, a client—‘I encourage you to stay here,’” according to the court opinion written by U.S. Circuit Judge A. Wallace Tashima.
Mat Staver, chairman of the legal group Liberty Counsel, told me he expects a revision of the immigration law that will not include speech.
“You want to prevent someone from being involved in facilitating illegal immigration, while, at the same time, not prohibit someone from speaking on the subject of illegal immigration or even providing counsel to individuals regarding that issue of illegal immigration,” he said.
Staver said that a clear line exists between simply telling someone to stay in the country illegally—a protected form of speech—and actually housing, employing, or otherwise physically helping them do so.
Government attorneys argued that the law mostly prohibited actions and a narrow kind of speech that the First Amendment doesn’t protect. But the court ruling said that “criminalizing expression like this threatens almost anyone willing to weigh in on the debate.”
It’s unclear if the federal government will appeal to the Supreme Court, but Staver believes the law will ultimately be back on the books, just modified not to restrict free speech. —Samantha Gobba