Freedom of speech is one of the few issues that could be said to have bipartisan support at the Supreme Court. While the justices might differ as to what exactly counts as “speech”—money, for example—they agree that it takes a lot for the government to overcome First Amendment objections.
Now the conservative justices have a chance to prove their commitment to that principle. The Supreme Court has agreed to take up United States v. Sineneng-Smith this term, a case that concerns a little-used provision of immigration law that forbids “encourag[ing] or induc[ing] an alien to … reside in the United States” when the encourager knows that person has no legal status.
The case seems straightforward enough: Immigration consultant Evelyn Sineneng-Smith told her undocumented clients they could stay in the United States under a program she knew had ended. That was fraud, and the government ultimately convicted her for it.
But the government also convicted her on the encouragement provision, which on its face appears to criminalize any pro-immigration speech.
And that has the immigrant rights community worried that the court—with its recent record of unprecedented deference to the president on immigration matters—could greenlight the Trump Justice Department to criminalize routine legal work and political speech.
“An advocate or lawyer now has to worry, given the government’s position in this case, that this language … may trigger criminal liability just for correctly advising a noncitizen,” said Manny Vargas, senior counsel for the nonprofit Immigrant Defense Project in New York City.
The 9th U.S. Circuit Court of Appeals made short work of rejecting Sineneng-Smith’s appeal on the fraud convictions but reversed her encouragement convictions, finding that the government’s interpretation of the statute criminalizes a large amount of constitutionally protected speech.
Writing for a three-judge majority, Judge A. Wallace Tashima said the provision could send a social media user to prison for encouraging undocumented people to stay until the law is changed, or a lawyer for telling her client that he has fewer due process rights outside the United States than inside. In so ruling, he had the help of a great many amicus briefs from immigration advocacy groups, attorney groups, and First Amendment advocates, mostly arguing that the encouragement provision criminalizes protected political speech and routine legal work.
Tashima’s ruling dismissed claims from the federal government that the encouragement provision is not really a law against speech but requires “specific actions that facilitate” the entry or presence of an undocumented person. That’s not what the statute says, Tashima wrote. Indeed, he noted that the federal government has already prosecuted at least one person who “advised the cleaning lady generally about immigration law” in U.S. v. Henderson, without any of the specific actions that the government said in Sineneng-Smith were required.