Immigration Advocates Face Down Free Speech Prosecution

The First Amendment will soon come back for review in a case in front of the Supreme Court—and Americans could suffer a colossal loss to free speech protections if the Court’s ruling goes the wrong way.

The case that the justices will hear in the upcoming session is United States v. Sineneng-Smith. It concerns an immigration attorney named Evelyn Sineneng-Smith who tricked undocumented workers in California into hiring her on retainer. Ostensibly, this was so that she could assist them in obtaining a green card through a labor certification program—the catch was that these people were in fact not even eligible for that program. She perpetrated the scheme for about seven years before, fortunately, she was caught and convicted on fraud charges. 

However, the government prosecution also won a conviction on another charge: the Immigration Reform and Control Act of 1986 (IRCA) makes it a felony to "encourage or induce" illegal entry into or residence within the United States, provided that the encourager is "knowing or in reckless disregard" that their entry would be unlawful.

Unsurprisingly, the 9th U.S. Circuit Court of Appeals upheld Sineneng-Smith’s fraud convictions; her actions had clearly been criminal. But, more critically, the court reversed the conviction under the encouragement clause, holding that the clause is overbroad on its face. Judge A. Wallace Tashima wrote in the Court’s opinion that “the statute potentially criminalizes the simple words—spoken to a son, a wife, a parent, a friend, a neighbor, a co-worker, a student, a client—‘I encourage you to stay here.’” 

The government prosecution did not accept this outcome. Instead, they appealed the decision to the Supreme Court under the existing language—an unusual step given the relatively uncontroversial legal context—potentially hinting at a more sinister agenda. If that is the case, they certainly picked the perfect defendant: obviously, it’s tempting to rule against a criminal manipulator like Sineneng-Smith.

United States v. Sineneng-Smith’s employment of the encouragement provision “criminalizes constitutionally-protected speech,” as the Ninth Circuit bluntly put it: after all, the First Amendment ensures that individuals are protected from the government punishing or censoring their political speech. However, the First Amendment is not without its limits. The justices will be toeing a line: the inducement of a specific illegal action is illegal; however, general and abstract advocacy of illegal activity is not illegal. In the eyes of our courts, it does not provide significant material aid to illegal action, and it is not likely to produce imminent, specific lawless action. Those lines are often blurred in the realm of immigration activism. 

With regard to the currently-overbroad wording of the encouragement provision, American citizens could be censored for encouraging individuals lacking proper status to remain within the United States. Judge Tashima argued that, under the current construction of the law, a grandmother urging her grandson to overstay his visa by telling him “I encourage you to stay,” would face felony charges. The same goes for mass protesters speaking out on immigration. Conservative justices including Justice Kavanaugh and Gorsuch are regarded as staunch supporters of First Amendment rights. However, it’s a complicated intersection: the Court’s recent record on immigration is concerning. For example, the Court’s failure to uphold the freedom of exercise clause regarding the Muslim travel ban in Trump v. Hawaii indicates that judgment by the court may support a very broad interpretation of the IRCA’s encouragement clause. Immigration attorneys, who routinely represent undocumented clients, would be particularly affected by such a ruling. They could be trapped between providing accurate legal advice and committing a felony. Attorneys could be convicted for offering words of encouragement to a client or even counseling an individual to remain in the United States and fight an unjust USCIS decision. In other words, immigration attorneys could be prosecuted just for doing their jobs.

If the Supreme Court rules in favor of the government in United States v. Sineneng-Smith, the Trump administration could utilize the ruling to further their anti-immigrant agenda. Immigration attorneys representing undocumented people would be nearly incapacitated. More broadly, this administration has criminalized a number of outspoken immigrant activists. Under certain possible readings of the encouragement provision, federal officials could arrest individuals for speaking out against laws they oppose: speech to which the First Amendment has traditionally offered the highest possible protection. Proclamations of support from religious organizations could also become criminal. Additionally, the administration could weaponize the ruling against sanctuary cities across the United States. The administration could prosecute certain state and local officials for their mere support of such policies. Political candidates in opposition to this administration could theoretically even be in jeopardy, too.

The encouragement clause must be struck down by the Supreme Court as overbroad; if not, the justices will have established a precedent for the government to erode every American’s First Amendment rights.