Federal Court Uses First Amendment to Strike Down Law Blocking Encouragement of Illegal Immigration

Erin Schaff/File Photo/Reuters

On Tuesday, the 9th Circuit Court of Appeals ruled that a federal statute violated the First Amendment by criminalizing speech that encouraged people to illegally immigrate to the United States.

The ruling arose out of a legal battle surrounding Evelyn Sineneng-Smith, who, through her immigration consulting business, knowingly encouraged illegal immigrants to stay in the United States and apply for a labor certification process that she knew had expired.

Federal prosecutors argued that the conduct violated federal law but clarified that the statute itself only applied to “substantial assistance,” according to The Hill.

9th Circuit Judge A. Wallace Tashima argued that the statute was overly broad and unjustly burdened free speech.

Read part of his opinion below:

At the very least, it is clear that the statute potentially criminalizes the 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.” The statute thus criminalizes a substantial amount of constitutionally-protected expression. The burden on the First Amendment rights is intolerable when compared to the statute’s legitimate sweep.

According to The Hill, the Justice Department defended the law and argued that Congress justifiably criminalized assistance in immigration crimes:

“It is illegal to knowingly assist in the commission of violent crimes, drug crimes, and a variety of other crimes; it is only right that Congress, on a fully bipartisan basis, has criminalized assisting in the commission of immigration crimes as well.”

The ruling came as the 9th Circuit received heightened attention from President Donald Trump, who accused it of engaging in judicial activism that deterred law enforcement at the border.

Trump has recently harped on immigration, as thousands of migrants approached the border, and the administration has pushed for a southern border wall to halt the flow of illegal immigrants.

The administration took an especially strong stance against sanctuary jurisdictions — which refused to cooperate with federal immigration enforcement — but questions about private citizens’ actions hadn’t received as much attention.

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