The Supreme Court Tackles the First Amendment Right To Encourage Illegal Immigration

Federal law prohibits the act of encouraging or inducing unlawful immigration for private financial gain. Later this month, the U.S. Supreme Court will hear oral arguments in a case, United States v. Hansen, which asks whether that law should be struck down as an unconstitutional infringement on freedom of speech.

The law deserves to die on First Amendment grounds. As the Rutherford Institute and the Foundation for Individual Rights and Expression observe in an amicus brief they filed in the case, “expressing disagreement with laws through advocacy of their violation…is part of a deeply rooted American tradition.” That tradition includes both the abolitionists who urged defiance of proslavery statutes in the 19th century and the civil rights activists who championed nonviolent resistance to Jim Crow in the 20th century. “Criminalizing mere encouragement of unlawful conduct,” the brief points out, “would chill speech essential to movements advocating political and social change.”

Here is a modern hypothetical that further illustrates the point. Assume that a self-described advocate of an open-borders immigration policy writes a book urging civil disobedience in the face of what the author argues is an unjust immigration regime. The book directly calls for undocumented immigrants to remain in the United States illegally and to fight for their rights.

The sale of such a book would seem to violate the plain text of the federal prohibition on encouraging illegal immigration for financial gain. Yet the First Amendment just as clearly protects the author’s right to write and sell such a book. In that sort of contest be