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A case on free speech and immigration at the Supreme Court

SCOTT DETROW, HOST:

Tomorrow, the Supreme Court will hear arguments in United States v. Hansen. At the heart of the case is a federal law that bars someone from encouraging or inducing unlawful immigration to the U.S. And that wording - encouraging or inducing - gets to the broader question the court will examine - whether the law violates the free speech rights established in the First Amendment of the Constitution. And given that potential impact, we wanted to learn more about this case, so we called Amanda Shanor. She is a constitutional law scholar whose work focuses on the First Amendment, and she currently teaches at the University of Pennsylvania. Professor Shanor, welcome to ALL THINGS CONSIDERED.

AMANDA SHANOR: Thanks so much. It's great to be with you, Scott.

DETROW: So let's start with the details of the case that the justices will be hearing about. What happened, and what's the main question here?

SHANOR: So the case is about a man, Helaman Hansen, who, for about four years, falsely promised undocumented immigrants that they could, if they paid him, become U.S. citizens through what he called an adult adoption program. But that program was actually a ruse that would not lead to citizenship. So he was charged under the law that you said that prohibits or criminalizes encouraging or inducing unlawful immigration.

DETROW: Now, is this one of those cases that isn't really about that violation specifically? Because it sounds to me - I hear that, and it seems like - well, that seems pretty clear-cut fraud. It seems pretty clear-cut that this person broke the law.

SHANOR: Yeah.

DETROW: Or is this more about what that implies on broader questions?

SHANOR: Exactly. It's about what it implies on broader questions, and the case really has the potential to have a pretty significant effect on the future of First Amendment law. So I guess I should explain. So it's a First Amendment challenge to this law that prohibits encouraging or inducing people either to unlawfully come to the United States or to reside in the United States. And the challenge brought by Hansen is actually under something called the overbreadth doctrine. And what the overbreadth doctrine is - it's an important First Amendment doctrine that allows somebody to whom the law could be constitutionally applied to challenge it because the law is so broad that it actually criminalizes a whole set of other protected speech.

DETROW: OK. So me saying to you, give me money, and I'll give you something that I have no intention of giving you, again, seems like it's on the more clear-cut end of things. What is a hypothetical example that lawyers have been talking about as this case has made its way through the courts that is more murky and that might be up in the air?

SHANOR: Well, so the law criminalizes encouraging someone to, like I said, either come or reside in the United States unlawfully. So that might include, for example, a grandmother who tells her undocumented grandchild that she doesn't want the child to leave her or a doctor who advises a patient with an expiring visa that she needs medical treatment that's only available in the United States. There's a whole host of examples like that that seem like, on a normal reading - just a straightforward reading of encouragement could be captured by the act and seem like they would be protected by the First Amendment.

DETROW: What is the federal government's argument against that framing?

SHANOR: So the federal government has taken a different position in the courts of appeals than it did originally at Hansen's trial. It now says that the law - specifically encourage or induce, that language - means soliciting or aiding and abetting, which are terms of art in criminal law that are much narrower and wouldn't, for example, capture something like the grandmother or the doctor example. And so they say that the court should read the law in a narrower way that wouldn't raise all of these First Amendment concerns that Hansen has raised, and therefore the court shouldn't strike down the law as unconstitutional.

DETROW: You talked about the big implications for the First Amendment. I mean, what's the wide range of outcomes that we could see here when it comes to how this could be applied, depending on what the justices decide?

SHANOR: Well, because this case has - well, so first, of course, it could bear on - you know, have effects on immigration enforcement. But it could have a bigger effect on the trajectory of First Amendment law with implications for dissent and incitement, solicitation and aiding and abetting liability - what's constitutional under those doctrines - as well as social media regulation. So, for example, aiding and abetting liability and incitement have exceptions from First Amendment law. And part of the question here is, how big are those exceptions? How much does the First Amendment protect or not?

And that could have big implications down the line for a whole host of things, but including even, you know, if former President Trump is indicted for incitement, the kinds of questions and the court's opinion here could bear on that. It could also bear on the scope of potential liability for social media companies. There's another couple cases before the court now that this case interacts with.

DETROW: Well, that leads to a question about this political moment and this particular court because we know that in the current makeup, you know, despite everything that Chief Justice Roberts wishes, this court has shown a willingness to overturn longstanding precedent. It does not shy away from broad and controversial rulings. Do you think there's a world where the court takes this case and uses it to issue pretty broad, new understandings of the First Amendment?

SHANOR: So I think that's the big question here. I mean, part of what we're going to see in this case is whether or not this newly configured court is going to stay with a set of earlier courts' trends to adopt ever more speech protective rules or if they're going to chart, potentially, a very different course. And I think we're going to have to wait and see. I think the only thing that we know for sure is that the argument on Monday will be very interesting, and I think that the opinion and resulting law will be important.

DETROW: OK. So I feel like experts like you always get annoyed when reporters like me say, well, what did you make of the oral arguments? What sort of tea leaves were there? So I'm going to be even more annoying and ask you before the arguments happened, what are the types of things that you will be on the lookout for as the justices ask their questions?

SHANOR: I expect to see the government really trying to get away from all of the hypotheticals about grandmothers and doctors and priests and lawyers that are certainly going to come up at argument. And so I think that they're going to say essentially, you know, you should read this law more narrowly and probably remand it - essentially make the case be much less important and much narrower than it was originally teed up. But I anticipate that a significant part of the court is going to be underwhelmed by the notion that mere encouragement alone could get you caught up in a criminal law that could send you to jail for five or 10 years. But it's hard to say, again, because, you know, this court has been known for making big moves, and this is an area that they could make big moves that would affect, you know, like I said, a very diverse set of possible cases in the future.

DETROW: That was Amanda Shanor, a constitutional law scholar whose work focuses on the First Amendment. She teaches at the University of Pennsylvania. Professor Shanor, thank you so much for talking to us today.

SHANOR: Thanks so much for having me. Transcript provided by NPR, Copyright NPR.