The Washington PostDemocracy Dies in Darkness

Opinion How government casually violates the letter and spirit of the First Amendment

Undocumented immigrants approach a Customs and Border Patrol station after being apprehended at the U.S. border near Mission, Tex., on Feb. 10, 2021. (Sergio Flores for The Washington Post)
4 min

Unauthorized immigrants are a declining portion of the growing U.S. foreign-born population -- 30 percent in 2007, 23 percent in 2018. An earlier version of this column mistakenly referred to the U.S. population generally. This version has been updated.

As long as the awful law exists, concerning which the Supreme Court will hear oral arguments on Monday, be careful what you say to, or write about, unauthorized immigrants. Congress, in one of the federal government’s increasingly frequent offenses against the First Amendment, makes it a crime if one “encourages or induces an alien to come to, enter, or reside in” this nation in violation of federal law. Let the formulation of hypotheticals begin in order to illustrate the law’s unconstitutional vagueness and overbreadth.

Suppose a pediatrician says an unauthorized immigrant’s child needs medical care that is available here but not in the country from which the immigrant came. Has a crime been committed?

According to the Migration Policy Institute, approximately 11 million unauthorized immigrants have been here for almost two decades. They are a declining portion of the growing U.S. foreign-born population — 30 percent in 2007, 23 percent in 2018. And there is no reason to believe that Americans in their decency would tolerate the police measures that would be necessary to substantially reduce that number. Now, suppose you factually tell an unauthorized immigrant that his or her chance of being deported is small. Did you criminally “induce” that immigrant to “reside” here?

Seventy-eight percent of unauthorized immigrants have resided here for more than five years, the institute says; 19 percent for 10 to 14 years, 21 percent for 15 to 19 years, 22 percent for 20 or more years. Twenty-four percent have high school diplomas or equivalents; 18 percent have bachelor’s, graduate or professional degrees. Sixty-five percent are employed and 28 percent are homeowners. How many U.S. citizens, in their many interactions with these people over many years, could be said to have encouraged or induced any of them to reside here “knowing or in reckless disregard of the fact” that this is illegal?

The law in question provides enhanced penalties for people who encourage or induce illegal immigration “for financial gain.” Damon Root, who writes about legal matters for Reason magazine, published by the libertarian Reason Foundation, posits: Suppose an advocate of open borders writes a book arguing that restrictions on immigration are unjust and calling for unauthorized immigrants to remain, hopes for better policies and fights for their rights. Selling such a book, Root writes, “would seem to violate the plain text” of the law at issue in Monday’s oral arguments in the case concerning Helaman Hansen.

He was convicted, and given an enhanced sentence (240 months), for a fraudulent — and lucrative — plan that purported to enable undocumented immigrants to pay to become U.S. citizens. The U.S. Court of Appeals for the 9th Circuit vacated his conviction last year, endorsing his argument that the law is unconstitutionally overbroad and vague. The law at issue is ominously symptomatic of casual violations of the letter and spirit of the First Amendment.

In the years since the 2002 enactment of the McCain-Feingold campaign finance law, speech restrictions imposed or encouraged — sometimes that is a distinction without much difference — by government have become more common. McCain-Feingold’s purpose was to regulate the quantity of political speech: All campaign spending is, directly or indirectly, for the dissemination of political advocacy. Since then, and especially recently, government has become promiscuous and audacious in attempting to regulate speech.

The Department of Homeland Security failed to embed in American life a Disinformation Governance Board. But other government agencies have practiced what George Washington University Law School’s Jonathan Turley calls “censorship by surrogate” — by, for example, numerous “moderation” requests to Twitter, and perhaps Facebook and other social media. “Government,” says Turley, “cannot use private agents to do indirectly what it cannot do directly.”

In the name of public health, government has encouraged the suppression of certain views about vaccines, masks and the origins of the coronavirus. In the name of national security, government sought to discredit critics of the false theory that the surfacing of Hunter Biden’s laptop was a Russian intervention in the 2020 election.

After Silicon Valley Bank capsized, Sen. Mark Kelly (D-Ariz.) participated in a Zoom call with other members of Congress and Federal Reserve, Treasury and other officials. Rep. Thomas Massie (R-Ky.) says Kelly asked whether there was a program that could censor social media posts that, by sowing doubts about the banking system’s health, might cause bank runs. Kelly denies suggesting censorship. Perhaps there was a misunderstanding.

Given, however, the government’s recent attempts to shape the information ecosystem, and given the government’s slapdash criminalization of speech by means of the law the court will consider come Monday, wariness is prudent.