//  11/2/17  //  In-Depth Analysis

By Daniel I. Morales, Associate Professor of Law, DePaul University College of Law 

A federal criminal statute makes it a felony to “encourage or induce” a noncitizen “to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.” Is this criminal law void under the First Amendment? A Ninth Circuit panel (Reinhardt, Tashima, Berzon) invited interested parties to weigh in on the question—and they did, filing nine briefs on behalf of a variety of organizations. Nearly all of these amici curiae (friends of the court) encouraged it either to strike the statute from the books on First Amendment grounds, or to adopt various constructions to save it from unconstitutionality.

Why the Statute is Unconstitutional

In my view, this statute has got to go. As a matter of established First Amendment doctrine, it captures (and criminalizes) far too much protected speech. “Encouraging,” in particular, is fatally overbroad.  As a number of amici point out, “encourage” in its ordinary usage means “to give courage, confidence, or hope.” A wide variety of legal advice and immigrants’ rights advocacy easily falls within the statute’s facially-broad ambit. Indeed, the government has already successfully prosecuted a woman for “encouraging” her undocumented housekeeper to stay in the United States. The crime? This now-felon told her housekeeper, accurately, that “if you leave the [United States] they won’t let you back.” It does not require a master class in First Amendment law to see why that is deeply troubling.

Thus far, immigration lawyers and immigrants’ rights advocates and organizations have not been targeted for enforcement. But the empowerment of a radical anti-immigrant fringe in the White House, and the consolidation of that fringe in the Republican mainstream, make this somewhat-dormant section of the Federal alien smuggling and harboring statute a dangerous weapon in our new political climate. To see why, consider the character of the immigrants’ rights movement. The immigrant advocacy organization United We Dream gives courage to undocumented noncitizens by urging that they are “here to stay”—even though Donald Trump rescinded DACA, the basis of many DREAMers’ legal status. Religious organizations inspired by the Christian tradition of “radical hospitality” give hope to immigrants that they can live a life free of fear in in the church’s embrace. Academics like me have published law review articles that might be construed to give confidence to undocumented noncitizens that their unlawful actions might be justified because such laws may not legitimately proscribe their actions .

In short, the immigrants’ rights movement seeks to give “courage, confidence, and hope” to immigrants; to show that immigrants belong—irrespective of federal immigration status—because they are human beings, workers, friends, neighbors, or children of god. These humane statuses, immigrant’s rights groups often argue, should override the government’s narrow characterization of such immigrants as “deportable aliens.” It would be unconscionable to conclude that all of this speech can be declared a federal crime—or can even be cast into a gray zone, where speakers open their mouths on pain of potential prosecution. The First Amendment forbids such rough treatment.

Of course, short of invalidation, limiting constructions might go a long way to curing the statute’s coverage of all this clearly-protected expression.  In their amicus brief, Kari Hong and Steven Manning—representing a coalition of Oregon faith-based immigrants’ rights organizations—invoke legislative history to argue that the statute should be limited by imposing an  “actus reus involving an independently improper action.” In practice, this would mean that speech “encouraging or inducing” immigrants to stay in the country is criminal only if it advances criminal or fraudulant actions, like assisting a noncitizen in obtaining a Social Security card unlawfully. Eugene Volokh, writing in support of the government, offers a clearer and narrower alternative meant to save the statute from the First Amendment.  Volokh asks the court to limit the statute to speech that constitutes “solicitation of criminal conduct”—and additionally to require that a defendant “directly, specifically and purposefully encourage people to commit a particular immigration crime.”  Importantly, this construction excludes from the statute’s scope any speech which encourages or induces—specifically or generally—civil immigration violations, like overstaying a visa or remaining present without permission.   

But that’s not enough for me, or for the ACLU. First, as Volokoh concedes, abstract advocacy of crimes is protected speech, and it is difficult ex ante to draw clear lines between protected abstract advocacy of criminal conduct and unprotected criminal solicitation. That courts can ultimately distinguish criminal solicitation from abstract advocacy in a principled way, case by case, is cold comfort to potential speakers. After all, each speaker would have to vindicate their view that they fall on the right side of the line by fighting a criminal prosecution. In the face of such an ordeal (and such legal uncertainty), the ACLU is right that rational speakers will respond by not speaking at all, and so Volokoh’s narrow construction is likely to chill protected, socially valuable speech.  As the ACLU notes, Volokh’s rule could facilitate prosecution of a person who “reassure[s] a friend that crossing a border without authorization is the best course of action to avoid death or torture in her home country.” This ought to be unacceptable in the United States, and so the court should strike the statute down as fatally overbroad.  

Crimes of Migration & the First Amendment

Apart from the statute’s failure as a matter of overbreadth doctrine, it also fails on a second level.

The immigration crimes of illegal entry and re-entry are crimes that cause virtually no material harm. For that reason, encouraging them ought not be criminalizable at all. Crimes of migration, as I call them, are principally crimes against a political theory. In particular, they violate the (widely-held!) theory that states have the right to exclude any noncitizen they chose from their borders for virtually any reason—and without that noncitizen’s consent. Alienage is an element of these crimes: citizens cannot be prosecuted for crossing the border uninspected. This fact underscores the ultimately political core of crimes of migration. If crimes of migration were criminal for nonpolitical reasons, say, because of the harms unauthorized border crossing imposes on property or government administrative resources, the statute should apply to citizens and noncitizens alike, since any person can cause the harm. That only noncitizens can be criminally prosecuted for undertaking these acts shows that they are designed to defend a—contestable—theory of national sovereignty. I and others have argued that these crimes are illegitimate for this reason, and for others elaborated in mainstream criminal law theory. To me, the fundamentally political character of these crimes makes it uniquely problematic to criminalize speech soliciting them. In these circumstances, there is a kind of double-barreled First Amendment problem with the “encouraging” statute—it criminalizes political speech which encourages “crimes” that have a political valence.  This problem is entirely absent when government criminalizes speech that solicits the (mostly violent) crimes that Volokh emphasizes in his brief.  

The legitimacy of crimes of migration, and the criminalization of speech soliciting them, grows even more dubious when we consider that deportation in response to a crime of migration is a perfect eye-for-an-eye punishment for that act. This renders any criminal stigma and punishment imposed for immigration crimes on top of deportation perfectly gratuitous as a retributive matter. As I have written elsewhere:

Deportation for a crime of migration is like an eye for an eye or a tooth for a tooth. . . . Consider how deportation functions as a punitive measure imposed on someone who has committed a crime of migration: it forcibly unwinds the wrong the migrant committed-crossing the border without permission-by having the deportee recross the border in the other direction at the state's behest-that is, without the perpetrator's permission. This is a symmetrical punishment for the act of migrating without permission; it imposes on the violator to the precise degree that the violator imposed on the State. It is perfect conceptually for achieving this symmetry between wrong and recompense; it is perfect in practice because it erases the wrong in a way that is rarely achieved where criminal punishment is imposed.

While I understand, of course, that case law permits criminalization of criminal solicitation, my point is that doing so in the immigration context poses unique problems. And since solicitation doctrine is the firmest footing on which the “encouraging” statute rests, these doubts ought to tip the scales in favor of junking the statute rather than re-writing it.   

Broader Issues Raised by This Case

I’ll conclude by taking a step back to consider some broader points.

First, it’s essential to keep in mind the outrageous scope of the federal government’s coercive power where immigration and criminal law combine—a situation crying out for a judicial corrective. The case for applying the very strictest scrutiny here is much stronger than in run-of-the-mill clashes between the First Amendment and criminal law. That is so because criminal immigration law represents national coercive power at its most-towering height. It is well known that substantive criminal law is under-policed by the courts—as is immigration law—and both kinds of unconstrained power are combined in the “crimmigration” context. Less obvious is the undemocratic—indeed, purely authoritarian—relationship between immigration law and its noncitizen objects. Immigration law coerces exclusion and compliance out of people who have had no say in creating the laws they are subject to, nor any hope of changing them directly at the ballot box. These facts mean that the immigrants’ rights movement relies to a unique degree on persuading political proxies to enact change on noncitizens’ behalf. The criminal prohibition at issue here cuts to the heart of this citizen-alien political alliance. It does so by facially criminalizing the political speech of the citizen political proxies (including many amici) that immigrants need in order to change the exclusionary and violent American immigration regime. 

Moreover, to succeed, such movements may sometimes need to rely on illegal action, like other social movements in the past (including abolition). As I argued in my article “Illegal” Migration is Speech, the acts of crossing the border without permission or deliberately overstaying a visa can be understood as protests, following prominent strands of First Amendment theory. What’s more, these disobedient, nonviolent acts may be essential for raising the immigration sanctuary consciousness that now permeates many jurisdictions and informs the hearts and minds of many amici

A final, related point: our understanding of the “rule of law” here should reckon with the fact that sometimes, some laws must be broken for important political and social change to occur. When it comes to corporate “civil disobedience,” we understand this in our bones. We celebrate business law breaking as “disruption;” part of capitalism’s vaunted “creative destruction.” Following the rules, and asking for permission, is viewed as capitulation to illegitimate political cartels. But when it comes to social change, culture and law tend to take a much more authoritarian line. We seem to imagine that social change happens in antiseptic, seminar-room-style conditions, even though all the great American social movements—abolition, women’s suffrage, civil rights, gay rights—embraced a wide array of law-breaking tactics to force change (smuggling slaves, voting illegally, ignoring Jim Crow, having illegal sex). Those tactics were essential to the success of these movements. 

If our legal culture can accept that Uber needs to break or bend the law to disrupt taxi cartels, then we should also be able to accept that illegal, nonviolent action may sometimes be necessary to make change in the social sphere. A truly robust First Amendment that allows “all possible objectives, all possible versions of national identity, [to] be rendered problematic and open to inquiry,” as Robert Post thinks it ought to, needs to find a way to accommodate the fact that nonviolent law-breaking changes the world.  A court sensitive to the relationship between the First Amendment’s purpose to facilitate peaceful change in law and policy must be attuned to these dynamics and make space for the anarchic quality of real-life social movements. This space for dissent is even more important to nurture now because the capacity of the U.S. government to coerce and to surveil has reached nearly Orwellian levels. In many cases, immigration agencies are at the leading edge of this brave new world of all-seeing state power.

Conclusion

Resolving the case at hand requires nothing so radical, however. Black-letter overbreadth doctrine—which prohibits statutes from crimalizing too much protected speech in an effort to get at unprotected speech—provides a clear doctrinal path to invalidating this criminal statute. There are also numerous policy reasons for the Ninth Circuit to take this more aggressive approach, rather than substantially narrowing the statute, as some friends of the court have suggested. Invalidation would, additionally, usefully limit the ability of the government to tax speech about immigration law, a small comfort in today’s nativist political climate.  


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