The U.S. Supreme Court heard oral arguments yesterday in United States v. Hansen, a case that asks whether a federal law that criminalizes the act of encouraging or inducing unlawful immigration violates the First Amendment. In the run-up to the oral arguments, free speech advocates lined up overwhelmingly against the law, with the Foundation for Individual Rights and Expression, the Cato Institute, and the Electronic Frontier Foundation among the groups who filed amicus briefs urging the law's invalidation. Alas, judging by the tenor of the oral arguments, a majority of the Court seemed disinclined to adopt that sort of broad free speech stance in this case.
At least one justice, however, did seem quite open to overruling the law as an overbroad restriction that violated freedom of speech. "Under this statute," observed Justice Sonia Sotomayor, "we're criminalizing words related to immigration. And I thought there were only certain statutes that were immune to First Amendment challenges," such as laws governing "obscenity" or "fighting words," she said. "Otherwise, everything else is subject to the First Amendment and strict scrutiny. So why should we uphold a statute that criminalizes words?"
