SCOTUS considers of Helaman Hansen First Amendment arguments

Left: Former President Donald Trump delivers a speech at the Ellipse on Jan. 6, shortly before his mob of supporters ran riot inside the U.S. Capitol. (Photo by Tasos Katopodis/Getty Images). Right: Helaman Hansen via KCRA/YouTube screengrab.

The Supreme Court considered Monday whether it should be a federal crime to encourage someone to remain in the U.S. illegally — or whether such speech is protected by the First Amendment.

As they sorted through their analysis in the case of United States v. Hansen, the justices raised hypotheticals about encouraging prostitution, drug dealing, vaccine-mandate protests, and even suicide — but they left out one highly-relevant example: Donald Trump’s public statements on January 6, 2021 that preceded the riots at the U.S. Capitol.

The case before the court is an appeal of fraudster Helaman Hansen, who was convicted of multiple federal crimes for falsely promising hundreds of undocumented immigrants that they could become U.S. citizens by overstaying their visas, paying a fee, and using “adult adoption.” Hansen was convicted in 2017 of federal mail and wire fraud for his scheme and sentenced to 20 years in prison.

One of the statutes Hansen was convicted of violating is a subsection of 8 U.S.C. § 1324, the federal statute that prohibits “bringing in and harboring certain aliens.” The subsection being challenged by Hansen makes it a crime to “encourage or induce” a non-citizen to reside in the United States while knowing that it would be illegal for the non-resident to do so.

Hansen appealed, arguing that his statements to the immigrants are protected by the First Amendment, and that the statute criminalizing encouraging the overstay is overly broad. Hansen noted the disparity in penalties between the overstaying itself — which is a civil violation without any applicable penalty of prison time — and the encouraging of that overstay, which in his case resulted in the maximum ten-year penalty because he did so for financial gain.

As the justices noted during oral arguments, the Court’s ruling in the case has potential implications for everything from civil disobedience to nonprofit advocacy. First Amendment jurisprudence is clear that incitement of imminent lawlessness is not protected as “free speech,” but the line between “incitement” and “advocacy” is not always clear — and the justices now have the chance to carve out what kind of “encouragement” can be constitutionally criminalized without offending the First Amendment.

SCOTUS considers of Helaman Hansen First Amendment arguments

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