EFF to Supreme Court: Criminal Immigration Statute Threatens Free Speech Online

EFF is urging the U.S. Supreme Court to strike down a law that poses a serious threat to online speech by criminalizing speech that “encourages” unlawful immigration. EFF filed an amicus brief on behalf of itself and Immigrants Rising, the Internet Archive, and Daphne Keller.

The case, United States v. Sineneng-Smith, questions whether 8 U.S.C. § 1324(a)(1)(A)(iv) (“the Encouragement Provision”)—which makes it a felony to “encourage” an undocumented immigrant to enter or remain in the United States—violates the First Amendment. The accused, an immigration consultant charged under the Encouragement Provision, was convicted in the district court. However, the Ninth Circuit reversed her conviction, holding that the Encouragement Provision was facially unconstitutional. The court found that the statute was so overbroad that it would encompass speech ranging from “a loving grandmother who urges her grandson to overstay his visa” to a “post directed at undocumented individuals on social media” that encourages them to stay in the United States. As the court explained:

We do not think that any reasonable reading of the statute can exclude speech. To conclude otherwise, we would have to say that “encourage” does not mean encourage . . . At the very least, it is clear that the statute potentially criminalizes the simple words — spoken to a son, a wife, a parent, a friend, a neighbor, a coworker, a student, a client — “I encourage you to stay here.”

As our amicus brief explains, the Internet is full of protected speech that encourages immigrants to remain in the country, whether those immigrants are here lawfully or unlawfully. Social media users share posts that declare #HomeIsHere in support of undocumented youth. Services organizations direct immigrants to financial, educational, and health resources. Advocacy groups publish “know your rights” guides explaining that immigrants have the right to remain silent when questioned by immigration officers. Twitter, Reddit, and Facebook have each taken to their own platforms to express support for immigrants and oppose President Trump’s immigration policies.

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