At rallies across the country, community members have been chanting “Sí, se puede!” to demand that the U.S. fulfill its moral obligation to undocumented immigrants by expanding their access to life-saving medical care, job-loss benefits, driver’s licenses, and much more. However, this political advocacy — critical to our democracy’s debate about our immigration policies — could constitute a crime under federal law.

A section of the federal Immigration and Nationality Act (INA) known as the “encouragement provision” makes it a crime to “encourage” or “induce” a noncitizen “to come to, enter, or reside in the United States” unlawfully. But doesn’t the First Amendment give us the right to express our views on immigration, including by advocating for the rights of undocumented immigrants? Yes, it does, and that’s why we’re arguing before the Supreme Court to strike down this law.

Across the country, noncitizens, their families, lawyers, immigration rights advocates, and others risk violating the encouragement provision every time they debate U.S. immigration policies or even have a conversation about what resources or next steps may be available for people who are undocumented or no longer have a lawful basis for being in the U.S.

Free speech that might result in a person’s criminal prosecution under the provision include:

• A grandmother who tells her undocumented grandchild that she doesn’t want them to leave her.
• A doctor advising a patient with an expiring student visa that the patient needs medical treatment that is only offered in the United States.
• A priest informing a noncitizen parishioner whose employment authorization is ending about child-care and pantry resources that would support her remaining.
• A lawyer counseling an out-of-status noncitizen that she has the ability to become a lawful permanent resident if she does not leave the country.
• A professor advocating for DACA recipients to remain in the country no matter what so that Congress will be pressured to grant a path towards citizenship, while pointing out how her university’s policy of accepting DREAMers has enriched her teaching experience.

All that a prosecutor must prove for a conviction is that a person knew or recklessly disregarded the fact that the noncitizen’s entry or residence would be unlawful. While advocates for the provision say it will reduce unlawful entries, the government cannot enforce its immigration laws and policies by restricting constitutionally protected speech.

That’s the argument the ACLU is making this month in U.S. v. Hansen, a case that will decide whether the encouragement provision violates the First Amendment. In this case, a California man, Helaman Hansen, was convicted of violating the provision by encouraging two noncitizens to remain in the U.S. after their visas expired. Mr. Hansen’s words did not encourage a crime; residing in the country after one’s visa expires is merely a violation of civil immigration laws.

American Civil Liberties Union

United States v. Helaman Hansen | American Civil Liberties Union

This case is on whether the First Amendment permits criminal punishment of speech that merely encourages a noncitizen to remain in the United States.

The encouragement provision did not originate in law that infringed on the First Amendment, but it has been expanded over the years to criminalize speech merely advocating for actions that violate civil immigration laws, and are not crimes in themselves. The provision, which was introduced in its current form in 1986, was predated by historical efforts to limit foreign contract labor going back as far as the 1885 Foran Act. These earlier laws focused on prohibiting advertisements of U.S. job opportunities to noncitizens abroad. In 1952, the focus shifted to prohibiting encouraging or inducing noncitizens living outside the U.S. to unlawfully enter the U.S. It wasn’t until 1986 that Congress expanded the encouragement provision to also cover encouraging or inducing a noncitizen already present in the U.S. to remain in the country unlawfully.

In other subsections of this same federal statute, Congress criminalized harboring and transporting noncitizens who are in the United States unlawfully, or bringing noncitizens into the U.S. without authorization. While these actions are a legitimate target of government policy, the text of the encouragement provision and its expansion over the years now criminalizes everyday speech, including political advocacy, religious counsel, and legal support. Today, the provision has essentially no limits — it doesn’t require the speaker to intend a noncitizen to commit a crime, or that the criminalized speech be directed at a specific undocumented immigrant.

If the government is legally allowed to ban speech encouraging or inducing unlawful immigration, it would be empowered to ban or chill any speech that advocates violating any laws, including civil ones. Americans could lose the ability to advocate against any laws with which they disagree, including by proposing and organizing civil disobedience. Far from being a partisan issue, the fate of the encouragement provision is tied to the ability of people to criticize mask mandates, or to advocate for abortion rights. It is even linked to our access to quality journalism on pressing issues. The U.S. government has already used the provision as a justification to target journalists reporting on immigration — in particular, people arriving at the U.S.-Mexico border to seek asylum in late 2018 and early 2019 — leading to fear among journalists that they would be prosecuted for simply reporting the news.

Rather than resolve the many issues with our immigration system, the encouragement provision targets neighbors, advocates, journalists, immigration lawyers, and doctors for prosecution.

For years, the Supreme Court has recognized that the First Amendment protects us from criminal punishment for simply encouraging an unlawful act as long as we aren’t imminently inciting crime. The encouragement provision is unnecessary to serve any legitimate government interest in restricting immigration. It serves only to threaten the foundational free speech values that allow our democracy to permit dissent through vibrant and robust debate about the justness of the laws that govern us.

Over the past few months, 42 activists have been charged with “domestic terrorism” under Georgia state law. Their acts of “terrorism”? Alleged property damage and trespassing while protesting. These prosecutions exemplify a highly problematic trend of both the federal and state government: using domestic terrorism powers to punish dissent.

In Georgia, the arrested activists are part of a movement seeking to stop the construction of a $90 million police training facility located in a forest in Southeast Atlanta. Since late 2021, protesters under the banners of “Stop Cop City” and “Protect the Weelaunee Forest” have raised concerns over climate justice, displacement of Black communities, and increasing militarization of police forces. Protesters have camped out in the forest, staged marches, and hosted community events. At times, a small minority of protesters have allegedly damaged property.

Georgia police have responded with overwhelming and disproportionate force. Police killed one protester in January. They have arrested dozens more, including a legal observer associated with the Southern Poverty Law Center and the National Lawyers Guild. And prosecutors have levied severe charges under Georgia’s rarely-used domestic terrorism statute.

Until 2017, Georgia’s domestic terrorism statute criminalized acts intended to or reasonably likely to kill or injure at least 10 people. In the wake of the massacre of nine Black parishioners by a white supremacist gunman in Charleston, South Carolina, the Georgia legislature amended the statute to vastly expand its reach. The new law broadened the state’s definition of “domestic terrorism” to include certain property crimes committed with the intent to “alter, change, or coerce the policy of the government” by “intimidation or coercion.”

The amendment added a stigmatizing label and a harsher punishment — up to 35 years in prison — to property crimes that were already illegal, simply because of accompanying political expression critical of government policy. At the time of the amendment’s passing, the ACLU of Georgia and other civil rights groups objected that the statute could be weaponized to suppress protected First Amendment activity. These concerns are now a reality for “Cop City” activists.

The recent arrests demonstrate how overbroad laws like Georgia’s can be wielded to disproportionately punish people who express political beliefs. The “Stop Cop City” defendants are not accused of injuring, or even attempting to injure, anyone at all. At most, they are accused of damaging property, and some defendants appear to be accused of no more than misdemeanor trespass. But the state has chosen to press extreme charges of “domestic terrorism” because the defendants were also engaged in a political protest that challenges the increasing militarization of the police.

Prosecutors’ rush to slap “domestic terrorism” charges on protesters also threatens to chill the legitimate exercise of First Amendment rights by the protestors’ allies and others. Sometimes, during an otherwise peaceful political protest, a small group of individuals might throw objects or engage in vandalism. Law-abiding protesters in the vicinity risk being mistakenly (or carelessly) accused of participating in those actions — and being charged not just with a minor property crime, but with terrorism and a potential 35-year prison sentence. The danger of facing such severe charges can force protesters to make a difficult choice: surrender their cause or risk being labeled and locked up as a “terrorist.”

The events in Atlanta reflect a disturbing nationwide trend to respond to the very real problem of rising white nationalist violence with broad “counter-terrorism” measures that can stifle dissent. On the heels of the January 6 riots at the Capitol, President Biden announced an unprecedented nationwide strategy to combat domestic terrorism. The strategy left open the possibility of a new federal domestic terrorism statute, despite the dozens of existing laws that already criminalize hate-motivated and other violent acts. It did nothing to rein in national security policies that target Black and Brown communities and people engaged in dissent for unjustified surveillance, investigation, and prosecution.

New York Civil Liberties Union

The Capitol Attack Cannot be an Excuse for More Criminalization

Preventing another insurrection by a white supremacist mob is not a matter of giving the government more power to criminalize more behavior.

As states have increasingly passed “domestic terrorism” laws, the result is that a range of at times wholly innocent or constitutionally protected activity is penalized and stigmatized with a politically-charged label. Domestic terrorism laws — whether at the state or federal level — are not only unnecessary but dangerous. Prosecutors in Georgia should drop the domestic terrorism charges against the “Cop City” activists and stop using the statute to punish and chill legitimate political protest.