Jackson schools Barrett about what it means for people who ‘operate daily in the shadow of the law’ in SCOTUS ruling against immigration fraudster

Left: Justice Amy Coney Barrett (via Erin Schaff/AFP/ Getty Images). Right: Justice Ketanji Brown Jackson. (via Patrick Semansky/AP).

Justice Amy Coney Barrett led a seven-member majority of the United States Supreme Court to reject a constitutional challenge to a criminal statute Friday and hold that encouraging someone to violate immigration law is not protected by the First Amendment.

Justice Ketanji Brown Jackson responded with a biting dissent that reduced Barrett’s opinion to “spin,” threw Barrett’s words back at her, and provided a lesson about the law can affect the less powerful.

The case involved a fraudster sentenced to 20 years in prison 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.”

The convicted man, Helaman Hansen, won an appeal in the U.S. Court of Appeals for the Ninth Circuit by arguing that his statements to the immigrants are protected by the First Amendment, and that the statute relied on by prosecutors was overly broad. Under standard constitutional principles, a criminal statute would be void as overly broad if it does not define prohibited behavior narrowly enough and risks criminalizing behavior that is legally protected.

Justice Amy Coney Barrett wrote for the Court’s majority to reverse the Ninth Circuit’s ruling. Barrett said that the statute at issue — which prohibits speech that “encourages or induces” breaking the law regarding “bringing in an harboring certain aliens” — did not offend the Constitution.

Barrett reasoned that the words “encourage” and “induce” have “well-established legal meanings” and that interpreting the statute in a “specialized, criminal-law sense” protects it from overbreadth.

Despite the many examples of protected speech that could risk prosecution under the statute raised at oral arguments, Barrett was unwilling to acknowledge any real risk that well-meaning citizens would be subjected to criminal charges under the questionable law.

Barrett wrote that the Court does not believe there is a risk that the statute will “produce the horribles [Hansen] parades.” The justice contrasted what she called the “plainly legitimate sweep” of the statute, referring to its use in prohibiting things like fraudulent marriages and illegal transportation of immigrants, with the risk of its use to criminalize innocent speech.

“When we turn to the other side of the ledger, we find it pretty much blank,” wrote Barrett bluntly as she noted that Hansen failed to produce any evidence of prosecutions for overbreadth under the law.

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