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On The Front Lines

Law Criminalizing Speech That ‘Encourages’ Immigrants to Remain in the Country Is So Broad That It Could Be Used to Punish Anti-Government Speech

WASHINGTON, DC —Denouncing government efforts to silence dissent and punish civil disobedience, The Rutherford Institute has asked the U.S. Supreme Court to strike down as unconstitutionally overbroad a federal statute making it a crime to “encourage” undocumented aliens to remain in the country. For example, legal advice given by an immigration attorney or a plea from a grandmother to her grandson not to abandon her could be considered criminal activity under this law. In an amicus curiae brief filed in United States v. Sineneng-Smith in conjunction with the American Civil Liberties Union and the Service Employees International Union, Rutherford Institute attorneys argue that the federal law infringes on the First Amendment’s protection of freedom of speech and could eventually be used to punish anyone who urges resistance to government tyranny.

Affiliate attorneys Erin Glenn Busby, Lisa R. Eskow and Michael F. Sturley of the University of Texas School of Law Supreme Court Clinic assisted The Rutherford Institute and its coalition partners in advancing the arguments in the Sineneng-Smith amicus brief.

“This statute paves the way for the government to muzzle any nonviolent, political speech that challenges government injustice,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “This is exactly the kind of law that would have rendered countless Americans as criminals, from Revolutionary War patriots to Martin Luther King Jr., for encouraging resistance and civil disobedience in the face of government tyranny.”

Evelyn Sineneng-Smith is an immigration consultant in California, helping individuals and employers navigate the nation’s complex immigration system so that noncitizens can become lawful and productive residents in the United States.  In the course of assisting two undocumented workers and their employer with the process of obtaining a status that would allow the workers to remain and work in the U.S., Sineneng-Smith prepared and filed paperwork and applications that gave the workers a better chance of eventually obtaining permanent lawful residency status, although obtaining that status still depended on changes in the law extending the workers’ eligibility dates. The government eventually brought criminal charges against Sineneng-Smith for the help she provided, alleging that she had misled the workers to believe they would obtain permanent lawful residency status (although Sineneng-Smith asserted she warned the workers that changes to the law would still be required). 

Sineneng-Smith was charged with violating an immigration statute making it a crime to “encourage” or “induce” an alien to reside in the U.S. in violation of the law.  Sineneng-Smith argued not only that she had not misled the workers, but that the immigration statute’s ban on “encouraging” another to stay in the country in violation of the immigration laws violates the First Amendment’s protection of freedom of speech. At trial, her constitutional defense was denied and she was sentenced to 18 months imprisonment.  However, a federal appeals court reversed the conviction, ruling that the prohibition on “encouraging” was overbroad and criminalized speech that is constitutionally protected. In challenging the government’s appeal to the Supreme Court, The Rutherford Institute and its partners filed an amicus brief supporting Sineneng-Smith, arguing that the criminal prohibition on “encouraging” aliens to stay in the U.S. discriminates against speech on the basis of its viewpoint in violation of the First Amendment. 

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