Pirate's Cove

I’ve mentioned the law, 8 Us Code 1324, many times. It’s about people actually sheltering, harboring, etc, illegal aliens. The ACLU has spun the entire thing into a free speech issue and wants it declared unconstitutional.

Under This Law, Encouraging Undocumented Immigrants to Seek Shelter Could Be a Crime

As wildfires raged across Northern California last week, Sen. Kamala Harris (D-Calif.) took to Twitter to encourage those in need to seek shelter, even if they didn’t have lawful immigration status.

Senator Harris’s desire to protect all her constituents is admirable. It also may be a crime.

A section of the federal Immigration and Naturalization Act states that any person who “encourages or induces” a non-citizen to “come to, enter, or reside” in this country in violation of the law is guilty of a felony, and may be imprisoned for up to five years. For a person to be found guilty, the prosecution must show that the person knew or recklessly disregarded the fact that the non-citizen’s action was unlawful. Harris’s tweet arguably “encouraged” undocumented immigrants to “reside” in the country. That’s precisely the type of speech a zealous federal prosecutor could target for criminal sanction under this law.

The ACLU trots out examples of people speaking, such as

• A woman who tells her undocumented housekeeper that she should not depart the U.S. or else she won’t be allowed back in. (A former U.S. Customs and Border Protection official stood trial in just such a case.)
• A university president who publishes an op-ed arguing that DACA recipients should consider her campus to be a “sanctuary” after their deferred action expires.
• A community organization that announces its shelters and soup kitchens are open to homeless undocumented youth in their area.

The only one that might possibly violate Section 1324, and, specifically, (1)(a)(iv) “encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law;” is the second one. Here’s what the ACLU is doing about it

This law clearly oversteps the First Amendment, which does not allow the government to criminalize these kinds of speech. The Supreme Court has stated clearly: “The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it.” That’s why the ACLU yesterday submitted an amicus brief to the U.S. Court of Appeals for the Ninth Circuit arguing that this law is unconstitutional.

The government can only prohibit “unprotected” speech, like incitement to violence or speech that itself constitutes a crime, like harassment. Speech “encouraging” immigration violations does not qualify. This makes the law we challenged “presumptively unconstitutional,” because it regulates the content of things we can say.

If you entice someone to commit suicide, you can be held responsible for that, as Michelle Carter found out. The ACLU is going specifically after (1)(a)(iv), as the amicus brief shows.

The ACLU filed its brief in a criminal case against Evelyn Sineneng-Smith, an immigration consultant from San Jose, California. Ms. Sineneng-Smith was convicted in 2013 for filing labor applications for clients she knew were not eligible for green cards at the time. Despite the fact that all the information Ms. Sineneng-Smith filed was accurate — including disclosure of the fact that her clients had been in the country illegally for years — she was convicted of “encouraging or inducing” her clients to remain in the U.S. She has appealed her conviction.

Except, that’s not actual free speech. She took action. Unlawful action, which was also fraud. The ACLU is playing games in their attempt to protect people who have voluntarily entered the United States in an unlawful manner. Not surprising in the least.