Whether the First Amendment prohibits the government from making it a crime to “encourage or induce” a non-citizen to enter or reside in the United States unlawfully.
The amicus brief of the ACLU, Rutherford Institute, SEIU, and ACLU of Northern California, argues that the challenged provision of the Immigration and Nationality Act—making it a crime to “encourage or induce” a non-citizen to enter or reside in the United States unlawfully—criminalizes mere advocacy of unlawful conduct, which is protected speech. The brief provides examples of historical and contemporary civil disobedience movements—including the Civil Rights Movement—in which a critical element of the movement is encouraging people to violate unjust laws. The brief notes that the First Amendment does not countenance broad criminal prohibitions on such advocacy of civil disobedience. Accordingly, this provision of the INA, which is not a narrow criminal solicitation prohibition, should be struck down as unconstitutional.