Federal Appeals Court Strikes Down Criminal Law Impacting Free Speech of Allies of Undocumented Individuals

February 11, 2022 9:45 am

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NEW YORK — The Ninth Circuit Appeals Court yesterday struck down criminal law 8 U.S.C. § 1324(a)(1)(A)(iv), which makes it a felony to encourage or persuade an undocumented person to come to, reside in, or stay in the United States. The court held that the law is overbroad under the First Amendment because it reaches too much protected speech–including simply saying “I encourage you to stay” to an undocumented individual. The decision comes in a lawsuit in which the ACLU, as amicus, filed a brief and argued before the panel that the law was overbroad.

The court rejected the government’s argument that the law is merely an aiding and abetting statute. Instead, it held that the law reached protected speech, including “encouraging an undocumented immigrant to take shelter during a natural disaster, advising an undocumented immigrant about available social services, telling a tourist that she is unlikely to face serious consequences if she overstays her tourist visa, or providing certain legal advice to undocumented immigrants.” This criminal law disproportionately impacted allies of undocumented individuals and people of color who are already disproportionately policed. A previous ruling by the Ninth Circuit that this law is overbroad was reviewed by the Supreme Court.

Vera Eidelman, staff attorney with the ACLU Speech, Privacy and Technology Project, had the following reaction:

“This victory will have real impact, ensuring that everyone from concerned citizens who criticize or warn about ICE raids to pro bono attorneys who host free legal clinics for undocumented immigrants no longer need to fear criminal prosecution as a result of their speech.”

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