Statutes of Liberty: Is it a crime to provide legal advice? The Supreme Court weighs in

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Doran Shemin, Esq., and Laura Lorenzo, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

The First Amendment, despite what you may have read on the internet, is not an absolute defense against prosecution.

If you say, out loud, to your friend: “Let’s rob a bank!” and then take steps in that direction, the sentence “Let’s rob a bank!” can be held against you in a court of law.

Mr. Helaman Hansen did not know that fact, and he suffered the consequences. Mr. Hansen — a very bad guy, in our view — told more than four hundred victims that there was a (totally fictitious) adult adoption program, whereby, under (nonexistent) US immigration laws, they could obtain proper immigration status, and then (surprise!) conned them out of their money in order to enroll his victims in that program.

Mr. Hansen was duly convicted by a jury and sentenced to twenty years in prison. But, this being law, the story doesn’t end there. Hansen was convicted of fifteen counts of mail and wire fraud, but he was also convicted on two counts of encouraging or inducing an alien to come to, or reside in the United States, despite knowledge of illegality. Hansen appealed his conviction under the ‘encouraging or inducing’ statute, arguing that the statute, as written, violates the First Amendment by criminalizing protected speech.

On Monday, the Supreme Court heard oral argument, and Mr. Hansen’s case did surprisingly well. But, because this is law, let’s look first at the statute. It reads, in relevant part:

“(A) Any person who-  […] (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;  […] shall be punished[.]”

As applied to Mr. Hansen, a fraudster of remarkable inventiveness and ambition, the law seems reasonable. But the Supreme Court took Mr. Hansen’s overbreadth concern seriously. Justice Kagan asked whether lawyers, doctors, and teachers who provide services at the border were “encouraging or inducing” migrants to enter, in violation of the statute.

Justice Sotomayor asked whether a grandchild who tells her grandmother to stay in America might be guilty under the statute. Justice Kavanaugh suggested that organizations — like Catholic Charities Immigration Legal Services, for example — advise clients about the risk and benefits of remaining in the United States all the time, and surely — surely? — providing legal advice was not meant to be a prosecutable offense.

We don’t have a crystal ball, but we think that the statute is likely to be upheld. A narrow majority of the Court seemed to be satisfied that the government’s interest in discouraging criminal activity could  be achieved without chilling free speech in the legal, familial, or religious contexts in which prosecution has been rare.

We hope that you’ve enjoyed this explanation of United States v. Hansen. Be safe: don’t provide immigration advice to your friends and neighbors. Refer it to us.

As always, we’re happy to answer questions and comments!