The Supreme Court said Friday it will hear arguments over whether a law prohibiting people from encouraging illegal immigration is so broad and vague that it would criminalize protected First Amendment speech.
The case could be the next test for Justice Neil M. Gorsuch, a Trump nominee to the court who has broken with the other GOP-appointed justices and sided with the Democrats on several other cases striking down vague laws.
Administration lawyers say the law can be narrowly read to target unscrupulous lawyers and others who dupe migrants into entering or staying in the U.S. illegally.
But the 9th U.S. Circuit Court of Appeals disagreed, in a 3-0 ruling last year. The judges said the law could sweep up activities ranging from a family member encouraging another to stay in the country illegally, or even taking to social media to urge illegal immigrants to stay and fight for legal status.
“The foregoing examples are not some parade of fanciful horribles. Instead, they represent real and constitutionally-protected conversations and advice that happen daily,” Senior Judge A. Wallace Tashima, a Clinton appointee to the court, said in the opinion.
He pointed out that merely being in the country without authorization is not a crime.
Judge Tashima was joined on the panel by another Clinton appointee and an Obama appointee.
At issue is what the law meant when it outlaws encouraging or inducing illegal migration.
The Trump Justice Department says those words can be seen to apply only to actions, rather than to words, which would leave people free to exercise their First Amendment rights while still prohibiting behavior such as lawyers who charge clients money to help them remain in the country illegally.
The Trump lawyers pointed to another circuit court that said the smuggling statute could be more narrowly read.
The administration says the inducement statute fills an important gap in smuggling laws. Other sections criminalize harboring or transporting illegal immigrants.