Questions of legal and illegal immigration are at the forefront of public conversations these days. What should the government’s response be to those who are working in the United States without the proper legal documentation? These are sizable, challenging questions that require true leadership to answer.
But answering them — in whatever direction — shouldn’t require hobbling the First Amendment. And that’s why a recent ruling by U.S. District Judge Carlos Murguia makes a valuable statement.
Current law, believe it or not, makes it a crime punishable by prison time if someone "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." Even more time is added if the person accused did do "for the purpose of commercial advantage or private financial gain." (A hat tip to KCUR radio for the quotes from the statute.)
Two undocumented immigrants working in Lawrence, Jose Felipe Hernandez-Calvillo and Mauro Papalotzi, were convicted under the law. Murguia tossed that conviction.
Why? It appears that the government was prosecuting people under the law if they simply offered a job to an undocumented person. (Several others were prosecuted in the case that involved these two men, and many pleaded guilty.) The 9th U.S. Circuit Court of Appeals previously found that the law involved was unconstitutionally overly broad, and Murguia found the court’s reasoning persuasive.
Here’s our take. When dealing with immigration, it makes sense to investigate — and prosecute, when necessary — employers who depend on undocumented labor. They are creating conditions that can be used to exploit people and undermine workplace protections.
But we shouldn’t have to gut the First Amendment to do so. Given the current debate, much political speech could conceivably be criminalized under this very law. After all, if someone calls for humane treatment of immigrants at the border, is that person encouraging or inducing immigrants to come to the United States? A case could be made.
We need a robust public discussion, cross-party collaboration and real investments from the authorities to tackle this country’s challenges with immigration. Such work requires both ideological sides to lay down their arms and come together for the good of the country.
What they can’t do, however, is trample on our fundamental freedoms. The right to free speech matters. This ruling recognizes that.