Amicus Curiae Brief — United States, Petitioner v. Helaman Hansen

No. 22-179

In the

Supreme Court of the United States

UNITED STATES OF AMERICA,

Petitioner,

v.

HELAMAN HANSEN,

Respondent.

On Writ of Certiorari to the United States

Court of A ppeals For the Ninth Circuit

BRIEF OF AMICI CURIAE ELECTRONIC FRONTIER

FOUNDATION, IMMIGRANTS RISING, DEFENDING

RIGHTS & DISSENT AND WOODHULL FREEDOM

FOUNDATION IN SUPPORT OF RESPONDENT

David Greene

Counsel of Record

Mukund Rathi

Hannah Zhao

Electronic Frontier Foundation

815 Eddy Street

San Francisco, California 94109

(415) 436-9333

davidg@eff.org

Attorneys for Amici Curiae

318659

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . ii

STATEMENT OF INTERESTS OF

AMICI CURIAE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 3

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I.

THE ENCOURAGEMENT PROVISION’S

BROA D S W EEP T H R E AT ENS

THE SPEECH OF IMMIGR ATION

A DVOCAC Y A N D SERV ICES

ORGANIZATIONS ONLINE . . . . . . . . . . . . . . 6

II. PR O T EC T ED ON L I N E S PEEC H

A BOUT IMMIGRATION IS

ESPECIALLY VULNERABLE TO THE

ENCOURAGEMENT PROV ISION’S

VA G A R I E S BE C AU S E ON L I N E

SPEAKERS RELY ON NUMEROUS

RISK-ADVERSE INTERMEDIARIES . . . . . 15

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

ii

TABLE OF CITED AUTHORITIES

Page

Cases

Department of Homeland Security v.

Regents of the University of California,

140 S. Ct. 1891 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Doe v. Twitter,

558 F. Supp. 3d 889 (N.D. Cal 2021) . . . . . . . . . . . . . 14

Does 1-6 v. Reddit,

51 F. 4th. 1137 (9th Cir. 2022) . . . . . . . . . . . . . . . . . . 14

New York Times v. Sullivan,

376 U.S. 254 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Packingham v. North Carolina,

137 S. Ct. 1730 (2017) . . . . . . . . . . . . . . . . . . . . . . . . 3, 6

Reed v. Town of Gilbert,

576 U.S. 155 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Reno v. Am. Civil Liberties Union,

521 U.S. 844 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

United States v. Hansen,

25 F.4th 1103 (9th Cir. 2022) . . . . . . . . . . . . . . . . . . . . 4

United States v. Stevens,

559 U.S. 460 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

iii

Cited Authorities

Page

Universal Commc’n Sys., Inc. v. Lycos, Inc.,

478 F.3d 413 (1st Cir. 2007) . . . . . . . . . . . . . . . . . . . . 15

Woodhull Freedom Foundation v. United States,

948 F.3d 363 (D.C. Cir. 2020) . . . . . . . . . . . . . . . . . . . 14

Statutes

18 U.S.C. § 1595 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

18 U.S.C. § 2(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

47 U.S.C. § 230(e)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

8 U.S.C. § 1324(a)(1)(A)(iv) . . . . . . . . . . . . . . . . . . . . . . . 1, 3

Sup. Ct. R. 37.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Other Authorities

@JulianCastro, Twitter (Nov. 12, 2019, 3:06

PM), https://twitter.com/JulianCastro/status/

1194391098606665730 . . . . . . . . . . . . . . . . . . . . . . . . . . 5

@Twitter, Twitter (Jan. 28, 2017, 5:20 PM),

h t t p s : / / t w i t t e r. c o m / t w i t t e r / s t a t u s /

825513865794293761 . . . . . . . . . . . . . . . . . . . . . . . . . . 10

iv

Cited Authorities

Page

Aaron Mackey, The Fight to Overturn FOSTA,

an Unconstitutional Internet Censorship

Law, Continues, EFF (Sept. 15, 2018),

https: // w w w.ef f.org /deepl i n k s / 2 0 2 2 /0 9/

f i ght - ove r t u r n -fo st a - u nc on st it ut ion a linternet-censorship-law-continues . . . . . . . . . . . . . . 16

Abdul Rahman Al Jaloud, Hadi Al Khatib, Jeff

Deutch, Dia Kayyali, and Jillian C. York, Caught

in the Net: The Impact of “Extremist” Speech

Regulations on Human Rights Content (May

2019), https://www.eff.org/files/2019/05/30/

caught_in_the_net_whitepaper_2019.pdf . . . . . . . . 19

Aja Romano, A New Law Intended to Curb Sex

Trafficking Threatens the Future of the Internet

As We Know It, Vox, July 2, 2018, https://

w w w.vox.com/culture/2018/4/13/17172762/

fosta-sesta-backpage-230-internet-freedom . . . . . . 16

Alexis Ohanian, An Open Letter to the Reddit

Community, Reddit, Jan. 30, 2017, https://

w w w.reddit.com/r/ blog/comments/5r43td/

an_open_letter_to_the_reddit_community/ . . . . . . 10

Amanda Silberling, YouTube targets TikTok with

revenue sharing for Shorts, Partner Program

expansion, TechCrunch (Sept. 20, 2022),

https://techcrunch.com/2022/09/20/youtubetargets-tiktok-w ith-revenue-sharing-forshorts-partner-program-expansion . . . . . . . . . . . . . 14

v

Cited Authorities

Page

Associated Press, Arizona Border Activist Acquitted

of Harboring Immigrants, Nov. 20, 2019, https://

apnews.com/article/arizona-immigrationus-news-ap -top -news-az-state-w i re1e3943f0b4f64acfa01f524aeaab9bde . . . . . . . . . . . . . 12

Bennett Cyphers, The Bipar tisan Digital

Adver ti sin g Act Wo ul d Break Up Bi g

Trackers, EFF (June 23, 2022), https://www.

eff.org/deeplinks/2022/06/bipartisan-digitaladvertising-act-would-break-big-trackers . . . . . . . . 14

Bijan Stephen, Por n: You Know It When

You See It , But Can A Computer?, The

Verge, Jan. 30, 2019 https://www.theverge.

com/2019/1/30/18202474/tumblr-porn-ai-nudityartificial-intelligence-machine-learning . . . . . . . . . 19

Black’s Law Dictionary (10th ed. 2014) . . . . . . . . . . . . . 11

Ca sey New t on, Th e Tr aum a Fl oo r, T he

Verge, Feb. 25, 2019, https://www.theverge.

com/2019/2/25/18229714/cognizant-facebookcont ent -moderat or -i nt er v iew s -t rau ma working-conditions-arizona . . . . . . . . . . . . . . . . . . . . 17

Corynne McSherry, Platform Censorship: Lessons

From the Copyright Wars, EFF (Sept. 26, 2018),

https://www.eff.org/deeplinks/2018/09/platformcensorship-lessons-copyright-wars . . . . . . . . . . . . . 18

vi

Cited Authorities

Page

Craigslist, FOSTA, https://www.craigslist.org/

about/FOSTA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Daisy Jones, Vogue (Jan. 29, 2023), Instagram

Might Finally Be About to Free the Nipple. What

Took So Long?, https://www.vogue.com/article/

free-the-nipple-instagram . . . . . . . . . . . . . . . . . . . . . 16

Emily Vogels, et al., Teens, Social Media and

Technology 2022, Pew Research Center

(Aug. 10, 2022), https://www.pewresearch.

org/internet/2022/08/10/teens-social-mediaand-technology-2022 . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Greg McFarlane, How Facebook (Meta), Twitter,

Social Media Make Money From You,

Investopedia (Dec. 2, 2022), https://w w w.

investopedia.com/stock-analysis/032114/howfacebook-twitter-social-media-make-moneyyou-twtr-lnkd-fb-goog.aspx . . . . . . . . . . . . . . . . . . . . 14

Immigrants Rising, https://immigrantsrising.org/instate-tuition-tool/ . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Immigrants Rising, https://immigrantsrising.org/

legalintake/ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13

I m m i g r a nt s R i s i n g, R e s o u r c e s, ht t p s: //

immigrantsrising.org/resources/ . . . . . . . . . . . . . . . . 7

vii

Cited Authorities

Page

Informed Immigrant, Know Your Rights, https://

www.informedimmigrant.com/resources/knowyour-rights/know-your-rights/ . . . . . . . . . . . . . . . . . . 8

Jennifer M. Urban et al., Notice and Takedown

in Eve r yd ay Pr a c ti ce, Un iv. of Ca l.–

Berkeley P ubl ic Law Re sea rch Paper

No. 2755628 (March 22, 2017) . . . . . . . . . . . . . . . . . . 17

Kate Crawford and Tarleton Gillespie, What Is a

Flag For?: Social Media Reporting Tools and the

Vocabulary of Complaint, New Media & Society

(2014), https://pdfs.semanticscholar.org/96e8/

d4d6f325b9173fba4d17aadf1c5c6f48edbe.pdf . . . . . 17

NAKASEC, http://nakasec.org/hotline . . . . . . . . . . . . . 13

NAKASEC, Know Your Rights!, https://nakasec.org/

rights; https://nakasec.org/ko/rights . . . . . . . . . . . . . 8

Nat’l Immig ration Law Ctr., Health Care

providers and Immigrant Enforcement,

https://w w w.nilc.org/issues/immigrationenforcement/healthcare-provider-and-patientsrights-imm-enf/ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Nat’l Immigration Law Ctr., Know Your Rights,

https://www.nilc.org/get-involved/communityeducation-resources/know-your-rights/ . . . . . . . . . . . 8

viii

Cited Authorities

Page

Paige Collings, No Nudity Allowed: Censoring

Naked Yoga, EFF (Dec. 19, 2022), https://

w w w.eff.org/deeplinks/2022/12/no-nudityallowed-censoring-naked-yoga . . . . . . . . . . . . . . . . . 16

Rafael Carranza, Aid Volunteers Found Guilty

of Dropping Off Water, Food for Migrants

in Pr ot ec t ed Par t of Ar izo n a Deser t,

Arizona Republic, Jan 18, 2019, https://www.

azcentral.com/story/news/2019/01/18/no-moredeaths-volunteers-found-guilty-droppingwater-food-migrants-cabeza-prieta-refugearizona/2617961002/ . . . . . . . . . . . . . . . . . . . . . . . . . . 12

R e d d it , C a n u n d o c u m e n t e d p e o p l e f l y

within the US with a Mexican passport

and no visa? (posted September 17, 2022),

https: // w w w.redd it .com /r/i m m ig rat ion /

c om ment s / x g 8 2 f 9 /c a n _u ndo c u ment e d _

people_fly_within_the_us_with_a/ . . . . . . . . . . . . . . 10

R edd it , I m m ig r at ion Subr edd it , ht tp s: //

www.reddit.com/r/immigration/ . . . . . . . . . . . . . . . . . 9

S. Dixon, Number of monthly active Facebook

users worldwide as of 4th quarter 2022, Statista

(Feb. 13, 2023), https://www.statista.com/

statistics/264810/number-of-monthly-activefacebook-users-worldwide . . . . . . . . . . . . . . . . . . . . . 16

ix

Cited Authorities

Page

Sa ra h T. Rober t s, Meet th e Peo pl e W h o

Scar Themselves to Clean Up Our Social

Media Networks, Macleans, June 15, 2018,

https: // w w w.maclea ns.ca /opi n ion /meet the-people-who-scar-themselves-to-cleanup-our-social-media-networks/ . . . . . . . . . . . . . . . . . 17

Statista, Regional distribution of desktop traffic

to Reddit.com as of May 2022, https://www.

statista.com/statistics/325144/reddit-globalactive-user-distribution/ . . . . . . . . . . . . . . . . . . . . . . . 9

S t a t i s t a , Wo r l d w i d e v i s i t s t o R e d d i t .

com from December 2021 to May 2022,

h t t p s : / / w w w. s t a t i s t a . c o m / s t a t i s t i c s /

443332/reddit-monthly-visitors/ . . . . . . . . . . . . . . . . . 9

Taylor Lorenz, Zuckerberg Debates Immigration

with Facebook Commenters, The Hill, Sept. 1, 2017,

https://thehill.com/blogs/ballot-box/348865ma rk-zuckerberg- debates-immig rationwith-facebook-commenters . . . . . . . . . . . . . . . . . . . . 10

V isa Jou r ney, US Immi gr ati o n Fo r um s,

https://www.visajourney.com/forums . . . . . . . . . . . . . 9

1

STATEMENT OF INTERESTS OF AMICI CURIAE 1

Amici curiae represent a variety of stakeholders

united in their concern that the federal criminal prohibition

in 8 U.S.C. § 1324(a)(1)(A)(iv) silences constitutionally

protected speech, and if upheld here, will throw into

doubt the legality of multitudes of online speech about

immigration and directed at immigrants. Amici—a digital

rights advocacy organization, an immigrant services

organization, and free speech organizations—represent

both the speakers themselves as well as the intermediaries

that make such speech possible. Because of the statute’s

broad and ambiguous scope, amici—along with other

direct online speakers in support of immigrant rights

and the platforms that host such content—face the risk of

criminal liability.

The Electronic Frontier Foundation (“EFF”) is a

nonprofit organization that has worked for more than 30

years to protect free speech and civil liberties in the digital

world. EFF and its more than 38,000 active donors have

a powerful interest in ensuring that the Internet serves

as a venue for free speech and the open communication

of ideas for all users.

Immigrants Rising is a fiscally-sponsored project of

Community Initiatives, a nonprofit organization. Founded

in 2006, Immigrants Rising provides resources to empower

1. Pursuant to Supreme Court Rule 37.6, no counsel for a party

authored this brief in whole or in part, and no such counsel or party

made a monetary contribution intended to fund the preparation or

submission of this brief. No person other than the amici curiae, or

their counsel, made a monetary contribution intended to fund its

preparation or submission.

2

undocumented people to achieve their educational and

career goals through personal, institutional and policy

transformation. Immigrants Rising offers a website

aimed at undocumented people that provides information

on financial resources for higher education, building and

managing a business, and immigration legal assistance.

Defending Rights & Dissent (“DR&D”) is a national

civil liberties organization whose mission is to strengthen

our participatory democracy by protecting the right

to political expression. DR&D believes that today the

internet serves as our town square, where matters of

public concern are debated. It is vital to our democracy

that it remains open for the exchange of ideas and free

speech.

The Woodhull Freedom Foundation (hereinafter

“ Woodhull” or the “Foundation”) is a non-prof it

organization that works to advance the recognition of

sexual freedom, gender equality, and free expression.

The Foundation’s name was inspired by the Nineteenth

Century suffragette and women’s rights leader, Victoria

Woodhull. The organization works to improve the wellbeing, rights, and autonomy of every individual through

advocacy, education, and action. Woodhull’s mission is

focused on affirming sexual freedom as a fundamental

human right. The Foundation’s advocacy has included a

wide range of human rights issues, including reproductive

justice, anti-discrimination legislation, comprehensive

nonjudgmental sexuality education, and the right

to define ones’ own family. Woodhull is particularly

concerned with broad sweep of the Encouragement

Provision which criminalizes speech based on its content.

Since such content-based restrictions frequently target

3

sexually oriented expression, Woodhull fears that if the

Encouragement Provision is upheld, similar legislation

will be used to censor such expression, to the detriment

of Woodhull’s mission.

SUMMARY OF ARGUMENT

As this Court has recognized, the Internet is where

people “engage in a wide array of protected First

Amendment activity on topics as diverse as human

thought.” Packingham v. North Carolina, 137 S. Ct. 1730,

1735-36 (2017) (citation omitted). Unsurprisingly immigrant

rights advocates and services providers use the Internet

to share messages of hope and provide resources that

allow undocumented immigrants to make better lives for

themselves—all of which can be seen as “encouragement,”

and thus illegal, under the Encouragement Provision,

8 U.S.C. § 1324(a)(1)(A)(iv).

This brief focuses on how the Encouragement Provision

threatens constitutionally protected online speech. First,

the variety and prevalence of speech online supporting

immigrants and the ease of amplifying such speech

illustrates the Encouragement Provision’s uncertain and

overly broad sweep. Second, by prohibiting an enormous

amount of commonplace speech, the Encouragement

Provision also burdens the online platforms that host

this type of speech, exacerbating the censorial effect.

Given the vast amount of content even smaller platforms

handle, platforms face great difficulty in enforcing finely

drawn legal distinctions on a case-by-case basis. They will

thus be incentivized to censor a vast amount of protected

speech about immigration in order to manage their risk

of liability should they cross the uncertain line that is

“encouragement.”

4

This Cour t should aff i r m the Ninth Ci rcuit,

which correctly recognized the sweeping breadth of

speech, including commonplace statements, that the

Encouragement Provision encompasses: “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” and is unconstitutional.

United States v. Hansen, 25 F.4th 1103, 1110 (9th Cir.

2022).

ARGUMENT

Shortly after this Court heard oral arguments in

Department of Homeland Security v. Regents of the

University of California, 2 thousands of Twitter users

weighed in on the case using the hashtags #HereToStay

and #HomeIsHere. People from across the country tweeted

out in support of undocumented youth, emphasizing

that immigrants make the country stronger, that the

United States is their home, and that undocumented

immigrants should continue to reside here. Among them

was Julián Castro, former Secretary of Housing and Urban

Development and, at the time, a presidential candidate,

who shared:

Home is here.

Roots have been planted here.

2. 140 S. Ct. 1891 (2019).

5

Families have been created here.

Degrees have been earned here.

Dreams have been built here.

Futures are here.

#HomeIsHere.

And dreamers3 are #HereToStay

@JulianCastro, Twitter (Nov. 12, 2019, 3:06 PM).4

The Encouragement Provision makes tweeting this

message a federal crime. Moreover, the inherent nature of

social media means that a wide range of speakers beyond

Secretary Castro himself, including anyone who liked or

retweeted it or posted a supportive reply, and Twitter

itself, which provided the platform for this encouragement,

face a risk of criminal liability under the Encouragement

Provision.

Given its interactive nature, international reach,

and the capacity for both one-to-one and mass real-time

communications, the Internet is an especially effective

medium for the protected speech that the Encouragement

Provision chills. As this Court has recognized, the “vast

3. Recipients of Deferred Action for Childhood Arrivals

(“DACA”) are often referred to as “Dreamers.”

4. https://twitter.com/JulianCastro/status/1194391098606665730.

6

democratic forums of the Internet” have become one of

the “most important places . . . for the exchange of views”

today. Packingham, 137 S. Ct. at 1735 (citation omitted).

So, it is not surprising that the Internet plays a vital

role in the transmission of information to noncitizens

seeking to enter or remain in the country, whether they

seek to do so lawfully or unlawfully.

“Encouraging” speech directed to noncitizens seeking

to enter or remain in the United States without legal

authorization is found across the Internet, not merely

on social media platforms. Websites, applications, cloudbased document-sharing systems, and messaging services

abound with such speech. And the speakers represent a

wide range of interests, from concerned private individuals

to governmental officials, from advocacy organizations to

noncitizens themselves.

The clea r overbreadth and ambig uity of the

Encouragement Provision thus poses special threats to

online speech.

I.

T H E E NC OU R AGEM E N T PR OV I S ION ’ S

BROAD SWEEP THREATENS THE SPEECH

OF IMMIGRATION ADVOCACY AND SERVICES

ORGANIZATIONS ONLINE

Advocacy and service organizations use a wide variety

of online tools to provide information to both the general

public and noncitizens specifically.

Hundreds of community-based organizations utilize

websites to provide undocumented immigrants with

7

resources about how to obtain healthcare, housing, and

other services.

Amicus Immigrants Rising provides a number of

online resources for undocumented people, including:

• Information about undergraduate and graduate

scholarships;

• In-State Tuition Tool, a sur vey that helps

determine whether a student qualifies for in-state

tuition in California and advises on how to achieve

future eligibility;

• Resources on entrepreneurship opportunities and

how immigrant entrepreneurs can protect their

assets;

• Mental Health Connector, a questionnaire that

connects young people with psychological support;

and

• Legal Intake, a survey to learn about possible

immigration options. 5

Many other organizations provide materials on their

websites to inform undocumented immigrants about their

legal rights. Informed Immigrant maintains a Know Your

Rights section in its online resource library with a wide

range of information for undocumented immigrants and

their families, including information about their rights

5. Immigrants Rising, Resources, https://immigrantsrising.

org/resources/.

8

inside and outside their homes, what to do if someone you

know is arrested, how to prepare your family in the event

of an immigration raid, and guidance for finding a lawyer.6

Their website also includes information for immigrants’

medical providers7 and about common scams targeting

immigrants, 8 how to prepare for an immigration raid, and

about digital security.9 The National Immigration Law

Center offers similar resources as well as information

about participating in demonstrations.10 NAKASEC,

an organization working with and on behalf of Asian

American immigrants, provides a downloadable Know

Your Rights f lyer in both English and Korean. 11

Each organization accurately informs undocumented

immigrants of their basic legal rights, including that they

need not answer questions if law enforcement asks about

their immigration status and should not open their door if

6. Informed Immigrant, Know Your Rights, https://www.

informedimmigrant.com/resources/know-your-rights/know-yourrights/.

7. https://www.informedimmigrant.com/resources/knowyour-rights/ linking to, Nat’l Immigration Law Ctr., Health Care

providers and Immigrant Enforcement, https://www.nilc.org/

issues/immigration-enforcement/healthcare-provider-and-patientsrights-imm-enf/.

8. https://www.informedimmigrant.com/resources/know-yourrights/.

9. https://www.informedimmigrant.com/resources/know-yourrights/.

10. Nat’l Immigration Law Ctr., Know Your Rights, https://

www.nilc.org/get-involved/community-education-resources/knowyour-rights/.

11. NAKASEC, Know Your Rights!, https://nakasec.org/

rights; https://nakasec.org/ko/rights.

9

immigration officers come to their home without a search

or arrest warrant.

Interactive social media sites are also rich sources

of information for undocumented immigrants. They

allow users to solicit advice from other users regarding

immigration matters, develop personal relationships

with those with expert knowledge, cultivate a support

community, and otherwise seek out assistance.

Reddit, a social news aggregation and discussion

website, averaged over 1.5 billion monthly visits for

the first half of 2022, with almost half of those visits

originating in the United States.12 Users can submit posts

to boards arranged by topic, known as “subreddits.” The

Immigration subreddit has about 66,000 members, and

users submit and respond to posts seeking advice on

immigration matters.13 On any given day, several of the

top threads include questions about whether and how

an undocumented immigrant can remain in the United

States. For example, in one post, a user asked whether

their undocumented parents could fly within the United

12. Statista, Worldwide visits to Reddit.com from December

2021 to May 2022, https://www.statista.com/statistics/443332/redditmonthly-visitors/ (last visited February 20, 2023); Statista, Regional

distribution of desktop traffic to Reddit.com as of May 2022, https://

w w w.statista.com/statistics/325144/reddit-global-active-userdistribution/ (last visited February 20, 2023).

13. See Reddit, Immigration Subreddit, https://www.reddit.

com/r/immigration/. Visa Journey, a website that bills itself

“America’s Largest Immigration Community,” also provides similar

functionality. See Visa Journey, US Immigration Forums, https://

www.visajourney.com/forums.

10

States.14 Other users responded, “Yes they can!” and “they

can try.” Through these threads, users often receive advice

about their immigration options, including coming into or

remaining in the United States without authorization.

Tweets assuring undocumented immigrants that

their #HomeIsHere and that they are #HereToStay are

common and are intended to inspire, inspirit, embolden,

and give hope or courage to those facing deportation.

Social media executives have themselves participated

in the conversations on their own platforms.15

14. Reddit, Can undocumented people f ly within the US

with a Mexican passport and no visa? (posted September 17,

2022), https://www.reddit.com/r/immigration/comments/xg82f9/

can_undocumented_people_fly_within_the_us_with_a/.

15. See, e.g., Alexis Ohanian, An Open Letter to the Reddit

Community, Reddit, Jan. 30, 2017, https://w w w.reddit.com/r/

blog/comments/5r43td/an_open_letter_to_the_reddit_community/

(Reddit founder and executive chairman stating that “Reddit, Inc.

will continue to welcome all citizens of the world to our digital

community and our office,” and inviting Reddit users to share

their own immigration stories and receiving 30,900 responses);

@Twitter, Twitter (Jan. 28, 2017, 5:20 PM), https://twitter.com/

twitter/status/825513865794293761 (Twitter’s official company

account stating: “Twitter is built by immigrants of all religions. We

stand for and with them, always.”; and receiving 10,000 responses);

Taylor Lorenz, Zuckerberg Debates Immigration with Facebook

Commenters, The Hill, Sept. 1, 2017, https://thehill.com/blogs/

ballot-box/348865-mark-zuckerberg-debates-immigration-withfacebook-commenters (reporting that Facebook founder and CEO

Mark Zuckerberg publicly expressed support for DACA and debated

immigration with members of the public on Facebook).

11

The Encouragement Provision, on its face,16 prohibits

all these examples of speech found across the Internet:

speech informing undocumented immigrants about their

legal rights when conversing with immigration agents;

speech directing undocumented immigrants to resources

that will allow them to build meaningful and productive

lives within the United States; all speech that similarly

emboldens undocumented immigrants to remain within

the country, and all speakers who inspire and enable

immigrants to remain in the country, and give immigrants

hope that this country wants them here.

As the Ninth Circuit correctly found, the Encouragement

Provision bans exactly what it says: “inspiring, helping,

persuading, or influencing” noncitizens regarding the

prospect of residing unlawfully in the United States. Pet.

App. 9a. Even the government agrees that “encourage”

includes “embolden.” Pet. Rep. at 7 (citing Black’s Law

Dictionary 644 (10 th ed. 2014)). And, regardless of the

government’s claim that it will not prosecute this type of

speech, the existence of the Provision still thrusts such

speech into legal uncertainty with the risk of criminal

punishment. See United States v. Stevens, 559 U.S. 460,

480 (2010) (“But the First Amendment protects against

the Government; it does not leave us at the mercy of

noblesse oblige. We would not uphold an unconstitutional

statute merely because the Government promised to

use it responsibly.”) The government’s assurance rings

especially hollow because immigration policy positions

16. On its face, the provision is not simply an aiding and

abetting provision. Congress knows how to write an aiding and

abetting statute and uses those specific terms when it intends to

do so, and then provides additional guidance on what acts might

constitute aiding and abetting. See, e.g., 18 U.S.C. § 2(a).

12

vary among prosecutors across the country, and often

change, sometimes dramatically, with different political

administrations.17 Our nation’s profound commitment to

uninhibited, robust, and wide-open debate on public issues

cannot permit such uncertainty about whether one will be

punished for speaking. See New York Times v. Sullivan,

376 U.S. 254, 270 (1964).

These concerns remain even if this Court were

to limit the Encouragement Provision to one-to-one

communications, as the government now urges. See Pet.

Br. at 26-27. There is, of course, nothing in the statutory

language that gives online speakers the comfort of this

limitation; nevertheless, it would offer little help.18

The Know Your Rights Guides discussed above are

not simply general, factual information for a disinterested

public. They are designed to provide information to

specific people who might need it, functionally indistinct

from one-to-one communications. And they commonly

invite individuals to inquire further and seek out

17. Aid volunteers and immigration advocates have been

prosecutorial targets in the recent past. See Associated Press,

Arizona Border Activist Acquitted of Harboring Immigrants,

Nov. 20, 2019, https://apnews.com/article/arizona-immigration-usnews-ap-top-news-az-state-wire-1e3943f0b4f64acfa01f524aeaab9

bde; Rafael Carranza, Aid Volunteers Found Guilty of Dropping

Off Water, Food for Migrants in Protected Part of Arizona Desert,

Arizona Republic, Jan 18, 2019, https://www.azcentral.com/story/

news/2019/01/18/no-more-deaths-volunteers-found-guilty-droppingwater-food-migrants-cabeza-prieta-refuge-arizona/2617961002/.

18. Amici disagree that the statute can reasonably be read to

be limited to one-to-one communications, and support Respondent’s

argument to the contrary. Resp. Br. at 17-18.

13

personalized advice or to inquire for further information,

often providing contact email addresses or web forms for

an undocumented person to submit specific questions or

seek further resources.

For example, as noted above, amicus Immigrants

Rising has a resource on its website that “helps you

determine whether you qualify for in-state tuition (AB

540/SB 68) in California!”19 and an Immigration Legal

Intake Service also designed to provide personalized

resources. 20 NAKASEC maintains a 24-hour hotline for

individual immigrants to call. 21

A nd under the government’s interpretation it

would still be unlawful to respond, for example, to a

Reddit thread started by a person identifying as an

undocumented immigrant and in the response link to any

of the Know Your Rights resources mentioned above and

other accurate, online resources. The social, interactive

aspect of social media would carry great risk whenever

one interacted with an undocumented immigrant.

Lastly, the uncertainty surrounding the “financial

gain” enhancement exacerbates the statute’s problems.

Most plat for ms rely on revenue f rom ads they

place alongside content they host; for example, the

platform sells the ad space that appears next to

19. https://immigrantsrising.org/in-state-tuition-tool/ (last

visited February 21, 2023).

20. https://immigrantsrising.org/legalintake/ (last visited

February 21, 2023).

21. http://nakasec.org/hotline (last visited February 21, 2023).

14

an immigration advocacy organization’s post that

“encourages” unlaw ful immig ration. 2 2 See Doe v.

Twitter, 558 F. Supp. 3d 889, 924 (N.D. Cal 2021)

(finding 18 U.S.C. § 1595 beneficiary claim well pled based

on allegations that Twitter “monetizes” user content

through advertising), abrogated on other grounds by

Does 1-6 v. Reddit, 51 F. 4th. 1137, 1142-43 (9th Cir. 2022).

Platforms are thus discouraged from publishing,

and thus “monetizing,” immigration-related content.

Other users will lose ad revenue that platforms share

with them 23 or money they earn by using the platforms

for fundraising or other business purposes. Cf. Woodhull

Freedom Foundation v. United States, 948 F.3d 363,

374 (D.C. Cir. 2020) (finding that a nonsexual massage

therapist had standing to challenge the constitutionality

of FOSTA since he lost his ability to advertise his services

when Craigslist shut down its “personal services” listings

in response to the law’s passage).

22. Greg McFarlane, How Facebook (Meta), Twitter, Social

Media Make Money From You, Investopedia (Dec. 2, 2022), https://

w w w.investopedia.com /stock-analysis/032114 / how-facebooktwitter-social-media-make-money-you-twtr-lnkd-f b-goog.aspx;

Bennett Cyphers, The Bipartisan Digital Advertising Act Would

Break Up Big Trackers, EFF (June 23, 2022), https://www.eff.org/

deeplinks/2022/06/bipartisan-digital-advertising-act-would-breakbig-trackers (breaking down the digital advertising industry).

23. Amanda Silberling, YouTube targets TikTok with revenue

sharing for Shorts, Partner Program expansion, TechCrunch

(Sept. 20, 2022), https://techcrunch.com/2022/09/20/youtube-targetstiktok-with-revenue-sharing-for-shorts-partner-program-expansion

(discussing the “Partner Program, which allows creators to earn ad

revenue from YouTube”).

15

II. PRO T EC T ED ON LI N E SPEECH A BOU T

IMMIGRATION IS ESPECIALLY VULNERABLE

TO THE ENCOURAGEMENT PROVISION’S

VAGARIES BECAUSE ONLINE SPEAKERS

R ELY ON N U M ER OU S R I SK-A DV ER SE

INTERMEDIARIES

Even the hardiest of online speakers, who themselves

are not chilled by the law’s expansive and uncertain reach,

may nonetheless lose the ability to reach their audiences

because the law also applies to the online intermediaries

upon which all online speakers rely.

Internet speakers rely on web hosts, social media

platforms, domain name registers, security-service

providers, and many other intermediaries. Speakers won’t

be able to reach their audiences if the encouragement

provision discourages even one of these intermediaries. 24

To avoid the risk of criminal penalties and the burden

of having to defend even meritless charges, risk-adverse

intermediaries commonly censor users’ speech that even

approaches the line between lawful and unlawful speech.

This is partly caused by the inherently imperfect

nature of content moderation. Intermediaries commonly

restrict all speech about a topic rather than spending

the massive amounts of money and resources needed

to try to distinguish lawful from unlawful speech. See

Universal Commc’n Sys., Inc. v. Lycos, Inc., 478 F.3d

24. Section 230 does not immunize online intermediaries from

federal criminal legal liability arising from their users’ speech. 47

U.S.C. § 230(e)(1).

16

413, 418-19 (1st Cir. 2007) (citing cases). When Congress

banned online speech related to sex work, for example,

Facebook, Tumblr, Craigslist, and other online platforms

stopped hosting content far beyond the law’s prohibition,

thus pushing out a variety of content creators and users. 25

Online intermediaries, even the smallest ones,

commonly deal with a staggering volume of expression.

Although these companies are quite clearly aware

that debate over immigration is occurring through

their services, and that undocumented immigrants are

undoubtedly among the sometimes billions of users of

their services, it would require a monumental dedication

of resources to monitor how each of their users26 engage on

25. See, e.g., Craigslist, FOSTA, https://www.craigslist.org/

about/FOSTA; Aja Romano, A New Law Intended to Curb Sex

Trafficking Threatens the Future of the Internet As We Know It,

Vox, July 2, 2018, https://www.vox.com/culture/2018/4/13/17172762/

fosta-sesta-backpage-230-internet-freedom; Aaron Mackey, The

Fight to Overturn FOSTA, an Unconstitutional Internet Censorship

Law, Continues, EFF (Sept. 15, 2018), https://w w w.eff.org/

deeplinks/2022/09/fight-overturn-fosta-unconstitutional-internetcensorship-law-continues; Paige Collings, No Nudity Allowed:

Censoring Naked Yoga, EFF (Dec. 19, 2022), https://www.eff.org/

deeplinks/2022/12/no-nudity-allowed-censoring-naked-yoga; Daisy

Jones, Vogue (Jan. 29, 2023), Instagram Might Finally Be About

to Free the Nipple. What Took So Long?, https://www.vogue.com/

article/free-the-nipple-instagram.

26. See Emily Vogels, et al., Teens, Social Media and

Technology 2022, Pew Research Center (Aug. 10, 2022), https://

www.pewresearch.org/internet/2022/08/10/teens-social-mediaand-technology-2022 (67% of American teenagers ages 13 to 17

use TikTok); S. Dixon, Number of monthly active Facebook users

worldwide as of 4th quarter 2022, Statista (Feb. 13, 2023), https://

www.statista.com/statistics/264810/number-of-monthly-active-

17

the topic. Already, to enforce internal standards for user

speech, platforms necessarily rely on their users to flag

content that violates the platforms’ standards. 27 At large

platforms, thousands of staff and contractors then review

the flagged material, often making snap judgments about

each item in order to get through the enormous volume of

material awaiting review. 28 At smaller ones, where such

staffing is impossible, employees may simply honor all

takedown demands, no matter how legally unfounded. 29

It is simply not conceivable that intermediaries would,

or could, dedicate the human labor that would be needed

to sift through the enormous volume of speech shared

on their platforms to remove speech that encourages

noncitizens to reside in the United States unlawfully.

facebook-users-worldwide (Facebook has 2.96 billion monthly active

users as of the fourth quarter of 2022).

27. See, e.g., Kate Crawford and Tarleton Gillespie, What Is

a Flag For?: Social Media Reporting Tools and the Vocabulary of

Complaint, New Media & Society (2014), https://pdfs.semanticscholar.

org/96e8/d4d6f325b9173fba4d17aadf1c5c6f48edbe.pdf (describing

user flags as “a ubiquitous mechanism of governance” online).

28. See Casey Newton, The Trauma Floor, The Verge,

Feb. 25, 2019, https://w w w.theverge.com/2019/2/25/18229714/

cognizant-facebook-content-moderator-interviews-trauma-workingconditions-arizona; Sarah T. Roberts, Meet the People Who Scar

Themselves to Clean Up Our Social Media Networks, Macleans,

June 15, 2018, https://www.macleans.ca/opinion/meet-the-peoplewho-scar-themselves-to-clean-up-our-social-media-networks/.

29. See Jennifer M. Urban et al., Notice and Takedown in

Everyday Practice, Univ. of Cal.–Berkeley Public Law Research

Paper No. 2755628 (March 22, 2017), at 41 (noting some platforms

that honor all requests).

18

And where platforms face the threat of criminal

penalties, community policing like this inevitably results

in the heckler’s veto, whereby any user can effectively

censor another user by notifying the intermediary that the

other user’s speech is unlawful, regardless of the merits

of that notice; the complainant knows the intermediary

will take the post down rather than incur the expense of

investigating or analyzing the notice. See Reno v. Am.

Civil Liberties Union, 521 U.S. 844, 880 (1997) (explaining

that law prohibiting indecent messages to minors online

“would confer broad powers of censorship, in the form of a

‘heckler’s veto,’ upon any opponent of indecent speech”). 30

Here the heckler’s veto is of special concern because of

the Encouragement Provision’s broad and uncertain scope.

Intermediaries have little incentive to expend enormous

effort and resources sifting through a massive volume of

speech in order to precisely identify user speech that is

unlawful under the Encouragement Provision. Instead,

platforms seeking to minimize their own criminal exposure

under the statute are likely to simply censor all expression

about immigration wholesale, or—perhaps even more

troublingly—remove all expression favoring an immigration

policy based on principles of inclusion and decriminalization

because such expression is likeliest to violate the statute,

while allowing speech favoring more restrictive and punitive

immigration policies to remain online.31

30. Cf. Corynne McSherry, Platform Censorship: Lessons

From the Copyright Wars, EFF (Sept. 26, 2018), https://www.eff.

org/deeplinks/2018/09/platform-censorship-lessons-copyright-wars

(“[S]ervice providers will usually respond to a DMCA takedown

notice by quickly removing the challenged content.”)

31. The Prohibition’s “intent or effect of favoring some

ideas over others . . . raises the specter that the Government may

19

Artificial intelligence and algorithms do little to

help. Such tools have consistently proved faulty, and

remove content with little to no transparency or public

oversight.32 Drawing the line between speech that lawfully

discusses immigration issues from speech that, under

the Encouragement Provision, unlawfully expresses

encouragement for noncitizens to reside in the country,

is a daunting enough task for a human being, and an

impossible one for a machine, even if it were clear what

the Encouragement Provision criminalized.

Thus, even users seeking to engage in lawful speech

about immigration may find themselves refused entry to

the modern public square, stifling debate over one of the

most important public issues confronting the nation today.

effectively drive certain ideas or viewpoints from the marketplace.”

Reed v. Town of Gilbert, 576 U.S. 155, 182 (2015) (citation omitted).

Such laws are constitutionally suspect and subject to the most

exacting form of scrutiny. Id.

32. See generally Abdul Rahman Al Jaloud, Hadi Al Khatib,

Jeff Deutch, Dia Kayyali, and Jillian C. York, Caught in the Net:

The Impact of “Extremist” Speech Regulations on Human Rights

Content (May 2019), https://www.eff.org/files/2019/05/30/caught_

in_the_net_whitepaper_2019.pdf (explaining that automated takedown systems are inaccurate and opaque, and describing effect on

marginalized speakers). See also Bijan Stephen, Porn: You Know It

When You See It, But Can A Computer?, The Verge, Jan. 30, 2019

https://www.theverge.com/2019/1/30/18202474/tumblr-porn-ainudity-artificial-intelligence-machine-learning (explaining difficulty

in training artificial intelligence to parse content).

20

Conclusion

The Encouragement Provision threatens to stifle

the free exchange of ideas online about one of the most

contentious and important political questions of our time.

Such a result is antithetical to our nation’s unique and

profound commitment to the protection of speech. In light

of the foregoing, the judgment of the United States Court

of Appeals for the Ninth Circuit should be affirmed.

February 23, 2023

Respectfully submitted,

David Greene

Counsel of Record

Mukund Rathi

Hannah Zhao

Electronic Frontier Foundation

815 Eddy Street

San Francisco, California 94109

(415) 436-9333

davidg@eff.org

Attorneys for Amici Curiae