Oral arguments were recently held before the Supreme Court in a case that could have a profound impact on a wide range of criminal acts. The Court is set to address whether a law criminalizing the inducement of illegal immigration is an unconstitutional infringement on free speech.

The case concerns a defendant who ran an unlawful immigration-advising service from 2012 to 2016. The scheme involved charging non-citizens upwards of $10,000 for a purported pathway to citizenship. He would tell victims of the scheme that he could help them obtain citizenship by way of adult adoption; he convinced over 470 people to participate. For anyone wondering: No, you can’t become a citizen that way.

For his actions, he was convicted on two counts of violating a federal law that prohibits individuals from encouraging others to commit illegal immigration for financial gain. Specifically, the law makes it a felony to “encourag 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,” with enhanced penalties if the crime is “done for the purpose of commercial advantage or private financial gain.” He was also convicted on several counts of wire fraud and mail fraud, but those charges are not at issue before the Court. Instead, the Court is called upon to address whether the immigration law is a First Amendment violation.

This is not the first time the question has been posed to the Supreme Court. A few years ago, a defendant was convicted under the unlawful inducement statute. The defendant appealed, arguing the law was unconstitutionally vague and a free speech violation, specifically as applied to that defendant. The Ninth Circuit Court of Appeals struck down the law, holding that the law itself was unconstitutional and invalid in all applications. In United States v. Sineneng-Smith, the Supreme Court unanimously reversed on the grounds that the Ninth Circuit had gone above and beyond the actual arguments in the case to overturn the conviction and invalidate the law. The Court dodged the actual substantive question as to whether the law was a facial First Amendment violation.

Now, in United States v. Hansen, the Court is squarely faced with the broader question. The Ninth Circuit once again struck down the law, this time based on the party’s actual arguments. The appellate court held that the law is unconstitutional because it is overbroad and penalizes speech that should be protected. For example, the law renders it a crime for a person to simply state: “I encourage you to reside in the United States,” or to advise them about the social services available to them. Such speech would be protected. The Justice Department sought the Supreme Court’s intervention to reinstate the criminal law.

At oral argument, the Supreme Court seemed to share the lower court’s concerns. Justice Kavanagh, for example, asked whether the law could be used to convict someone who helped an undocumented immigrant find food and shelter. Justice Sotomayor asserted the law essentially “criminaliz words relating to immigration.” On the other side, Justice Gorsuch and others were more focused on the defendant’s specific conduct, which did not seem to involve protected speech.

Regardless of whether the law is upheld, the defendant’s scheme was unlawful. He defrauded over 470 unsuspecting victims out of their money by making false promises concerning citizenship. This case is about whether a law that criminalizes mere words infringes on citizens’ right to free speech guaranteed by the First Amendment to the Constitution.

If the Court upholds the Ninth Circuit’s ruling, it could have a profound effect on similar laws that significantly broaden the concept of “aiding and abetting” a crime. Laws that criminalize normal speech chill free expression by granting the government wide discretion in choosing who to penalize and when. On the other hand, not all speech is, or should be, protected; harmful speech that actually furthers a crime (for example, fraudulent or deceptive speech) can and should be prosecuted.