Demokratia

Will: I think this is also trickier than it seems at first. I mean the naïve cut would be of course the court will say this is unconstitutional. In Paul v. [unintelligible , they said you can't try to place black children with black parents or white children with white parents in the adoption proceedings. That's race discrimination and you'd think this is the same thing. On the other hand, Indian law generally operates out of the fiction that treating people on the basis of Indianness is not treating them on the basis of race. So, those precedents--
I guess we're so worried about the chilling effects that come with saying, "Well, we criminalized a bunch of speech, but we'll sort it out later," or, "We're so mad at Congress for not taking free speech seriously," or something. Justice Thomas [unintelligible with this whole thing, But for some reason, in free speech cases, we sometimes say, "Look, this is criminalized a bunch of speech, and we're not going to sit here and parcel out the op-ed versus the advice to the friend versus the pastor versus the fraudulent abuser of poor undocumented immigrants who made millions of dollars off of them. They're all kind of the same."
But then, the dissent makes this point drawn from [unintelligible that it's not just the prosecutions, of course. It's who does the Customs and Border Patrol survey, who is chilled. And I do think there are a lot of people who worry about the statute and a lot of people who don't engage in various kinds of probably protected behavior because this is a scary area of law they don't want to run afoul of, people who are working with immigrant communities, people working in legal services, so on. And I wasn't sure, I thought the dissent might have a good point there that you can't just say they don't bring these prosecutions, that doesn't actually tell you that much.