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CA9 on First Amendment, 'Encouraging and Inducing' - U.S. v. Sineneng-Smith

December 05, 2018 (1 min read)

U.S. v. Sineneng-Smith - "Defendant-Appellant Evelyn Sineneng-Smith was convicted on two counts of encouraging and inducing an alien to remain in the United States for the purposes of financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) & § 1324(a)(1)(B)(i).1 Section 1324(a)(1)(A)(iv) (“Subsection (iv)”) permits a felony prosecution of any person who “encourages or induces an alien to come to, enter, or reside in the United States” if the encourager knew, or recklessly disregarded “the fact that such coming to, entry, or residence is or will be in violation of law.” We must decide whether Subsection (iv) abridges constitutionally-protected speech. To answer this question, we must decide what “encourages or induces” means. The parties have widely divergent views about how to interpret the statute. Sineneng-Smith and several amici contend that encourage and induce carry their plain meaning and, therefore, restrict vast swaths of protected expression in violation of the First Amendment. The government counters that the statute, in context, only prohibits conduct and a narrow band of unprotected speech. We do not think that any reasonable reading of the statute can exclude speech. To conclude otherwise, we would have to say that “encourage” does not mean encourage, and that a person cannot “induce” another with words. At the very least, it is clear that the statute potentially criminalizes the simple words – spoken to a son, a wife, a parent, a friend, a neighbor, a coworker, a student, a client – “I encourage you to stay here.” The statute thus criminalizes a substantial amount of constitutionally-protected expression. The burden on First Amendment rights is intolerable when compared to the statute’s legitimate sweep. Therefore, we hold that Subsection (iv) is unconstitutionally overbroad in violation of the First Amendment."