The First Amendment and “Encouraging” or “Inducing” Unlawful Immigration

The First Amendment and “Encouraging” or “Inducing” Unlawful Immigration

Legal Sidebari

The First Amendment and “Encouraging” or
“Inducing” Unlawful Immigration
March 12, 2020
In United States v. Sineneng-Smith, the Supreme Court is considering the constitutionality of a federal
criminal prohibition against encouraging or inducing illegal immigration. The U.S. Court of Appeals for
the Ninth Circuit previously held that the law was unconstitutionally overbroad in violation of the First
Amendment because the terms “encourage” and “induce” could criminalize a substantial amount of
protected speech. The government appealed the decision to the Supreme Court, arguing that the law
operates as a prohibition on facilitation and solicitation of unlawful activity and is therefore not
overbroad. Sineneng-Smith is potentially important, not only for federal immigration law and how it is
enforced, but also more broadly for First Amendment jurisprudence on when Congress can criminalize
speech that encourages illegal activity. This Sidebar provides an overview of the case, beginning with
background on immigration and free speech law, before turning to the specific issues raised by Sineneng-
Smith and its potential implications for Congress.
Legal Background
The Immigration and Nationality Act (INA) governs the admission, removal, and presence of non-U.S.
nationals (i.e., aliens). Although it is generally not a crime for a removable alien to be present in the
United States, Congress has established criminal sanctions for certain conduct that undermines
immigration rules. For example, 8 U.S.C. § 1324 contains multiple criminal offenses that penalize
individuals who smuggle, transport, harbor, or conceal unlawfully present aliens, as well as the provision
at issue in Sineneng-Smith. That provision, 8 U.S.C. § 1324(a)(1)(A)(iv) (Subsection (iv)) makes it a
crime for any individual to “encourage[] or induce[] 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 the law.” A conviction may result in a fine and up to five years’ imprisonment, with enhanced
penalties including imprisonment for up to ten years if the crime was committed for commercial
advantage or private financial gain.
Because the INA does not define the terms “encourage” or “induce,” there is some debate over the scope
of Subsection (iv), primarily as to whether the terms should be broadly construed in accordance with their
ordinary meaning, or whether Congress intended the terms to prohibit conduct more narrowly. As
discussed below, a narrower construction of the statute would prohibit only conduct or speech that
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constitutes criminal solicitation or facilitation. A broader interpretation of Subsection (iv), however,
would potentially criminalize protected speech, thus raising the question of whether the statute violates
the Free Speech Clause of the First Amendment.
The Free Speech Clause provides that the government “shall make no law . . . abridging the freedom of
speech.” However, the right to free speech “is not absolute.” Although laws regulating speech based on
content (i.e., subject matter) are presumptively unconstitutional, they may pass judicial scrutiny if
Congress advances a sufficient governmental interest for the regulation. In addition, the Supreme Court
has carved out several well-defined, narrow, and limited categories of so-called “unprotected” speech that
the government may regulate because of content. These categories of speech include, for example,
obscenity, defamation, and incitement. The government also has more leeway to regulate speech integral
to criminal conduct. The Court has used the speech integral to criminal conduct exception to uphold, for
example, criminal statutes prohibiting the distribution and possession of child pornography and soliciting
crime. There is, however, a fine line between speech that incites imminent lawless action or that is
integral to criminal conduct, on the one hand, and speech that the Court refers to as “abstract advocacy”—
or speech that merely advocates for illegality—on the other. For example, the Court reasoned that the
statement “I encourage you to obtain child pornography” is protected abstract advocacy, while a specific
offer to provide someone with child pornography is unprotected speech integral to criminal conduct.
Although the categories above are generally considered unprotected, they are not “invisible” to the First
Amendment, which still places some limits on how Congress can regulate in these areas. Laws that
restrict speech based on the “particular views taken by speakers on a subject,” may be considered
unconstitutional viewpoint-based restrictions even if they are aimed at an unprotected category of speech.
Moreover, even when criminalizing unprotected speech, a law may be facially invalid if it is overbroad. In
a facial overbreadth challenge, the court considers the universal application of the law rather than the
application of the law specifically to the defendant’s conduct. A statute is overbroad if it constitutionally
bans some unprotected speech, but also substantially prohibits protected speech. The Supreme Court has
emphasized that to be considered overbroad, the statute must prohibit a substantial amount of protected
speech relative to the statute’s “plainly legitimate sweep.” The overbreadth doctrine, although applied
sparingly, is used to prevent the “chilling” of protected speech, or the concern that people may refrain
from exercising their right to constitutionally protected expression out of fear of criminal sanctions.
Facts and Procedural History of Sineneng-Smith
Evelyn Sineneng-Smith operated an immigration consulting firm and assisted noncitizen clients with
applying for a labor certification program for foreign workers in certain jobs in the United States.
Although she knew that this particular labor certification process ended on April 30, 2001, Sineneng-
Smith continued to sign retainer agreements with clients and advised them that they could obtain green
cards enabling them to remain in the country lawfully as part of the certification process. At least two of
her clients testified that they would not have stayed in the United States but for Sineneng-Smith’s
assurances.
Sineneng-Smith was charged with multiple counts of mail fraud under 18 U.S.C. § 1341 and with
violations of Subsection (iv). The government also invoked the sentence enhancement provision for the
Subsection (iv) violation, alleging she committed the crime for commercial advantage or private financial
gain. A jury found Sineneng-Smith guilty of both offenses.
On appeal, the Ninth Circuit, while affirming the mail fraud convictions, reversed her convictions under
Subsection (iv), holding that the statute was unconstitutionally overbroad in violation of the First
Amendment. The court first reasoned that the terms “encourage” and “induce” should be read according
to their plain meaning, as there is no other context within the statute suggesting that they should be

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construed differently. Employing this interpretation, the court determined that Subsection (iv)’s
prohibition on encouraging and inducing illegal immigration reaches speech, conduct, or both.
Applying the overbreadth standard, the Ninth Circuit also concluded that there was a “realistic (and
actual) danger” that Subsection (iv) would infringe on substantial amounts of First Amendment-protected
speech. In so doing, the court rejected the government’s contentions that the law primarily regulated
unprotected incitement speech or speech integral to criminal conduct. The court expressed concerns that,
for example, a grandmother who urges her grandson to overstay his visa by telling him “I encourage you
to stay,” or an attorney who advises her client to stay in the country while contesting removal could face
prosecution under Subsection (iv).
Arguments at the Supreme Court
The government appealed the Ninth Circuit’s decision to the Supreme Court, and on February 25, 2020
the Court heard oral argument in the case. The government primarily argues that the Ninth Circuit’s
interpretation of Subsection (iv) was too expansive, causing it to reach protected First Amendment
activity that would not be implicated by the government’s construction. The government contends that
“encourage” and “induce” are criminal-law terms of art referring to the solicitation or facilitation of crime
and were not intended to be used in a broad, speech-restrictive manner. Subsection (iv), according to the
government, should instead be interpreted as a prohibition on facilitating or soliciting crime, and,
therefore, it would be constitutional to proscribe any speech that may fall within its reach. The
government disagrees that Subsection (iv) would criminalize otherwise-protected “abstract advocacy” of
illegality (e.g., a person would not violate Subsection (iv) by encouraging a family member to overstay a
visa absent additional action). The government further elaborated on this issue at oral argument, arguing
that “encourage” and “induce”—when read together under Subsection (iv)—require (1) willful conduct
by the defendant; (2) the alien’s knowledge of the defendant’s conduct; and (3) substantial participation
or conduct by the defendant that would make the “encouraging” or “inducing” succeed.
Sineneng-Smith rejects the government’s contention that Subsection (iv) only refers to the facilitation or
solicitation of a crime, claiming that the government’s interpretation does not have support in either the
plain language of the provision or in other, related criminal offenses also contained in 8 U.S.C. § 1324.
And she argues that there is no indication that Congress intended the statute to operate in the manner
advanced by the government. She maintains that “encourage” and “induce” must take on their ordinary
meanings, which would encompass many examples of speech. For example, according to Sineneng-
Smith, “encourage” is defined by the dictionary using words such as “inspire,” “embolden,” or “give
courage to.” Likewise, she contends that, according to the dictionary definition, induce means “enticing or
persuading another person to take a certain course of action.” Accordingly, Sineneng-Smith centrally
argues that Subsection (iv) reaches a substantial amount of protected speech including a person
encouraging an unlawfully present alien family to remain in the United States, an attorney advising an
unlawfully present alien client, or a charity advising unlawfully present aliens of resources available to
them. Additionally, she claims that the government’s argument that speech covered by Subsection (iv) can
be constitutionally regulated as speech integral to criminal conduct must fail because remaining in the
United States without an immigration status is a civil offense, and only speech soliciting a crime can be
criminally punished under the Constitution.
The argument that Subsection (iv) reaches protected speech seemed to gain traction with Chief Justice
Roberts at oral argument, as he inquired whether the Court would have to get approval from Congress and
the President to narrow the statute to apply only to solicitation of a crime. And several justices questioned
the government about the potential broad reach of the statute. For example, Justice Kavanaugh explored
whether charities who serve unlawfully present aliens could be prosecuted under Subsection (iv) during
oral argument.

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Considerations for Congress
Sineneng-Smith implicates matters specific to the law at issue in the case and to broader questions of
when Congress can criminalize speech.
A decision in this case could provide guidance on what conduct can be penalized under Subsection (iv).
For its part, the government contends that Subsection (iv) is used, for example, to prosecute those who
provide aliens with false documents or sell fake “visa extensions” to foreign tourists. Several interested
parties, however, submitted briefs to the Court claiming that Subsection (iv) exposes a wide range of
speakers to criminal liability, including persons who may be providing information or services to
unlawfully present aliens for humanitarian purposes. Moreover, several cities contend that the Trump
Administration has relied on Subsection (iv) to encourage state and local governments to cooperate with
federal immigration enforcement efforts. A decision striking down the statute or providing it with a
narrower construction could eliminate all of these possible avenues for enforcing Subsection (iv).
Nonetheless, because of how rarely the government has invoked Subsection (iv) in past immigration
enforcement prosecutions, Sineneng-Smith’s implications may be most profound for the Court’s broader
First Amendment jurisprudence. The language of Subsection (iv) raises significant questions regarding
the fine line between when Congress lawfully prohibits unprotected criminal speech and when it begins to
criminalize protected abstract advocacy of illegal conduct. As a result, the Sineneng-Smith Court may
provide clarity on what is sufficient from Congress to prohibit soliciting or facilitating criminal conduct
and whether the terms “encourage” and “induce” in isolation are too broad under the First Amendment.
Moreover, in considering the government’s contention that Subsection (iv) should be read as a prohibition
on solicitation or facilitation, at least one prominent First Amendment scholar has argued that to be
constitutional, solicitation may only be criminally punished if it consists of solicitation of criminal
conduct, which raises an important issue in the current dispute because it is typically not a crime for
aliens to overstay a visa or otherwise remain in the United States beyond the period of authorization. The
Justices referenced this argument a number of times at oral argument, exploring whether laws
criminalizing the solicitation of civil infractions comport with the First Amendment.
A decision in Sineneng-Smith is expected sometime by late June 2020.

Author Information

Whitney K. Novak
Kelsey Y. Santamaria
Legislative Attorney
Legislative Attorney

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