Criminal Facilitation and the First Amendment (Part 4)

by | Mar 30, 2024 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

The United State Supreme Court majority concluded with the following in relevant part: Since “encourages or induces” draws on the same common-law principles, clause (iv) also incorporates a mens rea requirement implicitly. Finally, it bears emphasis that the canon of constitutional avoid ance counsels the Court to adopt the Government’s reading if it is at least “fairly possible.” Jennings v. Rodriguez, 583 U. S. –––, –––. P. 781.

Section 1324(a)(1)(A)(iv) reaches no further than the purposeful solicitation and facilitation of specific acts known to violate federal law. So understood, it does not “prohibit a substantial amount of protected speech” relative to its “plainly legitimate sweep.” Williams, 553 U. S., at 292. It is undisputed that clause (iv) encompasses a great deal of non-expressive conduct, which does not implicate the First Amendment at all, e. g., smuggling noncitizens into the country. Because these types of cases are heartland clause (iv) prosecutions, the “plainly legitimate sweep” of the provision is extensive. To the extent clause (iv) reaches any speech, it stretches no further than speech integral to unlawful conduct, which is unprotected. See, e. g., Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 502.

Hansen, on the other hand, fails to identify a single prosecution for ostensibly protected expression in the 70 years since Congress enacted clause (iv)’s immediate predecessor. Instead, he offers a string of hypotheticals, all premised on the expansive ordinary meanings of “encourage” and “induce.” None of these examples are filtered through the traditional elements of solicitation and facilitation—most importantly, the requirement that a defendant intend to bring about a specific result.

Because clause (iv) does not have the scope Hansen claims, it does not produce the horribles he parades. Hansen also resists the idea that Congress can criminalize speech that solicits or facilitates a civil violation, and some immigration violations are only civil. But even if clause (iv) reaches some protected speech, and even assuming that its application to all of that speech is unconstitutional, the ratio of unlawful-to-lawful applications is not lopsided enough to justify facial invalidation for overbreadth.

The majority opinion is more grounded in procedure than substance. It relies heavily on precedent requiring the Supreme Court to avoid deciding constitutional interpretations when alternative dispositions are available.