Can an individual be convicted of a felony for statements made in support of illegal immigration? Tomorrow, the Supreme Court is poised to hear oral arguments in United States v. Sineneng-Smith, and address whether a federal criminal prohibition against encouraging or inducing illegal immigration for personal or private financial gain is facially unconstitutional under the First Amendment. In reaching its decision, the Court will likely be forced to confront the line between advocacy and criminal solicitation, and the scope of the solicitation exception to the First Amendment.
Evelyn Sineneng-Smith was an immigration consultant who specialized in a labor-certification program for immigrants in the home-healthcare industry. After the expiration of the program, she was accused of continuing to market the program to her clients and also advising her clients to remain in the United States illegally. This particular case stems from Sineneng-Smith’s conviction in the Northern District of California for violation of 8 U.S.C. § 1324(a)(1)(A)(iv), which permits felony prosecution for any person who “encourages” or “induces” an alien to come to, enter, or reside in the United States if the individual knew or recklessly disregarded that the entry or residence would be illegal. The Ninth Circuit reversed her conviction, holding that the statute is unconstitutionally overbroad under the First Amendment and is accordingly invalid on its face.
On appeal, the government argues the statute is simply a conventional prohibition on soliciting or facilitating illegal activity. To be sure, the Supreme Court has previously recognized the distinction between unprotected solicitation of criminal acts and protected “abstract advocacy” of such behavior (subject to the Brandenburg test). [See United States v. Williams, 553 U.S. 285 (2008)]. At the same time, Sineneng-Smith counters that the statute’s prohibition on “encourag[ing]” an alien’s actions reaches constitutionally protected speech beyond criminal solicitation. Additional insight from the Court in explaining the distinction between constitutionally unprotected solicitation and constitutionally protected advocacy may be key to the Court’s analysis.
For more information and analysis following oral argument, be on the lookout for a Courthouse Steps teleforum, for a complete breakdown and analysis of the arguments.