Among the “historic and traditional”1 categories of unprotected speech — “the prevention and punishment of which have never been thought to raise any Constitutional problem”2 — is criminal solicitation.3 While the Court has attempted to draw clear and workable definitions for other forms of low-value speech, such as obscenity,4 defamation,5 fighting words,6 and incitement,7 it has not paid similar attention to clarifying the boundaries of criminal solicitation. Last Term, in United States v. Sineneng-Smith,8 the Supreme Court heard argument on whether 8 U.S.C. § 1324(a)(1)(A)(iv) — which criminalizes “encourag[ing] or induc[ing]” a noncitizen or nonnational “to come to, enter, or reside in the United States, knowing or in reckless disregard” of the illegality of doing so9 — was unconstitutionally overbroad.10 The Court ultimately decided Sineneng-Smith on procedural grounds, holding that the Ninth Circuit abused its discretion in appointing three amici to brief and argue legal issues not raised by the parties.11 By punting on the merits issue, the Court missed an opportunity to clarify for the first time the point at which protected abstract advocacy becomes criminal solicitation, instead leaving a patchwork regime of conflicting and flawed lower court tests unresolved.
Between 2001 and 2008, Evelyn Sineneng-Smith signed retainer agreements to help unlawfully employed individuals apply for labor certifications, which allowed certain eligible noncitizens to eventually become lawful permanent residents.12 To obtain a green card through this process, an applicant had to be physically present in the United States on December 21, 2000, and apply before April 30, 2001.13 Fully aware of these requirements, Sineneng-Smith continued to offer her services to new, ineligible clients, making more than $3.3 million in the process.14
The government charged Sineneng-Smith with ten counts, including three counts of violating subsection (iv) and three counts of mail fraud.15 In a motion to dismiss, Sineneng-Smith challenged the immigration counts.16 First, she argued that she did not “encourage” undocumented individuals because her conduct did not constitute “fraud against the United States.”17 The district court rejected this interpretation, reasoning that defrauding clients by promising a path to permanent residency was “plainly powerful encouragement.”18 Second, the court rejected Sineneng-Smith’s argument that the statute was impermissibly vague in violation of the First Amendment.19 An “ordinary person,” the court reasoned, could have understood subsection (iv) to prohibit deceiving undocumented individuals by guaranteeing them an impossible path to permanent residency.20 Sineneng-Smith’s motion to dismiss the immigration counts was denied.21
Over the course of a twelve-day trial, Sineneng-Smith challenged the remaining immigration and mail fraud counts in court.22 Though a jury found her guilty of all six counts, Sineneng-Smith moved for a judgment of acquittal, arguing that the evidence did not support the verdicts23 and raising, “almost verbatim,” the same arguments as in her motion to dismiss the immigration counts.24 Granting and denying her motion in part, the court convicted Sineneng-Smith of two counts each of mail fraud and violating subsection (iv) and, again, rejected her First Amendment arguments as they pertained to the latter.25 Sineneng-Smith appealed.
On appeal, Sineneng-Smith made the same arguments as in her motions to dismiss and for judgment of acquittal.26 After a first set of oral arguments, the Ninth Circuit appointed three amici to answer three questions: whether subsection (iv) (1) was overbroad, (2) was void for vagueness, or (3) implicitly contained a mens rea requirement.27 The parties were allowed, but “not required,” to file supplemental briefs.28 The case was reheard and, in oral arguments, the amici were given twenty minutes, while Sineneng-Smith was given ten.29
The Ninth Circuit affirmed Sineneng-Smith’s mail fraud convictions but reversed her convictions under subsection (iv).30 Writing for the unanimous panel, Judge Tashima31 found subsection (iv) unconstitutionally overbroad.32 He began by interpreting subsection (iv) and, relying on its language and context, concluded that its plain meaning clearly criminalized not only conduct but also speech.33 Not all speech receives First Amendment protection, but the panel found that the speech criminalized by subsection (iv) fell outside the traditional categories of unprotected speech.34 It did not constitute incitement, in the court’s view, because subsection (iv) did not require a risk of an imminent violation of immigration law.35 Subsection (iv) also was not an aiding and abetting statute — a subcategory of speech integral to criminal conduct — because it did not “include[] the words aiding and abetting” and did not require “the commission of a crime by another” or that the defendant “assisted or participated” in the underlying offense.36 Instead, there was a real — not just hypothetical — danger that the statute would “significantly compromise” many types of protected speech,37 such as a grandmother encouraging her grandchild to overstay a visa,38 general political advocacy,39 and other “every-day discussions in this country where citizens live side-by-side with non-citizens.”40 In other words, because the statute’s only reasonable interpretation infringed on and chilled a substantial amount of protected speech, the panel concluded that the statute was unconstitutionally overbroad.41 The government sought certiorari.
The Supreme Court vacated the judgment and remanded the case.42 Writing for the unanimous Court, Justice Ginsburg chastised the Ninth Circuit for veering far from the principle of party presentation, which assumes that parties are in the best position to advocate for their own interests.43 Courts thus must act as “neutral arbiter[s]” of the issues presented and the arguments raised by parties and cannot — except in certain exceptional circumstances44 — reframe cases as they would like.45 The Court explained that by striking down subsection (iv) for being overbroad, the Ninth Circuit relied on a theory that not only was contrary to the parties’ but also should not be “casually employed.”46 This “radical transformation”47 of the case constituted an abuse of discretion.48
Justice Thomas concurred.49 Though he agreed that the Ninth Circuit abused its discretion, he argued that the circuit court’s decision, more fundamentally, exposed the overbreadth doctrine’s flaws.50 First, it was developed in the twentieth century and has no grounding in the First Amendment’s text or history.51 Instead, it has been justified using policy and value-based rationales, such as the public good or the need to give “delicate and vulnerable” First Amendment rights the “breathing space to survive.”52 Second, the doctrine relaxes the usual requirements for a statute to be facially invalidated, allowing courts to deem an act unconstitutional even if it “can be validly applied in numerous circumstances.”53 Justice Thomas argued that this lower standard is inconsistent with judicial restraint, leads to “premature” and “unnecessary” decisions that rely on hypothetical fact patterns not immediately before the Court,54 and is used inconsistently — usually when “preferred rights are at stake.”55 Last, overbreadth is in tension with the principles behind standing.56 Because standing has “roots in Article III’s case-or-controversy requirement,” standing doctrine traditionally maintains that an individual cannot assert another party’s rights or interests.57 In contrast, an overbreadth challenge, by definition, requires a party to adjudicate the rights of others whose actions could theoretically fall within a statute’s scope.58 According to Justice Thomas, overbreadth is “the handiwork of judges” and requires reconsideration.59
The protection of abstract advocacy is at the core of the First Amendment tradition.60 To minimize the suppression of valuable speech, the Court has long committed to trying to draw “well-defined and narrowly limited” categorical exceptions to the First Amendment’s speech protections.61 However, when faced with cases that implicate criminal solicitation, the Court has simply made determinations regarding whether specific speech falls within the exception with no accompanying explanation as to why.62 Sineneng-Smith offered the Court a chance to clarify the “important distinction”63 between advocacy and solicitation — an opportunity it wasted. As a result, lower courts, which have adopted their own conflicting and flawed tests, remain without guidance, creating an incoherent legal landscape that threatens a wide range of federal statutes and chills important advocacy.
The Court’s reasons for disposing of Sineneng-Smith without reaching the merits were unconvincing. The issue on appeal was whether subsection (iv) was unconstitutionally overbroad.64 Because the Court would have had to decide whether the speech fell within a First Amendment exception,65 it was presented with the opportunity to clarify when advocacy becomes solicitation. Instead, it relied on the party presentation principle to remand the case without addressing the merits. But it is unclear that the Ninth Circuit’s actions violated this principle or that reversal was required even if they did.66 In his concurrence, Justice Thomas noted that overbreadth “shares a close relationship” with vagueness.67 This assertion seems inconsistent with the Court’s claim that overbreadth is so distinct from vagueness — an issue Sineneng-Smith raised herself68 — that the Ninth Circuit’s choice to decide the case on overbreadth grounds constituted an abuse of discretion.69 More strikingly, the Court conceded that it sometimes deviates from the party presentation principle,70 making its exclusive reliance on it all the more unconvincing. Last Term — just over a month before Sineneng-Smith was decided — the Court granted certiorari on the question of whether Ramos v. Louisiana71 applies retroactively.72 Neither party had mentioned retroactivity in its briefs,73 and the issue could not have been brought up in lower courts. “[T]he question was . . . interjected into the case for the first time by an appellate forum” — the exact conduct the Sineneng-Smith Court repudiated.74
Because the Court has yet to define criminal solicitation, lower courts have had to fashion their own tests. Although there is confusion and disagreement among them,75 three approaches have emerged, all of which are flawed. Some courts, like the Seventh Circuit, focus only on a speaker’s intent.76 It does not matter whether a listener is likely to listen and follow through.77 As long as a speaker intends that somebody will hear and carry out the crime, the speech is punishable.78 On one hand, to focus on intent makes sense because criminal solicitation is an inchoate crime,79 and a state’s interest in deterring bad conduct can be satisfied only when speakers know their speech could be criminalized.80 In fact, the Court has implied that, for speech to constitute solicitation, a speaker must, at the very least, have the specific intent to induce a listener to commit a crime.81
On the other hand, to focus only on intent is to criminalize speakers for the words they utter rather than for the likely consequences of their words. This approach treats solicitation inconsistently with the First Amendment’s other exceptions, such as incitement,82 fighting words,83 or true threats,84 which require that further action is, at the very least, likely to occur. Because the government cannot suppress speech on the basis that it is “offensive or disagreeable,”85 it has long been understood that a state’s interest is in deterring the harmful consequences of speech — not the speech itself.86 An intent-only approach implies the opposite, risking significant chilling effects. Provocative or inflammatory speakers could be silenced even if their words ran no risk of crime or violence, and individuals could be punished for the indirect and potentially attenuated consequences of their speech, an idea that is “foreign to the First Amendment.”87 A definition of solicitation independent of listeners’ potential responses, therefore, creates an exception that is uncabined and imposes “no limit to the State’s censorial power.”88
Recognizing that focusing only on intent is inadequate, some courts, like the Ninth Circuit, have required both intent and speech that are “so close in time and purpose to a substantive evil as to become part of the ultimate crime itself.”89 This approach is circular and fails to draw lines at sufficiently granular levels. Solicitation is commonly recognized as a subcategory of speech integral to criminal conduct.90 The Ninth Circuit’s approach thus tautologically defines solicitation by restating the name of the broader category. In doing so, it fails to distinguish solicitation from other subcategories such as conspiracy, incitement, fighting words, or threats, all of which are First Amendment exceptions due to their crucial role in the ultimate bad conduct.91 The unsustainability of not developing more specific tests for each subcategory was on display in Sineneng-Smith, in which the Ninth Circuit concluded that subsection (iv) was overbroad in part because it did not mirror the language of typical solicitation or aiding and abetting statutes.92 By resorting to reasoning by analogy, the court assumed that the statutes used for comparison were constitutional, when, in fact, the Ninth Circuit has not provided the tools to make such a determination. This approach thus invites courts to rely on analogy in ways that are disconnected from First Amendment principles93 and offers little clarity about how solicitation should independently be defined.
Many state courts take a third approach, equating criminal solicitation to incitement.94 A California Court of Appeal, for example, has rejected the idea that a speaker’s intent should be considered and has treated criminal solicitation and incitement as the same exception to abstract advocacy.95 This approach has been squarely rejected by lower federal courts96 and implicitly rejected by the Supreme Court, which lists solicitation and incitement as separate categories of unprotected speech.97 Under the California court’s approach, speech is unprotected solicitation only when it triggers the risk of an imminent crime.98 This imminence requirement significantly cabins the reach of the exception, allowing courts to grant full protection to speech simply because the resulting illegal conduct occurs days — even hours — after the speech at issue.99
Individually, each of these lower court tests is flawed. But taken together, the fractured legal landscape preserved by Sineneng-Smith further harms both advocates and legislators. Faced with the same facts, the three approaches may lead to different substantive outcomes. Speech may be protected in one state, only for it to be unprotected when a speaker crosses state lines. Because of this inconsistency, speakers will remain uncertain whether their speech is protected, producing a chilling effect antithetical to “free speech, thought, and discourse” — “foundation[s] of our freedom.”100 Similarly, as long as there is confusion about what constitutes unprotected solicitation, legislators will struggle to draft statutes that are not overbroad under at least one of the lower courts’ tests.101 The Court was — and still is — in the best position to evaluate the various lower courts’ definitions, assess the tradeoffs between public safety and the chilling of speech, and create a uniform understanding of solicitation. It should have done so in Sineneng-Smith.
The stakes of leaving this category undefined are high. In the context of subsection (iv) alone, not all defendants are as unsympathetic as Sineneng-Smith. Potential borderline cases include a lawyer who provides know-your-rights training or represents a client in an asylum proceeding,102 a government official who declares that a city is a sanctuary city,103 a pediatrician who encourages an individual unlawfully in the country who needs vital medical care to accept treatment,104 or a charity that provides food to low-income undocumented communities.105 Moreover, as the government has conceded, the stakes extend far beyond subsection (iv) because the words “encourage” and “induce” are common in criminal statutes.106 Without a clear definition of solicitation, vital aid and advocacy live in limbo and will inevitably remain unnecessarily suppressed until the Court provides guidance as to the bounds of the exception.
As the lower courts’ attempts illustrate, it is not easy to determine when abstract advocacy becomes criminal solicitation. But the Court has risen to a similar challenge before. In Brandenburg v. Ohio,107 the Court drew a sharp distinction between incitement and abstract advocacy — a line that had been blurry for half a century — and explained that advocacy of violence can be criminalized only when it is directed at and likely to produce imminent lawless action.108 Arguably, Brandenburg’s intent, likelihood of harm, and imminence requirements provide ready tools with which the Court could have marked the boundary between advocacy and solicitation as well. The justifications for requiring intent and likelihood of harm apply naturally to solicitation, and specificity, which some scholars argue could be the sine qua non of solicitation,109 could perform a similar speech-protecting function as does Brandenburg’s imminence requirement. Given the confusion in the lower courts, the Court should have used this opportunity to articulate a definition of solicitation consistent with its First Amendment jurisprudence. Brandenburg is an example of — and possibly a guide for — the type of decision the Court should have written.