Supreme Court

The First Amendment Right To Encourage Illegal Immigration

What’s at stake in United States v. Sineneng-Smith.

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Federal law makes it a felony for any person "for the purpose of commercial advantage or financial gain" to encourage or induce an undocumented alien to illegally enter or remain in the United States. On February 25, the U.S. Supreme Court will hear oral arguments in a case, United States v. Sineneng-Smith, which asks whether that sweeping prohibition should be struck down as an unconstitutional infringement on protected speech.

It should. Applied on its face, the federal prohibition against encouraging illegal immigration for financial gain criminalizes a wide range of lawful speech. For example, let's say that a self-described advocate of open borders writes a book urging civil disobedience in the face of what that author sees as America's unjust immigration regime. The book explicitly advises all undocumented immigrants to remain in the United States, to speak out, and to fight for their rights.

Would the sale of such a book encourage the unlawful presence of undocumented immigrants for financial gain? Clearly it would. But the First Amendment would just as clearly protect the author's liberty to write and sell such a book without facing federal charges.

Here's another example of how the law at issue criminalizes constitutionally protected speech. As the lawyers for Evelyn Sineneng-Smith point out in their brief to the Supreme Court, "the government admits telling a district court that it could use the encouragement provision to prosecute an immigration attorney for advising an undocumented client to stay in the country, and notably does not disavow that position in its brief."

Needless to say, there are plenty of good reasons why an immigration attorney might offer such legal advice. Perhaps the undocumented client has a compelling case and the lawyer believes there's a strong chance of persuading federal authorities to alter the client's legal status. The law at issue, however, makes it illegal for the lawyer to speak and act professionally in such matters.

Sineneng-Smith, the operator of an immigration consulting firm in San Jose, California, was convicted in 2010 on multiple counts of violating the law. Her position is that the law is unconstitutional on its face, not merely that it is unconstitutional as applied to her.

As the Supreme Court has repeatedly recognized, the Constitution frowns upon "overbroad laws that chill speech within the First Amendment's vast and privileged sphere." The overbroad law at the center of U.S. v. Sineneng-Smith fits that description.

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  1. Hold on while I microwave a bag of popcorn.

    1. Why? The Constitution gives Congress the power to regulate migrants, set rules for naturalization, and defend the US border from invasion.

      Not controversial at all as it’s clearly listed in the US Constitution.

      1. Which is all quite a bit different from Congress regulating citizen’s speech about/to migrants, which is the topic here.

        1. If one were allowed to use “speech” to encourage criminal conduct, then it would be okay, for example, to encourage thousands of Internet users to engage in illegal “parody”–an idea that would rapidly imperil social cohesion and spawn disorder, chaos, and rank criminality everywhere in America and, in fact, wherever the Internet is used. See the documentation of our nation’s leading criminal “satire” case at:

          https://raphaelgolbtrial.wordpress.com/

        2. non sequitur, champ

        3. A woman was recently sent to prison for encouraging her boyfriend to kill himself. I saw that as a free speech issue and the boyfriend as an idiot responsible for his own actions, but she is in prison just the same. So, it seems there are limits on free speech when it comes to promoting crime (apparently suicide is for some reason a crime).

      2. The law has nothing to do with “regulate migrants, set rules for naturalization, and defend the US border from invasion.”

        The law states that openly disgreeing with the law is a violation of the law. If the law stands, it would be constitutional to make a law that says disagreeing with Roe V Wade is punishable by ten years in prison. You cool with that?

        1. The law doesn’t actually say you can’t agree with immigration law. It says you can’t actively induce people to break the law. I think the idea that an immigration lawyer can be prosecuted for doing their job is a stretch. Now, stating a lawyer can be prosecuted for advising their client to continue to perform illegal activity, no matter what the activity, is legally questionable and in any other case besides immigration would probably result in disbarment.

          1. If I told you that pot was fun, sometimes, would that be ‘actively inducing you to break the law’?

            If I suggested you might want to rob a bank, should telling you that be illegal?

          2. The law doesn’t actually say you can’t agree with immigration law.

            I’m assuming you mean ‘disagree’ there.

          3. If you told me pot was fun that is an opinion. If you told me to smoke some pot while handing me a bag of pot, that is a crime. That is the distinction. The first is offering an opinion, the second is actively trying to get me to engage in a criminal activity.

      3. It gives the government no power to “regulate migrants”…

        1. Article I, section 9, clause 1. As of 1808, congress regulates migrants and free persons, not states.

        2. Only a moron would use a clause about slavery to give the government power to regulate the movement of free people. And LC doesn’t disappoint.

          1. Only a moron pretends that it doesn’t. So just you and a few others.

  2. The law does not mean, was not intended to apply and never has been applied to the absurd examples given in this article. It applies to people who aid and abet the crime of illegal immigration by financially profiting from aliens coming here illegally. That doesn’t mean publishing a book. If it did, writing a book about the glories of being a prostitute and encouraging other women to follow would violate pandering statutes.

    Just because it is possible to think of absurdly broad and unconstitutional interpretation of a law doesn’t make the law unconstitutional. It makes those specific applications of the law unconstitutional.

    1. The law does not mean, was not intended to apply and never has been applied to the absurd examples given in this article.

      So you’re saying there is not really a case being petitioned to the SCOTUS?

      1. No. I am saying even if this case is analogous to writing a book, it just means this application is unconstitutional not that the entire law is unconstitutional.

        1. Dude it’s not “analogous to writing a book”. On it’s face the law criminalises doing just that.
          The law states that openly disgreeing with the law is a violation of the law. If the law stands, it would be constitutional to make a law that says disagreeing with Roe V Wade is punishable by ten years in prison. You cool with that?

          1. It does in no way state openly disagreeing with the law is illegal.

          2. Read the actual documents from the brief. Even the 9th circuit questioned the plaintiffs assertion that the language applied to anything other then soliciting illegal activity. And the plaintiff acknowledged that they could find no incidents of the law being used to punish people for speech or protest.

      2. We don’t know the details Of the car and I wouldn’t trust Reason to report on it accurately. This may simply be a case in which someone who aided illegal aliens in breaking the law is grasping at straws to get their conviction overturned.

    2. “the government admits telling a district court that it could use the encouragement provision to prosecute an immigration attorney for advising an undocumented client to stay in the country, and notably does not disavow that position in its brief.”

      What are the rules on advising clients to break the law?

      1. You can’t ethically do it. And if you assist them you become a party to a conspiracy.

        1. So there’s nothing unusual about this?

          1. Not really. She is aiding and abetting a crime.

            1. So when the subject is apprehended, she can be charged. Right?

            2. Then we didn’t need another law – this was already covered under existing laws.

              1. Passing a specific law allows the legislature to set specific penalties and to ensure that the law is applied the way they intend (rather than being twisted by activists judges). So, yes, we often get new laws for things that are in theory already covered by old law.

        2. Can’t you advise them what the laws are, what the likely timeframes and enforcement mechanisms are, what conduct the law proscribes and allows? And let the client fill in the gaps about what they can do that’s illegal, but that they likely won’t get caught or deported for? Similar to the great scene in “Bonfire of the Vanities,” where the bond trader’s ‘criminal’ defense lawyer is letting him know what the law is and isn’t on hypothetically recording himself?

          I haven’t read the briefs, so I don’t know what conduct the lawyer mentioned got up to, and whether it met the criteria for conspiracy to commit a Federal felony or not.

          1. Reading the brief, it appears the 9th circuit was even dubious of the plaintiffs claims that this was aimed at suppressing speech rather than aimed at punishing those who solicit criminal activity.

      2. Yes, I am fairly certain lawyers do not have free speech protections for advising their clients to break laws. I am not sure how you can come up with a rationale for why immigration law would be an exception.

        1. Agreed, there is a world of difference between expressing a political opinion about a law, advising people of what their legal rights are [guilty or not], and giving people information about how to commit a crime and evade the law. The latter is called conspiracy and doesn’t pass legal muster simply because it is speech.

          Those who lump them all together simply because they involve words would call bullshit if that same lawyer was advising a violent criminal how to get away with the perfect crime in which they were the victim.

      3. Commiefornia State Bar Rules of Professional Conduct

        Rule 1.2.1
        (a)A lawyer shall not counsel a client to engage, or assist a client in conduct that the lawyer knows* is criminal, fraudulent,* or a violation of any law, rule, or ruling of a tribunal.*
        (b)Notwithstanding paragraph (a), a lawyer may:
        (1)discuss the legal consequences of any proposed course of conduct with a client; and
        (2)counsel or assist a client to make a good faith effort to determine the validity, scope, meaning, or application of a law, rule, or ruling of a tribunal.

        1. The government is not prosecuting her for violating professional rules of conduct. Nor apparently did she violate them. They are prosecuting her because the forms she filed – and the words she used – ‘encouraged them to stay in the country’.

          The govt is basically trying to bring back the Fugitive Slave Act of 1850. Where private citizens are required to act as enforcers of federal law – or go to jail

          1. You went full shika
            Never go full shika

            1. Like it or not – that is the analogy to what the govt was basically arguing in court. That doesn’t mean the actual law in question requires that

          2. you’re engaging in circular reasoning

      4. Staying in the country without documentation is not a crime!

        1. Yes it is. 8 U.S. Code § 1325(a) Any alien who (1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers, or (3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall, for the first commission of any such offense, be fined under title 18 or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined under title 18, or imprisoned not more than 2 years, or both.

          1. That particular law deals with sneaking in or using fake documents, not whether *once in* it is (or is not) legal to stay without documentation.

        2. You might think it is not *wrong* but it certainly is a crime. You might think it should not be a crime but it certainly is one.

          The two things have never been synonymous.

      5. If the rules dissalow it, Trump should be in jail for repeatedly advising border gaurds to break the law, insisting he would protect them.

        1. Your citations fell off.

    3. Ms. Sineneng-Smith was separately charged under 8 U.S.C. § 1324(a)(1)(A)(iv) with “encouraging” or “in-ducing” the two workers to reside in this country. Pet.2 Ms. Sineneng-Smith moved to dismiss the encouragement counts under the First and Fifth Amendments. The government argued inter alia that Ms. Sineneng-Smith had encouraged or induced the workers to stay in the country by “counsel[ing] [them] on the[ir] paths to citizenship.” JA33. Denying the mo- tion, the district court reasoned that “[b]y suggesting to the aliens that the applications … would allow them to eventually obtain legal permanent residency in the United States … [she] encouraged the aliens to remain in the country within the meaning of § 1324(a)(1)(A)(iv).” Pet. App. 73a. The court acknowl- edged that she was prosecuted for holding out “[t]he promise of a path of legal permanent residency,” which the court believed “was plainly powerful encourage- ment to those aliens to set up a life in the United States.” Id. 74a (emphasis added).

      1. Change immigration to robbery and get back to me. She ran a business that taught people and encouraged them to break the law. You think that is okay because you don’t like the law. Good for you.

        1. John
          February.20.2020 at 2:51 pm
          The law does not mean, was not intended to apply and never has been applied to the absurd examples given in this article.

          1. For example, let’s say that a self-described advocate of open borders writes a book urging civil disobedience in the face of what that author sees as America’s unjust immigration regime.

        2. By that logic, the Anarchist’s Cookbook and the Poor Man’s James Bond could both be banned as teaching about all sorts of crimes. Yet even the FBI (hardly bastions for the defense of the 1st Amendment) have said that those constitute protected speech.

          Teaching people how to and encouraging them to break laws is clearly allowed under the First Amendment right up to the point of “imminent incitement”. Neither the books nor an attorney’s advice cross that line.

          1. The authors weren’t standing over someone’s shoulder telling them how to build a bomb they knew would be used to kill people.

          2. How is the lawyer’s advice not imminent incitement?

            1. Incitement to what… Not move? By your logic the words “do nothing more than sit there” would be a violation of the law in this case.

              1. If someone is somewhere they’re presence is illegal, advising them to stay in place would be inciting them to do so, no?

        3. Change immigration to robbery

          Now change apples to oranges.

        4. Nothing illegal about running a school to teach people how to be burglars. Only speech that encourages “imminent lawless action” is unprotected. Just giving someone the skills or the desire to break the law is not unlawful.
          Watch “The Lock-Picking Lawyer” on YouTube.

        5. Dude, Trump has regularly tweeted and personally encouraged border agents to break the law, and Russia to hack us. I assume you think his speech should have him behind bars?

          1. No, just icky brown people and their enablers should be in jail. Melania also gets a pass for being an illegal, because she’s white and therefor much classier than Michelle Obama.

            1. Do you have any semblance of intellectual honesty? Or can you only argue straw men?

          2. ^Totes not psychotic
            Totes

        6. That’s not actually what that excerpt is showing.

    4. Agree and disagree in this case. She’s an immigration lawyer who oversold what she could do and what the law was to a couple of illegals. But she didn’t actually commit fraud on any paperwork – and the evidence re what she said to those illegals is of the he-said-she-said variety (and govt itself offered them a huge inducement to lie by giving them permission to stay if they testified).

      Instead of just claiming that she is not guilty of fraud or that the govt simply hasn’t proven its case against her, she wants to claim the law itself is bunk. Which is bunk. IMO, the SC should rule in her favor – but on very very narrow grounds. And it should spank the hell out of the govt for abusive prosecution. And it should let the law stay as written.

      1. Seems like the real purpose behind the govt prosecution here was to a)turn immigration lawyers into enforcement agents of the state and b)to intimidate illegals into thinking that that’s what lawyers are so that they don’t ever go to a lawyer for help on anything.

        the latter is abhorrent. It’s essentially bringing back the pre-medieval practice of ‘outlaw’ – without the medieval protections re that

      2. “…(and govt itself offered them a huge inducement to lie by giving them permission to stay if they testified).”

        This sounds like the Federal government we all know and love.

        Yeah, this sounds about right.

        Is the paperwork she helped them with, something that should only have been completed while the aliens were on foreign soil, not US soil? I don’t know much about the particulars of immigration law, but I thought it was frowned upon to be in the country illegally while the paperwork to become a legal resident was working its tortured path through the system?

      3. Why should the law which criminalizes speech “stay as written”.

        1. It doesn’t criminalize speech, it criminalizes solicitation of illegal activity. Even the plaintiff admitted that this was not the case. The author of this piece is being dishonest in what is being argued. She wasn’t prosecuted for protesting immigration law, she was prosecuted for supposedly advising her clients to break the law.

        2. Because her argument to repeal the law is essentially to rewrite the 1A as – Congress shall make no law which could possibly be misinterpreted by a zealous bureaucrat as restricting freedom of speech.

          That’s just lawyer games. The SC should be very capable of parsing the problem here. And it’s not to throw out the law – but to smack the govt bureaucrats upside the head. Of course if the govt wants to double down on their aggressive stupidity, well then the SC really has no choice but to force the repeal

          1. I almost totally agree with you on this case.

    5. I’m a little incredulous that a professional writer of English, in the age of fake news, has the gall to quote *a clause* that effectively equates to ‘for profit’ and extrapolate it to the rest of their machinations.

      Whether I agree with her position or not, I think Root’s doing Sineneng-Smith a disfavor.

      1. The courts found that the “for profit” clause is irrelevent to the free speech issues anyway.

    6. You mean like the actual absurd case that WAS prosecuted and IS before the Supreme Court?

      Absurd!

      1. What was she prosecuted for? Not saying immigration law was wrong. What she was prosecuted for was supposedly telling her clients to continue to break the law. The question is the validity of the claim that she was inducing her clients to continue to break the law. The plaintiff herself even admitted that the so called troublesome wording is common and has never been interpreted to include mere speech, but has only been applied to those actively inducing criminal to continue criminal activity. Jfree’s interpretation seems to be far more correct then this biased drivel Reason decided to bless us with. The author doesn’t even bother to review the actual case but links us to the briefs from the lawyers.

    7. “The law does not mean, was not intended to apply and never has been applied to the absurd examples given in this article.”

      I have bad news for you John… “Intended to apply” means NOTHING to our Lords and Masters! WHO ever passed ANY law, whose intent was to infantize us all, to the point where the USA is the ONLY nation on the planet, where citizens are considered to be SUCH infantile morons, that they need a doctor’s permission to blow on a cheap plastic flute?!?!? The lawmaker’s intentions are meaningless and irrelevant, compared to what actually HAPPENS, after the laws are passed!

      To stay safe from the Flute Police, please see what to NOT do, here! http://www.churchofsqrls.com/DONT_DO_THIS/

    8. “It applies to people who aid and abet the crime of illegal immigration by financially profiting from aliens coming here illegally.” Also known as human smuggling which is why this article is a ridiculous tortured argument by someone who seems oblivious to what the point of the law is. But yeah sure, the Supreme Court is going to rule that human smuggling is expressive speech and therefore constitutional /s

    9. You say that . . . but look at how these sorts of laws have been applied elsewhere.

      For example, what constitutes supplying ‘material assistance’ to a terrorists actually does include giving them legal advice.

      1. Also its amazing that you talk about how the law is intended when you know as well as all of us that that is irrelevant in the United States.

        What matters is how the law *is written* and what prosecutors can do with that text.

    1. Can’t wait for you guys to find out about toilets. cc:Shikha

  3. Sineneng-Smith, the operator of an immigration consulting firm in San Jose, California, was convicted in 2010 on multiple counts of violating the law.

    I am going to set up a burglary consulting firm. I will train people in the art of burglary and teach them how to get away with it and encourage them to make it their hobby and or careers.

    If the government passes a law making my business a crime, is it a violation of the 1st Amendment? I don’t see how. My business is encouraging and training people to best commit crimes. This is no different. Reason pretends it isn’t because they refuse to accept that illegal immigration is a crime.

    1. The government argued inter alia that Ms. Sineneng-Smith had encouraged or induced the workers to stay in the country by “counsel[ing] [them] on the[ir] paths to citizenship.”

      Given the above, a better analogy might be the government passing a law in which explaining burglary law to someone who then goes out and commits burglary and prosecuting the one for simply explaining the law.

      Or rather, since the violation of law in question is one of existing in violation of the law and not a specific act like burglary, it might similar a law making it illegal for a lawyer to give legal advise to a person violating bigamy laws

      1. Wow, not sure what happened there. It should read:
        it might be more similar to a law…

      2. And that is a far better argument as to why the USSC should overturn this conviction, not because the law criminalizes free speech. That is a huge stretch. The law here was poorly applied, and she was prosecuted for supposedly inducing criminal activity. This is a case of prosecutorial misconduct, not criminalizing speech.

    2. Jesus you are a tool.
      There are businesses that teach people how to deal cards and other forms of gambling. That’s perfectly legal whether or not the individual student chooses to exercise his knowledge at a legal casino or a backroom book.
      Likewise, the old tome “The Anarchist’s Cookbook” was literally a book about how to make illegal shit and use it. This book is STILL available for purchase because words DO NOT equal action.

      1. What book did Evelyn Sineneng-Smith publish?

      2. The Cookbook is ambiguously directed information that is (potentially) factually true without a specific targeted audience that is further explicitly instructed to carry out an illegal activity.

        This lawyer sat down a particular set of individuals and, presumably, said “Do this…” where this was an act she knew to be illegal.

        That makes these two issues worlds apart. If I hand you a rock and say “Here… throw this through that window!” then I am aiding you in an illegal act. If I say to you, “If you throw this rock at that window, it will break,” I have given you true and legally protected information.

        1. If I hand you a rock and say “Here… throw this through that window!” then I am aiding you in an illegal act. If I say to you, “If you throw this rock at that window, it will break,” I have given you true and legally protected information.

          It’s really kind of sad from a libertarian standpoint that people can’t make this distinction and/or can’t recognize that 12 angry people could/should/would look into the issue with greater effort than their one-sided armchair ideology.

          1. Not so many libertarians around here anymore. Instead we have a lot of xenophobic, simple men who want a strong leader to tell them what is right and who to hate.

            1. You do realize his comment equally, if not more, applies to you then those who you demagogue?

            2. But enough about Michael Bloomberg.

      3. Except when those words are provided to people performing said action who would not have been able to act otherwise. Knowing how to make a bomb doesn’t incite you to do it, but telling someone who comes in looking to build one has already been incited and you’re an accessory to their crime.

    3. I sure hope the government doesn’t decide that computer hacking is illegal. Nobody will ever be able to learn how to do penetration testing.

      1. Ever done any penetration testing $park¥?

        Did you just go hack a site without the owner’s consent or did you set up clear and explicit documentation of what was to be tested, how and when?

        Because you can take the exact same set of actions in either scenario and one is completely legal while the other can be considered a federal crime.

        1. Thanks for making my point.

          1. Just being clear, your argument or point is that Sineneng-Smith is a professional immigration penetration tester?

            What if she weren’t acting on behalf of random Mexicans but on behalf of Russians or Iranians?

            Sounds very much to me like a general law that should stand and details that a court should be considering.

            1. If you read the brief that was nicely liked to ‘their brief’ you can read all about what she does, what she did in this particular instance, and why it’s being challenged.

              She helped some illegals fill out some forms and then did not tell them to leave the country.

              1. If you read the brief that was nicely liked to ‘their brief’ you can read all about what she does, what she did in this particular instance, and why it’s being challenged.

                As to the rest of my point. Let’s say she did as much for Russian hackers or even Iranians? No court could/would/should touch her? Fuck no.

              2. And if this is the case the is good reason to question the validity of the government’s case, unless the law requires them to leave the country after filling out the form and she knew this but continued to advise them to stay despite this being an illegal activity.

    4. I am going to set up a burglary consulting firm.

      By the way, you do know that there are companies that currently do this, right?

      1. Mock burgle, yes. Actual burgle, (nominally) not without getting charged.

        Sineneng-Smith just happens to be an actual burglar who claims that her actions are protected free speech.

        1. Sineneng-Smith just happens to be an actual burglar

          No she isn’t, she’s a consultant.

          1. No she isn’t, she’s a consultant.

            A consultant being rebuked (by the authority to which she allegedly consults) for giving bad advice.

            There may be an argument that a federal law preventing fraud is redundant or that a clause in the law forbidding something based on profit violates libertarian sensibilities, but the idea that a fraud is getting caught up in a legal battle for perpetrating fraud is a constitutional crisis is melodramatic.

            1. Just so you’re aware, the appeals court agreed with her and overturned her initial conviction.

              1. Just so you’re aware, the appeals court agreed with her and overturned her initial conviction.

                And, conviction overturned, the story ends happily ever after.

                Or are you suggesting that this should’ve gone before a court, should’ve been appealed, and should be before SCOTUS?

                JFree (of all fucking people) called it. It will be a narrow rebuke and the broader law will likely stand.

                One thing slightly different than the pentesting community is that, as I understand it, the illegal immigration litigation community is wrought with fraud. The idea that the Government shouldn’t be able to prosecute these people, both ways, is absurd. Especially because of free speech.

    5. John, this is NOT a good argument. There is no constitutional power to ban teaching people things.

      It is supposedly illegal to training people to “beat a polygraph machine”.

      Teaching people how to get into buildings is not illegal. So it’s all in what words you use to describe your business.

      The Bright Line test for crimes should be whether YOU participated in the crime. If Burglary is the crime, you either entered the property or not.

      With this immigration scam, these people are assiting illegals in getting over the border, getting documents to scam the US gov, and/or giving them aid or comfort.

      1. Out of this state desire to PREVENT crimes the Constitution has been violated when states ban “burglary tools”, bomb making books, etc.

        Lock pick sets are used by locksmiths to open doors, so they clearly have a use.

        Bombs are not illegal under the 2nd Amendment.

        Teaching people how to make drugs should not be illegal either, since the state has no Constitutional authority to ban drugs or any other product.

    6. Is it a violation to teach people how to pick locks? Because there are a bunch of those videos on youtube.

      What crime is she encouraging and training them to commit? Are these clients of hers in another country, where she advises them how to commit and get away with the crime of illegal immigration? Or is she in the US, finds a client who has committed that crime, and is advising them how to comply with the law and become a legal resident from that point forward?

      Agreed that Root’s point in the article is stretching it, a lot.

      1. Advice on how to comply with the law would be to simply say “Go back for now and do it again the right way… here is how.”

        To say, “So… you broke a law and havent gotten caught yet? No problem… keep it up for now and we will see if we can file some paperwork to make it legal. Until then, keep your head down while you keep breaking the law,” is very different.

    7. If the government passes a law making my business a crime, is it a violation of the 1st Amendment?

      It is!

      I don’t see how.

      Well, don’t start a law school then.
      The Progressive got away with teaching people to make nuclear weapons. I don’t think burglary or border-jumping is somehow worse.

    8. There’s nothing illegal or unethical with teaching people to pick locks, scale buildings, or do stake outs.

      Knowledge, even knowledge that can be used maliciously, is not a crime to know, learn, or teach.

  4. So for you 2nd Amendment absolutists (I am one also, actually), explain how this law passes the muster of:
    “Congress shall make no law… abridging the freedom of speech, or of the press”

    I don’t see a clause that specifically says they can regulate speech in the case of financial gain or in the case that your speech may encourage someone to break a law.

    1. I don’t see a clause that says you can’t threaten to kill people if they don’t give you money.

      1. That’s correct. If we want a “clear and present danger” clause then we should have amended the Constitution to have one.

        But you wouldn’t equate credible threats of violence with what is essentially telling someone to trespass would you? Who is the victim in the case of the latter?

        1. But you wouldn’t equate credible threats of violence with what is essentially telling someone to trespass would you? Who is the victim in the case of the latter?

          Go fuck yourself with this bullshit.

          1. Haha. Is that your best argument?

            1. Your first paragraph demonstrated that you know exactly what my point was. Your second is bad-faith bullshit. Go fuck yourself.

        2. But you wouldn’t equate credible threats of violence with what is essentially telling someone to trespass would you? Who is the victim in the case of the latter?

          You mean besides the owner who’s property was trespassed upon *and* the guy who was legally advised to break the law? What you’re really asking is “Other than those two people who is the victim?”, right?

          1. You mean besides the owner who’s property was trespassed upon

            The majority of Americans didn’t ask the owner of the property in this case when they made the law. It’s highly likely that Evelyn Sineneng-Smith owned the property that the “illegals” were on at the time of her counseling. If she thought they were trespassing shouldn’t she have contacted her local law enforcement?

            Or are you arguing that collective property rights (citizens own the whole USA) are more important than private property rights (individuals own the land for which they have a deed)?

            1. It’s highly likely that Evelyn Sineneng-Smith owned the property that the “illegals” were on at the time of her counseling.

              So? I don’t own Area 51, Fort Knox, the Chicago Mercantile Exchange or the Target across the street. If I knowingly and legally advised you to trespass I would be breaking the law.

              If she thought they were trespassing shouldn’t she have contacted her local law enforcement?

              You’re confusing your machinations with what actually happened. Moreover, you’re making the case that a court *should* be looking into this. Did she own the property on which they were staying or did she have some manner of plausible deniability that they were commuting from Mexico or on vacation at their family’s house, or contacting her from a/the embassy or whatever? Fuck if you or I know, the jury did/does.

            2. Or are you arguing that collective property rights (citizens own the whole USA) are more important than private property rights (individuals own the land for which they have a deed)?

              You’re the one arguing that there’s no victim when a lawyer advises someone to trespass (and they do). I’m not arguing the position but “collective property rights over individual property rights” is rather overtly the more libertarian option relative to “no property rights”.

              1. Whose property were the illegals trespassing on when they were presumably in Sineneng-Smith’s office?

                1. Whose property were the illegals trespassing on when they were presumably in Sineneng-Smith’s office?

                  So, your argument isn’t about criminal trespassing or bad legal advice, your issue is rather nakedly immigration. Moreover, your stance would make it monumentally more difficult to prosecute actual fraudsters who are actually ripping off immigrants by protecting their illegal actions as free speech.

                  I can’t tell if you’re retarded or just delusional.

                  1. Of anyone should have a case here, the immigrants have a civil case against the lawyer, potentially, for giving them bad legal advice.

                    I’m still struggling with how speech is a criminal offense.

                  2. Leo isn’t big on thinking about things beyond the most superficial level

            3. Whether YOU like it or not, the United States Government has supreme control over all US Territory. The states has control within that US Territory.

              Your property rights fit within that framework.

              1. Whether YOU like it or not, the United States Government has supreme control over all US Territory

                Try squaring that with the takings clause.

                My god. This immigration issue is like gold when trying to get someone to appeal to their authoritarian leanings. Keep up the good work LC.

                1. The immigration restrictionists are authoritarian little shits.

                  The Sidd Finchs of the world would happily sicc the cops on all of us and if they were to “accidentally” shoot someone like Ms. Sineneng-Smith, well, oh well!

                    1. How many people would you see the cops murder in order to enforce your border restrictionist fantasies?

                    2. And jeff bitches about demagoguery…

                2. Leo doesnt like that Libertarians are okay with tiny and limited government and some rights voluntarily given up to form that very small government under rule of law.

                  1. Keep licking those boots LC.

    2. You forgot about how the 1st Amendment does NOT protect unpeaceful assembly.

      It also does not protect normally free speech when you are violating the rights of other people. It also does not protect normally protected speech when you are violating the enumerated powers of the US Government (regulate migrants and rule for naturalization).

      Article I, Section 8:
      To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;

      Art I, Section 9:
      The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.

      1. It also does not protect normally protected speech when you are violating the enumerated powers of the US Government (regulate migrants and rule for naturalization).

        Are you saying the rights of the government (chuckle) outweigh our rights in the bill of rights?

        And you’re still holding on to that claim of being a libertarian?

        1. Poor leo. Still all butthurt that the US Constitution and Libertarian principles do not cater to your opinions.

          Its funny that you already lost so you’re trying to spin what I said into something you wanted me to claim.

          1. It also does not protect normally protected speech when you are violating the enumerated powers of the US Government (regulate migrants and rule for naturalization).

            So you think that the enumerated powers outweigh individual rights sometimes? I don’t understand your position fully from the quote above. Please clarify.

            1. Read what I said and stop putting your little stupid twist on the words, leo.

              We all know you cannot win the Constitutionality of Congress regulating migrants, naturalization, and national defense, so youre acting out again.

              1. I’ve given you a few opportunities to walk back your little authoritarian quote there. I hope it haunts you on this forum forever.

                1. Rich coming from Leo “But seriously, who are the victims of fraud and trespass anyway?” Kovalensky II

                  1. Whose property rights, specifically, are being violated when illegal immigrants are in the privately owned office of Sineneng-Smith, for example?

                    1. But you wouldn’t equate credible threats of violence with what is essentially telling someone to trespass would you? Who is the victim in the case of the latter?

                      Leo “Credible threats of violence, legal fraud, criminal trespass, illegal immigration… all victimless crimes that can only be conflated in the defense of *these* immigrants” Kovalensky II

                    2. Leo had to go way off topic to avoid the ridiculous burn he got.

                      Leo will learn someday not to fuck with Libertarians. His nonLibertarian positions just get exposed for the garbage that they are.

                    3. Neither of you can answer the question. whose property rights are violated when immigrants are presumably invited into a lawyers office.

                      The question exposes the collectivist in you. Only a total collectivist nativist asshole could argue that the collective property rights of the state Trump those of the individual.

                    4. Internationalists of the world, unite!

                      Imagine there’s no heaven
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                      No hell below us
                      Above us only sky
                      Imagine all the people living for today

                      Imagine there’s no countries
                      It isn’t hard to do
                      Nothing to kill or die for
                      And no religion too
                      Imagine all the people living life in peace

                      You may say I’m a dreamer
                      But I’m not the only one
                      I hope someday you’ll join us
                      And the world will be as one

                      Imagine no possessions
                      I wonder if you can
                      No need for greed or hunger
                      A brotherhood of man
                      Imagine all the people sharing all the world

                      You may say I’m a dreamer
                      But I’m not the only one
                      I hope someday you’ll join us
                      And the world will live as one

                  2. Mad, would you agree or disagree with This statement:

                    It [the first amendment] also does not protect normally protected speech when you are violating the enumerated powers of the US Government (regulate migrants and rule for naturalization)

                    1. Irrelevant and bordering on nonsensical. “Could The Constitution make a stone so heavy that even the Government, including The Constitution itself couldn’t lift it?”

                      Was Sineneng-Smith acting on their behalf and/or in a legal advisory capacity? The only act(s) proscribed as protected by the 1A are speech and peaceable assembly. Shitty legal advice that violates federal law is not protected.

                    2. The only act(s) proscribed as protected by the 1A are speech and peaceable assembly.

                      Sorry, speech, peaceable assembly, and petition for redress of grievances. The latter being *exactly* what she’s doing.

                    3. It is redress of grievances unless she knowingly told them to remain in the country, contrary to the law. Then she is not simply redressing grievances but instead advising them to commit a criminal act. I am not sure if the law does or does not require them to leave. If the former than the government’s case is entirely wrong and should be decided as such. If the former I don’t buy that she was simply addressing grievances. She was then inducing others to commit a crime. Rather she agree with that crime or not is immaterial. She can contact her congressperson to get the law changed, she can protest, she can lobby, she can run for congress and try to change the law etc. It no longer is redressing grievances once she crosses into knowingly advising others to break the law.

      2. Additionally, the 2nd Amendment is a protection that hurts nobody nor the government.

        The protected 1st Amendment actions can hurt government officials in various ways but they are still protected.

        There is no 1st Amendment protection to aid and abet people in violating federal law that is constitutional.

        1. Are all these extra clauses that you’re applying in the part that says “Congress shall make no law” or are they covered somewhere else?

          Which part of the Constitution says that you can’t aid and abet someone through mere speech, or more specifically, that Congress has the authority to make those laws but not others limiting speech?

          1. You should know that the 1st Amendment specifically says “Congress shall makes no law”…. while the other 9 Bill of Rights don’t caveat with “Congress shall…”.

            Of course the 14th Amendment makes all that moot since all federal protected rights now are the minimum protections states must have.

            Second, aiding and abetting involves physical action not simply speech.

            It’s why conspiracy crimes are such bullshit. If you never personally committed the crime, you’re culpable for simply talking about a crime? Bullshit.

            Talk all you want about violating US immigration law. Convince non-Americans to break US law. That is all protected speech, freedom of the Press, and peaceful assembly.

            1. Second, aiding and abetting involves physical action not simply speech.

              Irrelevant to this case.

              At oral argument, government counsel conceded that the statute was “different from aiding and abetting” because merely “offering to assist someone suffices”

              1. SCOTUS Question to resolve:
                Whether the federal criminal prohibition against encouraging or inducing illegal immigration for commercial advantage or private financial gain, in violation of 8 U.S.C. 1324(a)(l)(A)(iv) and (B)(i), is facially unconstitutional.

                BTW: “Inducing” can be physical action, like inducing labor.

                1. But that’s not the question specifically in this case as far as I know it. The defendant’s “encouragement” as far as I can tell is all through speech.

                  1. That is what is being contested. Was it entirely by speech or did she take a more active role, i.e. telling them to break the law? If she actively told them to break the law, then she was inducing them to criminal activity. If she was simply providing information on the law, and not directly telling an individual personally to break the law, that is free speech. If she was telling Sven “fill out this form, this way and even though the law requires you to return to Sweden while it is process, ignore that part of the law” then her actions are legally questionable at best.

                    1. +100000

                      There is a bright line between Americans talking about any topic, Americans helping people break the law, and attorneys providing legal advice to clients.

                    2. Hey soldiermedic. Why don’t you rob a bank and see what happens?

                      Oh do you want me thrown in a cage for the words I just said?

                    3. Was it entirely by speech or did she take a more active role, i.e. telling them to break the law?

                      Are you arguing that she told them to break the law by a means other than speech? I’ll ask again, what part of “Congress shall make no law” says that speech that tells someone to do something isn’t protected?

                    4. Chemjeff your example again misses the point. You asking me why don’t I rob a bank isn’t a crime. You stating “I am going to go rob the First Community Bank, want to help?” is a crime. Do you understand the fucking difference numbnuts?

                2. More #FakeNews from Reason.

                  ‘ Federal law makes it a felony for any person “for the purpose of commercial advantage or financial gain” to encourage or induce an undocumented alien to illegally enter or remain in the United States. ‘

                  There is no limitation to “commercial gain” in terms of legality of an act which “encourages or induces an alien to come to, enter, or reside in the United States” .

                  It is illegal regardless of motive.

                  There is only a distinction in the penalty of 10 years vs. 5 years for commercial vs. not in the in the penalty section of the law, between U.S.C. 1324(a)(l)(B)(i) and (B)(ii).

                  https://www.law.cornell.edu/uscode/text/8/1324
                  U.S.C. 1324(a)(l)(A)
                  (iv)encourages or induces 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 law; or
                  (v)
                  (I)engages in any conspiracy to commit any of the preceding acts, or
                  (II)aids or abets the commission of any of the preceding acts,
                  shall be punished as provided in subparagraph (B).
                  (B)A person who violates subparagraph (A) shall, for each alien in respect to whom such a violation occurs—
                  (i)in the case of a violation of subparagraph (A)(i) or (v)(I) or in the case of a violation of subparagraph (A)(ii), (iii), or (iv) in which the offense was done for the purpose of commercial advantage or private financial gain, be fined under title 18, imprisoned not more than 10 years, or both;
                  (ii)in the case of a violation of subparagraph (A)(ii), (iii), (iv), or (v)(II), be fined under title 18, imprisoned not more than 5 years, or both;

  5. “for the purpose of commercial advantage or financial gain”

    I really hate that the framers put this exception in the First Amendment.

  6. ctrl-F “Irwin Schiff”

    *no matches*

    1. Now ctrl-F the non-existent title of the non-existent book that Sineneng-Smith didn’t write.

      Once you’re done there, go ctrl-F any of Irwin Schiff’s books for “disclaimer”.

  7. Well, she is a lawyer, so she must be guilty.

  8. This article is amusingly absent in details of what the convict actually did.

    1. So a typical Reason article on criminal justice or other legal issues.

      It gets old, having to have the comments section do their homework for them.

      1. Davis’ Law of Reason:
        At Reason, the journalism that counts occurs in the comments section.

  9. Brilliant. As long as we’re letting GOP and Dem infiltrators rewrite successful LP planks to alienate voters, why not dig out the 1980s Republican and Screw Magazine subsidized planks making child molesting not just legal but mandatory? Bringing Ebola and Coronavirus carriers into These States is sure to attract as many voters as the child molesting planks. Helping alien smugglers gull idiots into uninspected entry is as much a violation of rights as the kleptocracy sending prohibition agents to destroy foreign economies with superstitious ku-klux laws!

  10. Gee what a surprise.
    Enforcement of victimless crimes leads to all of our rights being undermined.
    If only this could have been predicted with reference to numerous historical examples.

  11. And just to be clear.
    The Sidd Finch’s and the Johns and the Nardz’s and the JesseAZ’s and the Shitheads and the buybuy’s and all of the other right-wing assholes would very gladly sic the police on anyone if they believed they were harboring illegal immigrants.

    And if those police just happened to use lethal force on citizens? Oh well! Too bad so sad! Can’t make an omelet without breaking some eggs! The survival of the state is more important than what happens to some trifling individual! USA! USA!

    I do have to give credit to LC1789 though, he may be a Trump-fellating moron, but at least he gets this one right. Speech that falls far short of imminent incitement is not and should not be a crime. Period.

    Do not listen to the right-wing assholes who claim that immigration restrictionism is somehow compatible with liberty. It is not. This example is clear evidence of such.

    1. Ah, Hihn the Lesser has begun his enemies list.
      You’re progressing exactly as foretold

      1. If the police shot me for harboring an illegal immigrant, you would not shed a tear.

        1. I want to go on record saying that I discourage police from shooting racebaiterjeff on sight when they come to #LockHimUp.

          FYI: “Harboring” is literally the term used in the criminal statute. If you plan on breaking a law, it’s best not to publicly describe your plans in the exact terms used in the criminal statute.

          8 U.S. Code § 1324 – Bringing in and harboring certain aliens https://liicr.nl/2J1fUo9

        2. I would not shed a tear if anybody shot you, jeff

    2. Your entire post is intellectually dishonest. You claim it is a victimless crime, others disagree with that interpretation. You then label them as authoritarian assholes because they disagree with your assessment. You further disingenuously argue anyone who supports any form of border enforcement and immigration law is a right wing asshole who is authoritarian. However, many support looser immigration laws, and making it easier for people to legally immigrate but also support stricter border enforcement to discourage people from illegally entering. You create a false dichotomy and argue against a straw man you have created to demonize any who is on the opposite side of your viewpoint. Most are arguing this law in and of itself is not an assault on free speech, but that in this case the law may have been misapplied. The question is did she knowingly induce people to file falsified paperwork and or incorrect paperwork with the sole purpose of aiding them in breaking the law.That is what the courts should decide. It appears that the prosecutor’s case relies solely on witness testimony. I do not see the validity of her claim that they are prosecuting her for speech, but I do question the validity of the prosecutor’s case. I agree with Jfree that this case should be narrowly decided. But I am sure that you will label me a right wing asshole because I support any form of border control, because you automatically assign evil motives to those who are opposed to your dogma. You then use language to dehumanize them and demonize them because it is easier then actually admitting that intelligent people can disagree with your view in good faith.

      1. Oh no. I do not doubt the sincerity of those who are in favor of border restrictionism. I believe they are completely sincere in their beliefs. But do not try to pretend that these beliefs are consistent with a commitment to human liberty, because they are not.

        So either you are committed to liberty, which includes the liberty to freely associate with foreigners without needing a permission slip from the state.

        Or, you are not, meaning you place a higher value on the survival of the state instead of the value of human liberty. You’re willing to use force if necessary to restrain me from exercising my liberty to associate with those whom you deem to have violated the sanctity of borders.

        You have to accept what “border security” really means in the present context.

        1. “But do not try to pretend that these beliefs are consistent with a commitment to human liberty, because they are not.”

          Do not try to pretend that your Open Borders beliefs are consistent with a commitment to American liberty, because they are not.

        2. No, they are not consistent with your opinion of liberty. But that requires your opinion to be the only correct one. It is trying to impose your biases on others and then when others disagree you then assign evil motives rather then try to have an adult conversation. It is simplistic and sophomoric, it disallows any sense of nuance and creates a false dichotomy. Your way or the highway, which you claim is why you hate the parties yet you are just as dogmatically partisan as those who you deride.

        3. Your entire argument is the True Scotsman fallacy. You have declared it is all about freedom of association, but part of the freedom of association is the freedom to not associate. I have the right to decide I don’t want to associate with people who come here to commit criminal or terrorist activities (and no, before you demagogue, I am not even close to stating illegal immigrants come here for the purpose of committing crime or terrorism, I am using an analogy), your right to freedom of association doesn’t allow you to decide that you can then import criminals and terrorist. Even you have admitted that you support some form of back ground checks to keep these classes out. That is a form of border control. Once you accept that, it is just a matter of arguing over how much control.

      2. The problem with your argument is that the “victim” in immigration law is a figment of some collectivist property rights imagination. When the “victim” of a crime is society at large, well… You might just be a collectivist and not an individualist.

        1. Spot on Leo.

        2. “Destroying America has no victims.”

    3. “buybuy’s and all of the other right-wing assholes would very gladly sic the police on anyone if they believed they were harboring illegal immigrants.”

      Speaking of which, just what is your address?

  12. of course it should not

  13. If it is alright to “encourage” others to break immigration laws, when the encourager stands to gain financially (remember that’s one of the requirements to break the law), then it must be OK to encourage, say, a twenty something male to go buy an AR type rifle and shoot up the high school he attended, especially if you get a kickback for every dead victim.

    This is precisely the equivalent, just a different law to break……

    it is called “aiding and abetting”, and ift falls into a special category as this woman was proifiting from those who DID break immigration law by collecing her lawyerly fees from either the accused lawbreaker, an NGO pro-immigration outfit, or the family, friends, etc of the accused lawbreaker.

    1. I don’t see the logic there.

      By the same token if an oncologist in Alabama tells his patient “marijuana can help with the nausea. You might try that”

      It is the same to you as advising someone to buy a rifle and shoot up a high school. Because the law is the law. Technically I realize a court might see it that way but I would oppose it.

      I don’t know much about these sophisticated legal arguments here. I have studiously avoided legalese for years but don’t seem right to me.

      It is really not about the law is it? Just depends where you sit on the immigration issue how people judge it. You can interpret law however you want.

      1. Correct. The rule of law is a myth.

        If we can interpret the words “Congress shall make no law” to mean that Congress can make laws in circumstances such as this then the Constitution isn’t worth the paper it’s written on. Libertarians should always err on the side of individual rights over state power when there isn’t a clear violation of individual rights at stake. There isn’t one here, and no self-respecting libertarian should take up the side of the state in this case.

        1. It is good in theory, but if we accept your interpretation one possible (probable?) outcome would be undercover cops would be free to go up to people in public and entice them to commit a crime without fear of punishment for entrapment because the cop was just using their freedom of speech.

    2. “when the encourager stands to gain financially (remember that’s one of the requirements to break the law)”

      The limitation to “financial gain” is simply more #FakeNews from Reason.

      Search the page for 1324. My long post with that number shows the legal language where the law against inducement is not *limited* to financial gain.

      Financial gain only increases the maximum prison term. Still illegal w/o financial gain.

  14. Encouraging illegal activity can make you an accomplice and subject to prosecution. So yes you are free to say it and pay the appropriate consequences.

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