Free Speech

Supreme Court Weighs Free Speech and the Right to Encourage Illegal Immigration

The justices heard oral arguments this week in United States v. Sineneng-Smith.


Federal law imposes criminal penalties on any person who "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." On Tuesday, the U.S. Supreme Court heard oral arguments in a case that asked whether that federal law should be struck down for restricting speech that is protected by the First Amendment.

The case is United States v. Sineneng-Smith. Evelyn Sineneng-Smith, the operator of an immigration consulting firm in San Jose, California, was convicted in 2010 on several counts of illegal "encouragement." Her lawyer, Mark Fleming, told the justices that the federal law itself should be wiped from the books.

"This is a statute that uses very broad words. It uses them in the context in which all they can do is ban free speech," Fleming argued. "The result is that vast amounts of truthful and accurate and heartfelt speech that's in no way related and much less integral to any actual crime is subject to five years in federal prison. I would submit that the First Amendment is wisely designed to protect us from just this kind of law."

Several justices seemed potentially open to the merits of that argument.

"What about a charity?" Justice Brett Kavanaugh asked Deputy Solicitor General Eric Feigin. "A charity provides food to someone who's in the country unlawfully…it's designed to provide food for people who can't get it elsewhere and they know that the people taking advantage of that are here unlawfully?"

Feigin conceded that such a charity might find itself on the receiving end of unwanted federal attention. "To the extent that a charity were doing something that violated the plain terms of the statute," Feigin answered, "that amounted to giving—effectively giving money to people to—or something that is the equivalent of money to people with the purpose that those people reside in the United States unlawfully, that might violate the statute."

Justice Sonia Sotomayor made a point similar to Kavanaugh's. "I read 'encourage or induce an alien to come, enter, or reside in the U.S., knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law,'" Sotomayor told the deputy solicitor general, and it "seems to me" that all sorts of constitutionally protected speech and activity would be in trouble. "The hospital that's treating…an illegally present child with a disease, the church who provides worship to illegal aliens," both of these real-world examples, Sotomayor pointed out, "would be a violation of the statute."

Justice Neil Gorsuch raised another First Amendment concern with the government lawyer. "What do we do about the fact that most applications, maybe not all, but most applications here of the underlying conduct would be civilly punished?" Gorsuch asked. "And here you wish to criminally punish the speech."

In other words, while it is merely a civil offense to be unlawfully present in the United States, the federal law at issue makes it a criminal offense to encourage or induce such unlawful presence. "I could be reckless in my speech in encouraging somebody [to remain in the country illegally] and wind up a federal criminal even though the underlying violation is merely civil. Is—is that the gist of the government's position here?" Gorsuch demanded. "Normally, in the criminal law," Gorsuch observed, we "don't allow punishment for speech greater than the underlying conduct itself. That would seem to be a basic First Amendment value."

A decision in United States v. Sineneng-Smith is expected by June.

NEXT: In South Carolina Debate, Democratic Primary Descends Into Chaos

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  1. Is promoting other illegal activity, say pedophilia, also protected? What about encouraging people to firebomb mosques? The acts remain illegal and will be prosecuted, but the speech might not be.

    1. This. What about — oh, I don’t know — encouraging your boyfriend to kill himself?

      1. Especially if he’s a mopey loser.

        1. Another example that Gorsuch may wish to consider is illegal “parody,” where the “underlying” offense is damage to reputation. Even in states like New York, where damage to reputation is a mere “civil” offense and hence unfortunately no longer a crime, it is clear that law enforcement may criminalize the use of a distinguished academic’s good name to damage his reputation–no matter how “truthfully,” because the truth is not a defense to this crime, even if it’s a defense to the “underlying” offense. See the documentation of our great nation’s leading criminal “satire” case at:

    2. Lots of speech can be disgusting. That doesn’t mean that speech is action. What about hate speech that incites violence? What about instructions to 3D print a gun that is used to commit murder? At what point do we draw the line and say that the person who committed the act is accountable for their actions nobody what someone might have told them.

      And you ignore that the case at hand is for a civil violation, not a criminal one. Comparing that to pedophilia or firebombers is a false equivalence.

      “Congress shall make no law” is pretty clear. Don’t like it, or want certain circumstances covered? Amend the Constitution.

      1. At what point do we draw the line and say that the person who committed the act is accountable for their actions not someone who might have told them to do it.

        edit button?

      2. One of the serious legal arguments over the second amendment was that “the right to keep and bear arms” was not an absolute right defined for the first time by the second amendment, but a well-understood euphemism for the general right, excluding imbeciles, infants, senile adults, felons, prisoners, enemies, etc. Few people today consider artillery as “arms”, most people limiting it to personally carried arms, excluding MANPAD anti-aircraft missiles; but up until sometime in the 1800s, merchant ships had cannon and no one gave it a second thought.

        The problem is what you left out: “…. freedom of speech and the press”. Who defines what is speech? Nude dancing and art exhibits have been considered speech.

        The real problem is letting government judges and government prosecutors define the limits on government. There is something fundamentally wrong with that.

        1. The real problem is letting government judges and government prosecutors define the limits on government. There is something fundamentally wrong with that

          Yes. And the Constitution has language to allow the people and the states to weigh in on their side of the contract with their government. There should probably be about 300 amendments to the Constitution at this point in history. Instead, we let the courts write our amendments through judicial review and precedents and we the people have no check on that power. It’s supposed to be hard to amend the constitution, not to defend it.

      3. If McCarthyism has not been stopped, we would all very likely have far more personal freedom and less government intrusion than we do now. All because, for some insane reason, Marxism isn’t criminalized. Like it should be.

        So we have shitbags like Bernie in Congress, and running for president, instead of dangling at the end of a rope for treason.

        1. I feel like you don’t know what “personal freedom” means. Can’t put my finger on why, though…

        2. An excellent point. Even crazy, authoritarian opinions like this… while truly, utterly disgusting… should be protected speech.

    3. “Is promoting other illegal activity, say pedophilia, also protected? What about encouraging people to firebomb mosques”

      The libertarian answer would be that both those cases are largely protected. Of course it is not all black and white. If you knowingly tell a pedophile information necessary for them to commit a crime, then you are an accessory- like informing them of the schedule of a victim, or instructing them specifically how to evade the law- you could be in violation. This, of course, is why we have courts- to look at the facts of a particular case and determine whether or not a line has been crossed.

    4. Because those things you mention are equivalent to crossing political boundaries without permission. Yeah. Sure.

      1. Technically an act of war

        1. A three-year-old Mexican or a totally drunken Mexican stumbles across the border… Time for war on Mexico, in the Authoritarian War-Monger’s Handbook!

          1. It’s not like every Mexican over the age of 3 is a stumbling drunkard, SQRLSY. Don’t be racist.

          2. Go blow on your lung flute, crank.

    5. The precedent you want is Brandenburg v Ohio. The court decision says that yes, you absolutely can promote and encourage illegal activity unless you cross the line to encouraging “imminent lawless action” or “true threats”. In other words, the illegal action you are encouraging must be both imminent and likely. Advocacy of illegal action “at some indefinite future time” is protected.

      1. “Inducement” to crime is not similarly protected.

        “the illegal action you are encouraging must be both imminent and likely.”

        Illegal immigration is both imminent and likely.

    6. Another example where it is legal to “promote” an illegal activity. In this case, also good public-health policy.

  2. OT Post: Military history, viewed poetically
    Capture of the Dutch fleet at Den Helder

    Nice ice for sale,
    For ten cents a pail?
    It ain’t so nice,
    When ya wanna set sail!
    Your mobility will fail!

    From your enemy, you’ll take the heat,
    For them, it’s neat to be fleet of feet,
    I see ice-sea-horses will defeat your fleet!

    Don’t be iced in, in a shallow bay,
    You shall NOT have a good day!
    Napoleon, you now shall obey!
    Else he’ll give you a drubbing,
    Not just a mere Dutch-rubbing!

    1. So I’m guessing you saw the same YouTube video on this subject that I watched yesterday?

      1. My son is a military history buff… He told me about this yesterday. I bet he saw the video, if this is a new video… I’m not much for videos; I’d rather read text. But wow! This seems to be some pretty unique history!

        1. I generally prefer text as well, but this particular person makes a lot of really great videos. He’s known as the History Guy. Look him up when you’re on Youtube

    1. Good point! For exhibit “B”, I propose prosecuting sellers of Bibles for encouraging MURDER (supposedly commanded by God) in retaliation for harmless offenses like gathering firewood on the Sabbath!

      1. I encourage you to commit suicide right away. It’s the most libertarian thing you will ever do.

        1. Shitsy Shitler… Wants to out-do Hitler!

          In Hitler’s Germany, they greeted one another in public with “Heil Hitler”!

          Shitsy Shitler wants us to greet one another with “commit suicide”!
          THIS is the typical far-right vision of a Perfect Society under Perfect Authoritarians, Ladies and Germs!!!

  3. We certainly haven’t beaten this case into the ground here over the last week. Is every Reason writer going to take a crack at it?

    1. Seems like a legitimate free speech debate. Would you prefer more coverage of partisan bickering?

  4. You absolutely have the right to speak against laws, including giving out information on how to circumvent them. Obvious to anyone who isn’t a state-loving bootlicker.

  5. Immigration is like drugs. The war against it is so vital we can’t possibly adhere to constitutional protections.

  6. So the case is going to try to draw a fine line between free speech and conspiracy to commit a crime?

    1. AGREE… INTENT is the keyword here and has to be established on a case-by-case basis.

      Congress probably should rewrite the law and include the keyword ‘intent’ but the all-to-global idea that the actors of a planned crime are untouchable “until” the actual crime is carried out under the disguise of being “free speech” is about as substance-less as pretending that a bank robber can threaten a person with a loaded gun and be untouchable so long as they don’t steal any money and “actually” shoot anyone.

    2. *Inducement* to crime is not a free speech issue.

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