MENU

Reason.com

Free Minds & Free Markets

9th Circuit Says a Federal Law Making It a Felony to 'Encourage' Illegal Immigration Violates the First Amendment

The statute is "unconstitutionally overbroad," the appeals court says, because it criminalizes "a substantial amount of protected expression."

YouTubeYouTubeToday a federal appeals court ruled that a law aimed at curtailing illegal immigration violates the First Amendment by criminalizing the speech of anyone who "encourages" an alien to enter or reside in the United States without the government's permission. A three-judge panel of the U.S. Court of Appeals for the 9th Circuit concluded that the law is "unconstitutionally overbroad" because it "criminalizes a substantial amount of protected expression in relation to the statute's narrow legitimate sweep."

The law, 18 USC 1324(1)(A)(iv), authorizes a fine and up to five years in prison for someone 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." The maximum sentence rises to 10 years if the defendant acted "for the purpose of commercial advantage or private financial gain."

This case involves Evelyn Sineneng-Smith, a San Jose, California, immigration consultant who purported to help unauthorized home health care workers from the Philippines obtain green cards through a "Labor Certification" program that expired in 2001. Sineneng-Smith, who knew that anyone who had entered the country after December 21, 2000, was not eligible for the program, was convicted of fraud as well as violating 18 USC 1324(1)(A)(iv).

But as Judge A. Wallace Tashima notes in the 9th Circuit's ruling, which was joined by Judges Marsha Berzon and Andrew Hurwitz, the law on its face encompasses a wide range of less nefarious and less mercenary speech, including the words of "a loving grandmother who urges her grandson to overstay his visa," telling him, "I encourage you to stay." In fact, Tashima says, "situations like this one, where a family member encourages another to stay in the country, or come to the country, are surely the most common form of encouragement or inducement within Subsection (iv)'s ambit."

Another common situation, Tashima says, might involve "an attorney who tells her client that she should remain in the country while contesting removal—because, for example, non-citizens within the United States have greater due process rights than non-citizens outside the United States, or because, as a practical matter, the government may not physically remove her until removal proceedings are completed." Under a straightforward reading of the statute, "the attorney's accurate advice could subject her to a felony charge" and might even make her eligible for a 10-year sentence if the client is paying for her services.

Lest you think the government would never prosecute such violations of the law, Tashima notes a 2012 case in which a Massachusetts woman who hired an unauthorized immigrant to clean her house was prosecuted under 18 USC 1324(1)(A)(iv). She allegedly committed a felony when she "advised the cleaning lady generally about immigration law practices and consequences." It seems clear, Tashima says, that the law is "susceptible to regular application to constitutionally protected speech," and "there is a realistic (and actual) danger that the statute will infringe upon recognized First Amendment protections."

Nor is the law limited to one-on-one conversations. Tashima asks us to imagine "a speech addressed to a gathered crowd, or directed at undocumented individuals on social media, in which the speaker said something along the lines of 'I encourage all you folks out there without legal status to stay in the U.S.! We are in the process of trying to change the immigration laws, and the more we can show the potential hardship on people who have been in the country a long time, the better we can convince American citizens to fight for us and grant us a path to legalization.'" That also "could constitute inducement or encouragement under the statute."

Such speech does not amount to incitement or aiding and abetting a crime, Tashima notes. Rather, it is "pure advocacy on a hotly debated issue in our society," and "criminalizing expression like this threatens almost anyone willing to weigh in on the debate."

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • loveconstitution1789||

    Another case to be reversed by the SCOTUS.

    Aiding and abetting is a crime because you are actively assisting in a crime or covering up the evidence of the crime.

    Aiding illegals to actively break the law should be unlawful.

    More lies to cover up the fact that they dont like it that immigration without permission is...well.. illegal.

  • Tony||

    This is a website devoted to the politics of individual freedom. Why don't you go hang out at the appropriate 4chan niche or Breitbart or whatever?

  • loveconstitution1789||

    This website is run by Anarchist and Lefties.

    Trolls like you try to derail Libertarian discussions. You also try to drum up web traffic. Which would be ironic to help a "Libertarian" website.

    Instead, I and some others come here to discuss Libertarian positions on topics.

  • Tony||

    If true libertarians are indistinguishable from Trumptards, why not just call yourselves Trumptards?

    I'm no libertarian but I do highly value individual rights and don't particularly care if the individuals have brown skin or were born on the wrong side of an imaginary line on a map.

  • Last of the Shitlords||

    Well Tony, why don't you just call yourself a communist pederast?

  • bevis the lumberjack||

    Hey, lc, guess what? If you oppose statist thugs, but you want to put people in prison over speech, then I've got some bad news. You're the statist thug.

  • loveconstitution1789||

    I am against all speech crimes.

    This aint a speech crime.

    This case involves Evelyn Sineneng-Smith, a San Jose, California, immigration consultant who purported to help unauthorized home health care workers from the Philippines obtain green cards through a "Labor Certification" program that expired in 2001. Sineneng-Smith, who knew that anyone who had entered the country after December 21, 2000, was not eligible for the program, was convicted of fraud as well as violating 18 USC 1324(1)(A)(iv).

    I am sorry, you cannot see the difference between speech and aiding and abetting the commission of fraud, illegal entry into the USA, and perjury under oath.

    Even the Constitution protects "peaceful assembly" under the 1st Amendment, but does not protect assembly that is not peaceful.

  • bevis the lumberjack||

    "am sorry, you cannot see the difference between speech and aiding and abetting the commission of fraud, illegal entry into the USA, and perjury under oath."

    SHE WAS CONVICTED OF THE FUCKING FRAUD FOR HELPING THE PEOPLE OVERSTAY THEIR GREEN CARDS. THE FRAUD CONVICTION WAS NOT OVERTURNED. SHE IS GOING TO PRISON FOR COMMITTING A CRIME.

    Goddam you're thick as a brick. Go read Brandenburg and get back to us on exceptions to the First Amendment.

  • fdog50||

    I think that's right. The overbreadth issue arises because of how all-encompassing the statute's language is: it includes situations in which merely saying "You should stay here instead of going back to your country when your visa expires. The statute should require some overt act in furtherance of the crime instead of just words. It would be similar to convicting a person of being an accomplice to a robbery for merely saying "You should go out and rob a bank." As with a conspiracy crime, some other act must happen. If a person encourages remaining in the country illegally and then gives another person money to buy a fake ID, then that should be a crime. I tend to doubt that the Supreme Court will review this, but if it does, l think there could well be a Brandenburg type of analysis, looking at imminence or whether or not another act was done to further someone remaining illegally in the country.

  • CLM1227||

    This is the same as threats, isn't it?

    Generally, saying things like "I wish you were dead" is left alone, but if the person ends up dead, you are now a suspect based on the speech, but dependent on the crime.

  • loveconstitution1789||

    Poor Bevis. Very upsetting for him that he cannot understand when crimes and speech intersect.

  • bevis the lumberjack||

    Fuck off, you statist prick. You're the biggest idiot on Reason - too stupid to recognize the dichotomy between your user name and your posts.

  • ThomasD||

    "I'm running short of cash."

    Hey, have you considered displaying a firearm to a bank teller? That might solve your immediate problem.

  • ThomasD||

    There is a fine line between wit and a felony.

  • loveconstitution1789||

    bevis the lumberjack|12.4.18 @ 6:19PM|#
    Fuck off, you statist prick. You're the biggest idiot on Reason - too stupid to recognize the dichotomy between your user name and your posts.

    Poor Bevis hates that he is a joke like Hihn.

  • a ab abc abcd abcde abcdef ahf||

    loveconstitution1789|12.3.18 @ 10:20AM|#

    Do you need me to link the rules of NAFTA and USCMA so you can compare and contrast the "worseness" for us?


    Keep on Keeping Your Promises.

  • buybuydandavis||

    Even more upsetting when the newly minted constitutionalist majority on the Supremes starts *ruling* on cases.

    The Leftist years shall be a mighty river for years to come.

    #winning

  • loveconstitution1789||

    +1000 buybuydandavis

  • loveconstitution1789||

    Poor Tony. If only people would reply to his nonsense.

  • a ab abc abcd abcde abcdef ahf||

    loveconstitution1789|12.3.18 @ 10:20AM|#

    Do you need me to link the rules of NAFTA and USCMA so you can compare and contrast the "worseness" for us?


    Keep on Keeping Your Promises.

  • loveconstitution1789||

    ^new sock puppet.

  • Fats of Fury||

    So what are you doing here?

  • Tony||

    I am the ghost of libertarianism's future. I'm here to save you from yourselves.

  • buybuydandavis||

    Tony is here as the token socialist to hoot and jeer at.
    Every comments section should have one.
    One.

  • loveconstitution1789||

    Tony gets paid to undermine Libertarianism.

  • DenverJ||

    Tony actually is supporting the libertarian position here, and you are not. When Tony is right and you're wrong, well that's pretty bad.

  • Mcgoo95||

    Indeed, these are strange days.

  • loveconstitution1789||

    Tony never supports anything remotely close to Libertarianism.

    The fact that you are lying and backing up Tony tells us all we need to know about YOU.

    and mcgoo95 has been flagged as troll for months now.

  • ||

    Promoting individual freedom doesn't mean encouraging breaking the law.

    Only you would infer this.

  • chemjeff radical individualist||

    Promoting individual freedom doesn't mean encouraging breaking the law.

    That would depend on the nature of the law.

  • Last of the Shitlords||

    The validity of a law comes down to Little Jeffy's Feelz.

  • Mcgoo95||

    And the only way Shithead can win a debate, it to actually *not debate, and, instead just throw out a pejorative. I mean come on "littly Jeffy" is not original at all. Can't even come up with an original perjorative on your own. Sad.

  • ThomasD||

    Civil disobedience in the face of a moral wrong is morally right, but it also means actually putting your ass on the line.

  • Jgalt1975||

    He still too low in seniority at the Russian troll farm to get the real quality assignments.

  • Leo Kovalensky II||

    An interesting take from an absolutist on 2A. I guess "Congress shall make no law..." wasn't clear enough.

  • MatthewSlyfield||

    "I guess "Congress shall make no law..." wasn't clear enough."

    See now, that was the great error of the authors of the bill of rights. They simply should have stopped there. :)

  • buybuydandavis||

    Criminal conspiracy is not protected speech. Get over it.

  • dangfitz||

    There was no actively assisting or covering up. Here's what was illegal: "hey, if you live in one of what our President called a "shithole country", we would welcome you to come and make a better life for yourself and your family, and I don't particularly care how you get here". Had I said that a week ago, I'd have violated the law. Today, they can't touch me. I really do love the Constitution. Well, except for that whole 3/5ths thing. And the 16th Amendment. Not a fan of the 17th Amendment, either. And I might've left out the preamble to the 2nd Amendment. Other thatn that, if we could just hold the politicians down and cram the clear, plain, and unambiguous words of the Constitution down their throats, I'd be happy.

  • Azathoth!!||

    Well, except for that whole 3/5ths thing

    Wow.

    It's really strange to see someone who openly supports slavery these days. Most democrats hide their beliefs behind euphemisms like 'social safety net' and 'common core'.

    But you just come right out and say that you though things would have been better had slaveowners been given the total control they wanted.

    Damn.

  • buybuydandavis||

    "Aiding illegals to actively break the law should be unlawful."

    And it is.

    8 U.S. Code § 1324 - Bringing in and harboring certain aliens

    I've been tweeting out this law for a couple of years now.

    Next people to go after are the sanctuary cities.
    End all government aid to illegals as inducements.

    Overturning Prop 187 was totally totally illegal. Prop 187 is the Law.

    The first step to really fighting back against the Deep State and judicial authoritarianism in particular was getting a Constitutionalist majority on the Supremes. The cases are going to start rolling in.

  • chemjeff radical individualist||

    End all government aid to illegals as inducements.

    You didn't even read that CIS report that came out today, did you?

    It said that a great deal of the welfare that illegal immigrants get is from state-level sources, not the federal government.

    You can't end ALL government aid to illegal immigrants without trampling all over states' rights.

    Do you think your "constitutionalist majority" will go for that? The same judges who just ruled against a national ban on sports gambling on the grounds of the Tenth Amendment and states' rights?

    You don't want "constitutionalism". You want tyranny of the federal government against the states in order to destroy illegal immigration. You are determined to create that police state that you all claim is just a strawman myth.

  • BigT||

    Are the states not harboring fugitives? Wouldn't that be criminal?

  • buybuydandavis||

    "It said that a great deal of the welfare that illegal immigrants get is from state-level sources"

    Uh huh. Which are illegal inducements. They are breaking the law.

    Federalism does not mean that State government can't be in violation of federal laws.

    Article IV, Section 4
    "The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against invasion"

    *shall* protect
    It's not just the Federal Government's constitutionally delegated power to prevent invasion, it's their constitutionally delegated *responsibility*.

    But you keep hallucinating you can read my mind and see it filled with sugar plums of tyranny dancing in my head.
    That's seems to be the particular form your cognitive dissonance takes.

  • chemjeff radical individualist||

    You are a dictator at heart. You do not want democracy, or populism, or constitutionalism. You want a strongman to crush your enemies and enact your preferred policies even against the will of the people for their own good.

  • loveconstitution1789||

    Poor Lefties like Chemjeff.

    They hate Trump and a USA with a protected border.

  • buybuydandavis||

    "I can't refute a word you say so you must be Hitler!"

  • DesigNate||

    Speech isn't aiding and abetting, jfc lovecon.

  • loveconstitution1789||

    Conspiracy statutes would beg to differ.

    While I think conspiracy statutes are largely infringements of the the 1st Amendment, the 9th Circuit has yet to declare those statutes overbroad.

    its political.

  • Agammamon||

    'Hey, go smoke pot'

    Should that also be a crime?

  • loveconstitution1789||

    "Hey, come to the USA illegally and then I will help you get pot"

  • Dillinger||

    words not crimes.

  • buybuydandavis||

    It's amazing how insane the prospect of constitutionalism makes some people.

    Really? Words aren't crimes? You find it impossible to think of someone saying something that it's illegal to say?

    Threats? Conspiracy? Inducement to crime? Fraud? None of these ring a bell?

  • bevis the lumberjack||

    C'mon man, speaking isn't aiding and abetting a crime. Note that the court vacated her conviction for violating the speech law but left her fraud conviction in place.

    You're just like the lefties you always wail about - supporting the civil rights you agree with and wanting to quash those that you don't.

  • buybuydandavis||

    "speaking isn't aiding and abetting a crime."

    It can be. It depends what was said.

    You don't get a pass on a criminal conspiracy by saying "we wuz just talking".

  • Nardz||

    So I guess that incitement is right out now.
    And didn't some hussy in Mass just get convicted for telling a dude to kill himself? Since federal district judges get to make decisions for the entire country, I'm guessing this sets precedent and gives her grounds to appeal?

    This case aside, I'm amazed that the 9th circuit and the judges on it continues to exist. 80% of their cases that reach the supreme court are overturned. The 9th circuit is quite simply bad at its job.

  • bevis the lumberjack||

    Why is this a bad decision? The court did not strike the law down because of sympathy for illegals, they struck it down because it's overbroad. Overbroad means that it criminalizes some constitutionally protected speech. Courts have been invalidating anti-revenge porn laws for the same reason.

    Yeah, the 9th can be kind of rogue sometimes but this seems like the right decision to me.

  • chemjeff radical individualist||

    C'mon bevis you know the answer. It's a bad decision because it helps illegals! And as we all know, illegals are invader scum who deserve no quarter!

  • Nardz||

    "Such speech does not amount to incitement or aiding and abetting a crime, Tashima notes. Rather, it is "pure advocacy on a hotly debated issue in our society," and "criminalizing expression like this threatens almost anyone willing to weigh in on the debate.""

    Bullshit.
    It is - directly - advising/inciting a person/people to commit a crime and/or aiding their ability/efforts to do so.
    None of the cited examples are overly broad - they are all clear examples of direct incitement or aid.

    Granny tells her grandson to overstay his visa?
    How is that anything other than direct and overt incitement?

    You don't want illegal immigration to be a crime?
    You don't want speech urging others to commit a crime to be a crime?
    Change the laws.
    But if this 9th circuit decision stands, anyone telling X to kill Y must also be protected by the first amendment.
    And that's the debate.

  • chemjeff radical individualist||

    "I think you should rob a bank."

    Nardz, in your view, have I just committed a crime?

  • Nardz||

    "I think..."
    "You should..."

    Is that your idea of being direct?
    Anyway, your example seems to be an expression of your opinion not a direct call to action. Furthermore, it's abstract in its vagueness.
    But maybe if you told me specifically which bank to rob and I subsequently robbed it, you might have committed a crime. I certainly wouldn't bet on your chances in Massachusetts.

  • chemjeff radical individualist||

    But Nardz, I am "encouraging or inducing" you to rob a bank. How can that not be illegal speech in your view?

  • DesigNate||

    "If I was going to rob this casino, (goes into Ocean's 11 montage) this is how I would do it."

    Still not a fucking crime.

  • ThomasD||

    If someone answers in specifics, and if you then follow through on those specifics then yes, you are both guilty of conspiracy.

    If, before you commit the overt act, your interlocutor calls and says "hey man, that thing we talked about is not a good idea" then he is off the hook even if you still follow through.

  • bevis the lumberjack||

    "You don't want illegal immigration to be a crime?"

    I did not say that. I do not think that.

    I think the situation where the girl in Massachusetts was convicted after her friend committed suicide was bullshit. She didn't commit a crime.

    Speech is not aiding or abetting. In what way does it aid? Granny telling her grandson to overstay is SPEECH. It's not an action helps him break the law.

    The woman in the case was also convicted of fraud for her part in helping the illegals stay longer. That part of her conviction was not overturned.

  • loveconstitution1789||

    Until the US gets rid of all crime that makes discussing crime unlawful (conspiracy, obstruction of justice, lying, assault, threats...) making plans with people to commit a crime is unlawful.

  • Nardz||

    "Speech is not aiding or abetting. In what way does it aid? Granny telling her grandson to overstay is SPEECH. It's not an action helps him break the law."

    I generally agree, though speech that instructs someone how to commit a specific crime might be an exception (re: aiding and abetting). Haven't made up my mind on that.
    The issue is incitement. If Granny telling her grandson to overstay his Visa shouldn't be a crime, then neither should Mr. Nazi telling a crowd to kill blacks or Jews or Catholics be a crime.
    Thorny issue, but that's the debate.

  • bevis the lumberjack||

    "The issue is incitement. If Granny telling her grandson to overstay his Visa shouldn't be a crime, then neither should Mr. Nazi telling a crowd to kill blacks or Jews or Catholics be a crime.
    Thorny issue, but that's the debate."

    Doesn't the actual Brandenburg decision come pretty close to this? The exception that is carved out to 1A has to involve imminent violence. In your example, there's a chance it's illegal depending on how one would judge the likelihood of imminent violent action in response to the speech. Granny telling her grandson to stay involves zero chance of violent action in response to the speech.

  • Nardz||

    Good point. Forgot about Brandenburg.
    Still, it's a worthy debate - guess conspiracy might cover granny's speech, but I concede the broader point in light of Brandenburg.
    Advocacy would be legally ok, unless one were able to draw a direct line to actions such as rushing the border.

  • SQRLSY One||

    This is why I would ***NEVER EVEN DREAM OF*** telling people that they might blow on a cheap home-made plastic flute w/o the permission of a Government Almighty-certified doctor of doctorology!!! Because there can be NO doubt that we must ALL obey the commands of Government Almighty, since Government Almighty (here at least in the USA) has been duly BLESSED by the Sacred VOTE of Der Pepples!!! So therefor...

    To find precise details on what NOT to do, to avoid the flute police, please see http://www.churchofsqrls.com/DONT_DO_THIS/ … This has been a pubic service, courtesy of the Church of SQRLS!

  • Leo Kovalensky II||

    Now do plans for modifying or manufacturing firearms. Still illegal speech?

  • ThomasD||

    In general providing the information is not a crime. Specific encouragement to perform the modification or manufacturing - should that crime actually occur is indeed illegal.

    People sell jigs for putting the happy hole in AR15 lowers. They always include a disclaimer that putting the happy hole in an AR lower - while being in possession of full auto internals - is a Federal offense.

  • iowantwo||

    Rather, it is "pure advocacy on a hotly debated issue in our society,"

    So as long as it is 'hotly debated' judges get to make shit up.

    Like abortion and homosexual marriage.

    Stupid me, I thought hotly debated things got settled by people whos job is to debate things. Congress.

  • retiredfire||

    The First Amendment's protection of free speech was intended to be for speech that was advancing a political position. Much of its expansion into anything that comes out of one's mouth, as being protected, is not in keeping with its original intent.
    What the 9th Circus is claiming is that the immigration prohibitions aren't really laws but policy positions - "a hotly debated issue in our society" - and that those, advocating the violation of them, are just stating their positions on the policy, or "weighing in on the debate".
    No! These are actual laws, passed by the House, the Senate and signed by whichever president was in office at the time.
    It is not "weighing in on the debate" to tell someone to break these laws.
    Don't like that theses laws exist, then use the First Amendment to advocate for their repeal. Don't use underhanded, and wholly transparent, rulings to try to make them null, and void.

  • loveconstitution1789||

    The court hears hundreds of cases each year and some of them are claims of overbroad laws with requests to strike them down.

    The 9th Circuit swats those claims down like nothing.

    Gun control laws are continuously affirmed by the 9th Circuit.

    This is political.

  • posmoo||

    "Overbroad means that it criminalizes some constitutionally protected speech"

    it means there is a realistic chance that the statute itself will significantly compromise protected speech. not made up hypotheticals.

  • bevis the lumberjack||

    The example the author gave of the person making a public speech fits that definition to a t.

  • posmoo||

    they aren't supposed to strike down laws as overbroad because they can imagine a couple of examples. you can think of a couple examples of protected speech for every single law that proscribes speech that exist.

  • DenverJ||

    Which is why every such law is unconstitutional.

  • DesigNate||

    "Congress shall make no law" is pretty fucking direct.

    Fuck. Those. Laws.

  • loveconstitution1789||

    While I agree that many conspiracy laws are unconstitutional because of the 1st Amendment, they are laws.

    And nobody is clamoring to strike them down until Trump wants to enforce immigration law.

    The 9th Circuit needs to strike many more laws before I am on their side as supposedly being defenders of the 1st Amendment.

    FYI: The 1st Amendment does not protect assembly that is not peaceful.

    Some of the Constitutional Amendments do have lines.

  • posmoo||

    also the 9th could have just struck "encourages", and left "induces" in the statute. they aren't supposed to strike down an entire statue if excising specific stand alone language can save it.

  • MasterThief||

    I'd need to read more into it to be sure of my position, but on its face I agree with the decision. The 9th circuit typically gives stupid decisions that fits their political ends more than any reasonable constitutionally based principles. Despite my being significantly restrictionist on immigration it is a step too far to criminalize telling people they should enter the country or vote illegally. If actions are taken to aid in such criminal activity then charges can be pressed. My suspicion is that the decision was made fir the wrong reasons and would set a bad precedent. I also find it likely that "speech" isn't the full extent of wrongdoing that many of the people who could fall under this ruling are guilty of.

  • Dillinger||

    >>>a step too far to criminalize telling people they should enter the country or vote illegally.

    yes

  • Ska||

    And here I thought Man in the High Castle S4 was in production.

  • KevinP||

    But no, NO ONE is for open borders!

    They are just for weakening and undercutting the laws whenever and wherever possible.

  • Sometimes a Great Notion||

    An illegal once use a gun to kill someone. Will you give up your 2nd Amendment because I am not willing to give up any of them?

  • chemjeff radical individualist||

    I wouldn't put it past folks like Kevin to demand gun control for immigrants.

  • loveconstitution1789||

    Illegal Immigrants cant own guns legally in the USA.

    There is a fundamental Constitutional concept know as Privileges and Immunities Clause.

    You have to be subject to the Constitution to receive all of its privileges and immunities.

  • chemjeff radical individualist||

    What happened to "SHALL NOT BE INFRINGED"?

  • Red Tony||

    That's different. See, loveprostitution doesn't believe in individual rights, unless he personally benefits from them. Someone else benefiting from them is anethema to him.

  • loveconstitution1789||

    Ask your Lefty buddies what happened to ..."Shall not be infringed"....

    The Constitution does not allow non-Americans to be president either.

  • Last of the Shitlords||

    I'm sure Little Jeffy has a problem with that too. So many feelz from the little tyke.

  • chemjeff radical individualist||

    I am the one who goes even further than the NRA and believes that convicted felons who have completed their sentences should have the right to own guns. Because it's their RIGHT. Do you?

  • loveconstitution1789||

    Chemjeff, all gun control laws are unconstitutional.

    That means that anyone off probation or parole and out of state custody for crimes, should be able to keep and bear Arms.

    Citizens have rights and privileges above visitors inside the USA. Illegal immigrants are uninvited visitors.

  • GeoffB1972||

    Damn straight.

  • chemjeff radical individualist||

    What happened to "all gun control is unconstitutional"?

  • loveconstitution1789||

    All gun control is unconstitutional.

  • Red Tony||

    >says that gun use by non-Americans is illegal
    >claims all gun control is unconstitutional

    Loveprostitution, everybody!

  • loveconstitution1789||

    "Illegal Immigrants cant own guns legally in the USA."

    What I actually said you piece of shit liar.

    Red Tony is a liar everyone.

  • Red Tony||

    Okay, fair point. So, here's what you really said, according to your claims.

    >gun ownership is illegal in the USA unless you're a citizen
    >all gun control is unconstitutional

    Loveprostitution, everybody!

  • chemjeff radical individualist||

    All gun control is unconstitutional.

    Does that include gun control directed at non-citizens?

  • loveconstitution1789||

    Poor Chemjeff does not have an operating North Korean to English translator today to help him respond to my comments.

  • chemjeff radical individualist||

    Huh. Okay then. I guess LC1789 thinks "all gun control is unconstitutional" except for that gun control that he approves of, directed against immigrants.

  • loveconstitution1789||

    See. Chemjeff cannot understand English.

    Maybe tomorrow his translator will work.

  • Last of the Shitlords||

    FFS you're a stupid kid. Another perfect example of your sophist ideas. It's a shame your parents didn't beat you a lot more.

    Apart from that, you are definitely an argument for the pro side of the SIDS debate.

  • buybuydandavis||

    Illegal invaders don't have the right to be here, let alone the right to have arms here.

    They have to go back.

  • chemjeff radical individualist||

    Oh, so I suppose "SHALL NOT BE INFRINGED" doesn't actually mean "shall not be infringed" then.

    What about legal immigrants? Should they have the right to own guns?

  • DesigNate||

    I mean, they aren't technically wrong (in that the Constitution is a limit on the power of the US government over its Citizens) so no, technically it's not an infringement on the Citiizens, AND you're being obtuse about their position.

    However, I believe every human being has a right to self defense (and all our other rights) no matter their immigration status. In a perfect world, other countries would recognize those rights as well.

  • loveconstitution1789||

    The US Constitution enumerates powers, protects rights by restricting government, and grants rights.

    The right to a speedy jury trial was granted to Americans. The Constitution also requires that even non-Americans shall get Due Process of law.

  • Fats of Fury||

    IIRC that illegal got off "Scott Free". In San Francisco. He may have gotten a parade and the Key to the city.

  • bevis the lumberjack||

    "But no, NO ONE is for open borders!...They are just for weakening and undercutting the laws whenever and wherever possible."

    The woman was fucking convicted for fraud for helping the illegals outstay their green cards. That portion of the conviction was not overturned. Holy shit, man, think about what you're saying before you say it.

  • loveconstitution1789||

    Poor Bevis cannot understand when speech intersects with actions and is not protected by the US Constitution.

  • Tony||

    If we encourage Mexicans to come in, they're just going to rape the First Amendment to death anyway. Not a suicide pact!

  • loveconstitution1789||

    The fact that Lefties want hordes of illegals to enter the USA just means that its a bad idea.

    America should pretty much do the opposite of anything the Lefties want.

  • Tony||

    You don't even know why you care, do you?

  • Red Tony||

    He doesn't.

  • Nerþuz||

    Why are you replying to yourself?

  • Red Tony||

    I'm from the future but was sent into the past, so I have more insight into loveprostitution's motivations. Not much more, since I'm Tony, but still more.

  • loveconstitution1789||

    Poor Tony. Almost 2 years and Trump is still president.

  • Tony||

    Came in real handy for the midterms.

  • Last of the Shitlords||

    You stupid faggot, That was a weak performance for an opposition party in a midterm like that. And thanks for the senate seats bitch.

  • loveconstitution1789||

    Midterms were pretty great.

    The GOP took 4 more Senate seats from Democrats.
    The RINOs coming from Blue states mostly got the boot from Congress.

    RBG fell again, so Trump will be able to nominate a replacement soon.

  • buybuydandavis||

    "The RINOs coming from Blue states mostly got the boot from Congress."

    The most important part of the midterms was clearing out the Globalists from the Republican Party. Lots of progress on that front.

  • Dillinger||

    this pretty funny.

  • posmoo||

    I could have sworn the overbreadth doctrine required that there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court. I guess rules are only for the non-woke.

  • bevis the lumberjack||

    The author of this article gave several examples of situations in which parties before the court could have their 1A rights compromised.

  • posmoo||

    from the free speech guys at fire:

    The overbreadth doctrine is "strong medicine" and should be applied only when the overbreadth is "substantial." The Court explained in Broadrick v. Oklahoma (1973) that the law's overbroad applications must be substantial in relation to the law's "plainly legitimate sweep." Coming up with one or two hypothetical applications of a law's overbreadth is not enough. There must be numerous situations where the law is too broad.

    https://www.thefire.org/overbreadth-overview/

    feel free to read that oklahoma case. this law needs to be so overbroad it's very existence is chilling speech at this moment. no reasonable person would think that a mom saying I want you to stay to an illegal or a lawyer saying stay while you appeal your deportation order bites their tongue for fear of this statute.

  • buybuydandavis||

    "I guess rules are only for the non-woke."

    Yes.

    The Left believes in nothing but power.

  • chemjeff radical individualist||

    Said by the guy who wants to trash both the First Amendment and the Tenth Amendment if it means kicking out the "invaders".

  • loveconstitution1789||

    Theyre not Americans, so yeah invaders.

  • chemjeff radical individualist||

    Judging by the hysterical reactions thus far, we don't need immigrants to shred the Constitution. The natives are perfectly willing to do it themselves if it means stopping the illegal invader horde!

  • bevis the lumberjack||

    No kidding. You and I don't agree on immigration. But the reactions - of supposed libertarians no less (!) - to stuff like this is simply astounding.

  • posmoo||

    the 9th circuit and people like you are the ones ignoring constitutional doctrine. the court isn't supposed to make up crazy hypotheticals in order to reach a overbreadth holding.

  • bevis the lumberjack||

    In this case they didn't make up "crazy hypotheticals" to reach an overbreadth holding. The appellant was an actual human being who was actually harmed by the law.

  • posmoo||

    "The appellant was an actual human being who was actually harmed by the law."

    dude this was a facial challenge. the ruling was that it was overbroad, not as applied to this appellant. are you reading the same thing I am?

  • posmoo||

    also the 9th could have just struck "encourages", and left "induces" in the statute. they aren't supposed to strike down an entire statue if excising specific stand alone language can save it.

    they apparently couldn't even come up with a hypothetical where inducing illegal immigration would be unconstitutional.

  • bevis the lumberjack||

    The ruling was that anybody saying something as simple as "I encourage you to stay" was subject to prosecution under the law.

  • posmoo||

    as long as you now understand that the appellant wasn't an actual human being harmed by the law I leave happy.

  • loveconstitution1789||

    Poor Lefties really hate that Americans are standing up to non-Americans and keeping the US Constitution intact.

  • chemjeff radical individualist||

    "We had to destroy the Constitution in order to save America!"

  • bevis the lumberjack||

    "Poor Lefties really hate that Americans are standing up to non-Americans and keeping the US Constitution intact."

    Says the guy who is arguing for 1st Amendment to be interpreted more narrowly. You don't have much self-awareness, do you?

  • Red Tony||

    Self-awareness and loveprostitution have never been on speaking terms, and it's not self-awareness's fault.

  • loveconstitution1789||

    Poor red Tony the troll. So upset.

  • loveconstitution1789||

    Wow, the fact that the 9th Circuit is shown to have been out of control again is really setting off the trolls and Lefties.

    Its like they care about the Constitution while they are shredding it.

    Nobody is fooled.

  • buybuydandavis||

    "Poor Lefties really hate that Americans are standing up to non-Americans and keeping the US Constitution intact."

    I'm looking forward to the conniption fits when RBG gets replaced by *another* Constitutionalist.

    A river of Leftist tears!

  • loveconstitution1789||

    +100

  • Last of the Shitlords||

    "Judging by the hysterical reactions thus far, we don't need immigrants to shred the Constitution. The natives are perfectly willing to do it themselves if it means stopping the illegal invader horde!"

    And open borders botches like you are the ones with the shredder at the ready. You are the enemy within.

  • chemjeff radical individualist||

    You're the one who hates illegals so much that you will not even let the Constitution stand in your way.

  • loveconstitution1789||

    The Constitution does not protect illegals like you think it does.

  • buybuydandavis||

    "Wah! I thought criminal conspiracy was legal cuz we wuz only talkin! Wah! Muh first amendment!"

  • chemjeff radical individualist||

    Trumpian xenophobes: If you let those immigrants in, they will destroy our liberty!

    Also Trumpian xenophobes: The state must destroy our liberty in order to keep those immigrants out!

  • buybuydandavis||

    "The 1st Amendment protects criminal conspiracy"

  • chemjeff radical individualist||

    "Criminal conspiracy is any speech that isn't mean to illegals"

  • buybuydandavis||

    "I like buttercups."

    Not mean to illegals.
    Not criminal conspiracy.

    You get so dumb when you're hysterical.

  • loveconstitution1789||

    9th Circuit to be reversed ...again.

  • buybuydandavis||

    and again and again and again and again .....

    This Constitutionalism brought to you by Trump and the Deplorables.

  • chemjeff radical individualist||

    Where "constitutionalism" is now defined as "ignores the Tenth Amendment"

    Yes, Trump and the Deplorables is bringing us more of that.

  • loveconstitution1789||

    Thank God for Trump!

  • buybuydandavis||

    6 more years!

  • Red Tony||

    Is it just me, or is loveconstitution1789 becoming more Hihnlike by the week?

  • loveconstitution1789||

    Red Tony is a liar, so there's that.

  • Red Tony||

    Throw a few more (snorts) and a bit of boldface in there along with the ad hominem, and it'd be indistinguishable.

  • loveconstitution1789||

    Look Red Tony added specific Hihn language to his post.

    I guess he is Hihn after all.

  • buybuydandavis||

    He'd need a half dozen sock puppets, lots of BOLD CAPS, and some idiot math.

  • AlmightyJB||

    The law does sound overly broad to be constitutional to me. The fraud portion of the case seems warranted though.

  • chemjeff radical individualist||

    Now now. Any minute now you'll be labeled as an illegal-worshipping open-borders fanatic who hates America and wants immigrants to come here and take away our liberties!

  • Last of the Shitlords||

    No Jeffy, that's you.

  • chemjeff radical individualist||

    You're the one who hates America by wanting to turn it into a police state.

  • loveconstitution1789||

    Lefties turned the USA into a police state.

  • loveconstitution1789||

    Good thing the Democrats on the 9th Circuit struck this law down right after it was enacted.

    Oh yeah, they didnt.

  • bevis the lumberjack||

    "Good thing the Democrats on the 9th Circuit struck this law down right after it was enacted."

    Uh, that's not how review of laws works in the US. God, you're an idiot.

  • loveconstitution1789||

    Poor Bevis is so stupid he does not even know that judges can strike down statutes sua sponte

  • loveconstitution1789||

    The 9th Circuit could strike down every federal statute that violates the Constitution immediately.

    The dont and that is very telling.

  • posmoo||

    also the 9th could have just struck "encourages", and left "induces" in the statute. they aren't supposed to strike down an entire statue if excising specific stand alone language can save it.

    they apparently couldn't even come up with a hypothetical where inducing illegal immigration would be unconstitutional.

    but of course applying actually existing constitutional remedy doctrine to laws you don't like is only for the un-woke.

  • bevis the lumberjack||

    "also the 9th could have just struck "encourages", and left "induces" in the statute."

    I don't think courts can rewrite laws. They either find that they fit with the Constitution, or they don't.

    You keep trying to make this a woke vs. unwoke thing. I'm not woke. I'm just a libertarian who wants the exceptions to the Bill of Rights to be a narrow as possible. You appear to be fine to have the Constitution shit all over if it puts somebody you don't like in prison.

  • Nardz||

    You're right. As you pointed out citing Brandenburg, incitement must involve the potential for imminent violence to be criminal.
    But... as long as we have RICO, maybe they could give that a try for some of these groups

  • posmoo||

    removing a severable portion is no rewriting. if the 9th circuit felt that persuade was overboard they should have severed it, not thrown out the entire law. it is obvious from their hypotheticals they weren't addressing the inducement or fraud sections.

    I feel like you are just making shit up now and aren't trying to discuss this in good faith.

    "(When) a certain portion of the law is found unconstitutional, the rest is often—but not always—left standing.

    The history of the Supreme Court offers numerous examples of both decisions were laws have been held to have separable portions and those that have been deemed inseparable."

    https://www.conginst.org/2012/04/18/ judicial-review-and-severability/

  • bevis the lumberjack||

    "(When) a certain portion of the law is found unconstitutional, the rest is often—but not always—left standing."

    Severability applies to different sections of a law. In this case "encourage" and "induce" are in the same sentence. They're part of the same provision/section. Courts can't get that fine with it. "Here, we'll just move the comma for you" can't be done.

  • posmoo||

    there's an "or" there. they are completely independent actions. of course it is severable. wtf do you think the comma has to do with it? is english your first language?

  • bevis the lumberjack||

    They can only strike down a section of the law. Each word is not a section. They can't piecemeal edit it by removing portions of sections, much less portions of sentences. I was using the comma joke to make a sarcastic point, which you obviously missed.

  • buybuydandavis||

    Yes, that's the way law is supposed to work.

    Inducing people to commit crime is clear criminal conspiracy.

    But as you note, they're don't feel constrained by the Constitution. That's why our shiny new Constitutionalist majority on the Supremes is going to be *so* much fun.

  • JeremyR||

    63% of non-citizens on welfare

    That should be a reason to keep them out. As Milton Friedman said, you can either have open borders or a welfare state. You can't have both.

  • posmoo||

    even krugman says that

  • chemjeff radical individualist||

    From that very same study:

    Welfare receipt by working households is very common. Of non-citizen households receiving welfare, 93 percent have at least one worker, as do 76 percent of native households receiving welfare. In fact, non-citizen households are more likely overall to have a worker than are native households.

    Huh. So 63% of non-citizen households (NOT 63% of non-citizens) use at least one welfare program, but 93% of those also have jobs. Huh.

  • U. R. Huyulov||

    So they are simultaneously stealing Americans' jobs and leeching off of the taxpayers. You're not helping the cause of open borders, friendo.

  • chemjeff radical individualist||

    Huh. So if an immigrant gets a job, that immigrant is "stealing an American's job". If an immigrant doesn't get a job, that immigrant is "leeching on welfare".

    If an immigrant participates in civic life, that immigrant is presumed to be "supporting socialism". But if that immigrant doesn't participate in civic life, that immigrant is "refusing to assimilate".

    Damned if he does, damned if he doesn't.

    Is there anything that an immigrant could do - other than just simply leave - that would persuade you that hey, maybe that immigrant isn't such a bad person?

    Drink Bud Light? Vote for Trump? What?

  • Last of the Shitlords||

    You really are painfully stupid. I read your bullshit to people when I want to discredit the argument for open borders. It's very effective.

  • chemjeff radical individualist||

    I don't believe you. Because I don't believe you actually read my arguments.

  • loveconstitution1789||

    To be fair, nobody reads Chemjeffs comments.

  • chemjeff radical individualist||

    And the point of me pointing out that statistic was to combat the narrative that "63% of immigrant households on welfare" means that 63% of immigrants are lazy welfare leeches. If you actually look at the numbers, what contributes most are the two welfare programs of (1) school lunch programs, and (2) Medicare. IN THE MAIN, it's not livin' large on the dole while sitting around on the sofa watching Oprah all day.

    The anti-immigrant right wants to push a narrative that *immigration itself* is harmful to the nation, and it is up to responsible people on all sides to push back on this with facts and reason.

  • chemjeff radical individualist||

    er, rather, Medicaid, not Medicare

  • Ordinary Person||

    Define welfare because if it's the children using public education then you motherfuckers are dishonest.

  • dangfitz||

    Cool! Let's see the Supremes overturn Schenk. v US. That's the one where a professor was encouraghg young men to protest and resist the draft during WWI. The Supremes ruled that he could be prosecuted, because you can't shout "Fire" in a crowded theater. Seriously - that was the justification, and that's where that phrase originated.

  • Duelles||

    You can yell,"fire " out in the street, but in in a theater since people buy a ticket and are subject to a contract issued by a private entity it's a no go. Perhaps context matters.

  • Rich||

    a federal appeals court ruled that a law aimed at curtailing illegal immigration violates the First Amendment by criminalizing the speech of anyone who "encourages" an alien to enter or reside in the United States without the government's permission.

    So, is that law considered hate speech?

  • ||

    Not really sure how this could not "abetting a crime". The person in question was assisting them in the commission of a crime. I guess that word "abetting" dont mean what I think it mean.

  • chemjeff radical individualist||

    Once again, for the ten millionth time:
    The fraud conviction was upheld.
    What is at issue here is the SPEECH. Not her fraudulent ACTIONS.

    If I *say* that I want illegals to stay in the country, that should not be a crime. It ought to be protected by the First Amendment. And yet according to the law, it is a crime. That is wrong.

  • Duelles||

    If an action can be speech then conversely speech can be an action. No? The Alien and Sedition act was struck down and yet we have come so far.

  • Dillinger||

    >>>conversely speech can be an action. No?

    how's East Berlin in December?

  • Azathoth!!||

    If you SAY you want illegals to stay in the country it IS not a crime.

    If you SAY you want illegals to stay in the country WHILE lying to them in commission of your own crime(that's what the fraud part was--telling them they were eliigible for something when they weren't because they WERE illegal and presumably profiting from this somehow) it is a secondary crime. One that gets lumped on like 'hate crimes'. Or 'conspiracy'.

    It's there to generate more time--in this case to prevent the criminal from using the fact that these folks were illegal and had no recourse against them again.

    Everyone's getting this right? The woman was taking advantage of illegals. Hurting illegals. And the open borders crowd here is defending her.

  • chemjeff radical individualist||

    No one is defending her FRAUD.

    EVERYONE should be defending her free speech rights. Most of all the supposed "free speech absolutists" who go batshit nuts every time Twitter bans some conservative twit.

    I guess Twitter banning Alex Jones is a huge deal, but the state using men with guns to lock up a person for her speech is no big deal...

  • Nardz||

    How was her fraud not simply an expression of her rights to free speech?

  • DajjaI||

    Great, and I had just bought a bunch of shiny new woodchippers. Now what am I supposed to do?

  • Last of the Shitlords||

    Toss Jeffy in one and see if he floats. If he doesn't, try Tony next.

    I'm not sure if that's how that is supposed to work, but why not try it a few times?

  • chemjeff radical individualist||

    You're either some edgelord shitposter, or you're a sociopath. Either way, you deserve to be ignored.

  • loveconstitution1789||

    I wont ignore LotS. He's great. He keeps you dipshit trolls in your place.

  • buybuydandavis||

    Isn't Tony more the helicopter ride type?

    I'm a traditionalist about some things.

  • ford-poker||

    I use a iPad to read this fucking site and read the dumb fucking comments but every other time i scroll down a new page opens.
    idnplay poker
    poker deposit pulsa

  • Dillinger||

    probably you.

  • loveconstitution1789||

    Operator error.

  • tlapp||

    Encouraging illegal activity is protected speech? Even me as a libertarian minded person can buy that nonsense. It's called conspiracy, aiding and abetting.

  • buybuydandavis||

    You can make an argument about encouraging, but inducing or aiding would certainly be illegal.

  • DarrenM||

    Aren't there any lawyers in the Republican Party? Even non-lawyers would have been able to tell them "encourage" is too broad. "Enable" or "facilitate".would have been better.

  • loveconstitution1789||

    Lefties on the 9th Circuit Court of Appeals think the Constitution allows the government to force people to buy health insurance.

    They are lying pieces of shit who cannot even do their job.

  • buybuydandavis||

    Judicial authoritarians need to be cleared from the judiciary or the Right needs to start fighting back *in kind*.

  • Dillinger||

    "criminal speech" is retarded. 9th is correct.

  • Duelles||

    And yet, hypothetically, "go shoot an illegal alien" type speech might find one in a felonious position.

  • johnqpublius||

    I would hope the good judges of the ninth circuit would also recognize that much of what their virtually secessionist homelands declare to be hate speech under a rapidly evolving set of legal standards, thereby subject to increasingly punishing remedies at law, should be subject to the same subjective allowance of an assumption of good faith that you seem so willing to those who the law as written. In my humble opinion, expecting family members to rat on family or be censored from advising an otherwise law abiding and productive illegal, should be granted maximum judiciary latitude. I cannot imagine any but the most hidebound of Vogonic judges to not recognize the right from the wrong down in the trenches here. The key phrase is "otherwise law abiding and productive illegal".

    But what about other acts of defiance.

    Simple thoughts, such as:
    Is it a problem with black culture, or government policy, that after almost a century of trying by spending immense amounts of money on entitlements, and forcing everyone into implementing ever more intrusive and costly policy directives from mandarins on high, that the plight of black children in those hoods hasn't improved all that much?
    The left and the right can have their own "appeals to the heart" ( because either they are idiots, or they believe that their targeted clientele are idiots), but they should not be allowed their own facts, nor should they be allowed to suppress them.

  • johnqpublius||

    Expressing simple thoughts, such as:

    ... to those who are in direct violation of the law as written...

    ... maximum legal latitude...

  • johnqpublius||

    Why do I only get one preview before I submit?
    If I use the edit window and hit the"Preview" Button again, I would expect that the preview pane would reflect my most recent edits. It seemed like it failed eventually.

    ... or did I make a mistake trying to edit my thought?

    What is wrote is clumsy, unclear and pompous. Sorry!

    My grandson was educated in California primary schools, he is now attending a state university. He is smart, disciplined, well mannered, and likable.

    He does not feel he can freely express controversial conservative ideas in any of the schools he's been in for fear of being shunned as an unworthy, ignorant racist.

    That's just not right.

  • retiredfire||

    Edit in the original "comment" frame, then click on "preview" and the preview will reflect the edit.
    "Submit" puts the preview into the comments.

  • vek||

    It sounds like it might be overly broad, at least from what is written here... But I don't have a problem with a more well written law trying to accomplish the same thing. For instance, somebody who actively goes around trying to convince people to illegally enter is the same as somebody actively trying to convince somebody to go steal cars. They're both illegal, and both undesirable. This would be especially true if it was say a US citizen coyote who is ALSO trying to hustle up money.

    As much as I hate shit libs encouraging people to just come illegally with their virtue signalling laden nonsense, that should be legal free speech.

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online