Sineneng-Smith and Outlawing Solicitation of Legal Conduct

How far does the "speech integral to criminal conduct" exception go?

United States v. Sineneng-Smith, which was just argued Tuesday, deals with, among other things, the "speech integral to criminal conduct" exception to the First Amendment (though perhaps it might best be viewed as an overarching principle that guides the Court in recognizing certain exceptions). Under that exception, some speech can be criminalized if it is sufficiently closely linked to a nonspeech crime, or a crime that involves already unprotected speech, such as distribution of child pornography. How close the link has to be is an important and not fully settled question; but the broader doctrine does exist, e.g.:

1. The Court has held, in United States v. Williams (2008), that speech closely related to specific criminal behavior is punishable as a special case of "speech integral to criminal conduct." "Offers to engage in illegal transactions are categorically excluded from First Amendment protection," the Court held, citing Giboney v. Empire Storage & Ice Co. (the granddaddy of the "speech integral to criminal conduct" exception).
2. In Williams, the Court concluded that "laws against conspiracy, incitement, and solicitation" should be treated the same way. The Government relies on the "speech integral to criminal conduct" principle in Sineneng-Smith (see pp. 31-32 of its brief).
3. Threats of illegal behavior have historically been used as a classic example of speech integral to such behavior. (See, e.g., Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 456 (1978), citing a labor threat case, NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), as an example of the speech-integral-to-conduct doctrine.)
4. Fighting words, which are restricted because of a danger that they can provoke criminal retaliation, have also at times been folded within this doctrine: Cox v. Louisiana, for instance, cites Chaplinsky v. New Hampshire (the leading fighting words case) alongside Giboney as an example of a situation where "conduct mixed with speech may be regulated or prohibited."

As a post-Williams Seventh Circuit opinion put it, citing Williams, "Speech integral to criminal conduct, such as fighting words, threats, and solicitations, remain categorically outside [the First Amendment's] protection." United States v. White (7th Cir. 2010).

Likewise, the Court has also treated some speech as civilly actionable when it is integral to civilly actionable conduct. That was true in some of the threats cases, and the Court reaffirmed it in Rumsfeld v. FAIR, 547 U.S. 47, 62 (2006), suggesting that threats of public accommodation discrimination can themselves be made actionable under laws banning such discrimination. (For more all this, see my 2016 Cornell article that's all about this exception.)

But, I argued in my Sineneng-Smith amicus brief, this principle can only justify treating solicitation as akin to the solicited conduct. Solicitation of civilly punishable conduct ought not be criminalizable consistently with the First Amendment, because that would go beyond treat­ing the solicitation as "integral to criminal conduct." As Justice Gorsuch noted in the Sineneng-Smith oral argument,

Normally, in the criminal law … to avoid [First Amendment problems], we … don't allow punishment for speech greater than the underlying conduct itself. That would seem to be a basic First Amendment value.

Likewise, as Justice Breyer noted, for "a solicitation of a crime statute is constitutional, … the first condition and most important is that what you are soliciting is a crime." I would add that civil liability for solicitation would be constitutional if it focuses on soliciting conduct that is itself civilly actionable.

Now this position naturally leads to some difficult hypotheticals. For instance, Justice Alito asked in Sineneng-Smith,

There's a teenager … who has been very seriously bullied and is very depressed and is thinking of committing suicide. The teenager has a gun in his hand. He calls up the one person he thinks is his friend and he says, I'm thinking of killing myself. And the person on the other end of the line says, you've said this before, I'm tired of hearing this from you, you never follow through, you're a coward, why don't you just do it, I encourage you to pull the trigger. Now is that protected by the First Amendment? Is that speech protected by the First Amendment? Attempting to commit suicide is not a crime.

Here's my thinking: If such speech is constitutionally unprotected, it must be unprotected under some other theory. Speech integral to the commission of suicide can be many things, but it can't be speech integral to criminal conduct, precisely because suicide isn't criminal conduct. Likewise, it can't be solicitation of crime, when there's no crime being solicited. (Perhaps one can argue that restricting such speech in some situations is the very rare sort of content-based restriction that passes strict scrutiny, on the grounds that it is narrowly tailored to a compelling government interest; but that's a different argument.)

Indeed, the Minnesota Supreme Court in State v. Melchert-Dinkel (2014) discussed this very scenario, in striking down a ban on encouraging suicide (but upholding, under strict scrutiny, a ban on speech that aids suicide):

Thus, the major challenge with applying the "speech integral to criminal conduct" exception is that suicide is not illegal in any of the jurisdictions at issue. The holding in Giboney specifically stated that the exception was for speech integral to conduct "in violation of a valid criminal statute," and there is no valid statute criminalizing suicide here. Giboney (emphasis added). It is true, as the court of appeals noted, that "suicide, despite no longer being illegal in Minnesota, remains harmful conduct that the state opposes as a matter of public policy." But the Supreme Court has never recognized an exception to the First Amendment for speech that is integral to merely harmful conduct, as opposed to illegal conduct.

Likewise, Justice Alito asked: What if a state decriminalizes some behavior (say, alcohol consumption) by people who are in a "vulnerable position"—for instance, because they are minors or have "diminished capacity"—but wants to criminalize encouraging such behavior? Well, sometimes, as Sineneng-Smith's lawyer pointed out, the behavior remains criminal for one of the participants, for instance if the law doesn't criminally punish children for buying alcohol or drugs, but criminally punishes sellers, or doesn't criminally punish prostitutes but criminally punishes those who employ or patronize them. Specifically encouraging a child to transport drugs, for instance, is still integrally related to some responsible adult's criminal drug transportation scheme.

But say some law genuinely targets harmful but noncriminal behavior, for instance encouraging children or mentally handicapped people to engage in legal but dangerous behavior (e.g., swimming in a place that the encourager knows is beyond the encouraged person's skills). Perhaps that should be punishable, under some specialized exception justified by the listener's diminished capacity: For instance, laws that bar distributing sexually themed material to children, even if it's protected for adults, are sometimes justified on the theory that "a child … is not possessed of that full capacity for individual choice which is the presupposition of First Amendment guarantees." Ginsberg v. New York (1968) (Stewart, J., concurring). The exception, though, should be specifically justified and delineated on that sort of theory—not because the speech is "solicitation" of legal conduct, or because it is "integral to criminal conduct" when there is no underlying criminal conduct.

In any case, that's my idea about how this important but often opaque doctrine can be developed. We'll see within a few months what the Court thinks.