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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.

NEXT: Bivens Liability and Its Alternatives

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  1. "a child … is not possessed of that full capacity for individual choice which is the presupposition of First Amendment guarantees."

    Unless that choice involves changing genders - - - - - - - -

    1. There are no clinics run by children in the country in which children and only children consult each other about medical decisions including whether a child should undergo any treatment for gender dysphoria. Even if there were, treatment of children with gender dysphoria has nothing to do with "First Amendment guarantees".

      1. Even if there were, treatment of children with gender dysphoria has nothing to do with “First Amendment guarantees”.

        To the extent that the treatment consists of speech — e.g., counseling — it does.

    2. or terminating a pregnancy

  2. Interesting puzzle, but I think sticking to principles is possible. Is it criminal (or civilly actionable; IANAL!) to encourage buying expensive things on credit, or eating too much chocolate cake? (Brings up the question of whether encouraging a cop to eat another donut would get some hate crime bonus points in those jurisdictions where cops are a protected class.)

    As despicable as I find it to encourage someone to commit suicide, it all comes down to agency. If being depressed makes someone not responsible for their actions and opens the door to prosecuting those who encourage their suicide, does not the same apply to buying or eating too much? At what point do we just accept that people have to be free to make stupid decisions, even if that includes suicide? Or do we say that considering suicide is direct evidence of needing a guardian?

    1. Is it criminal (or civilly actionable; IANAL!) to encourage buying expensive things on credit, or eating too much chocolate cake?

      I'm definitely suing that restaurant I ate at last night.

    2. I would be very concerned about criminalizing "bad" advice on the basis of knowing beforehand that it was bad, or even just not good for you. I am not concerned about it in the literal sense of the principal (defrauding people), but it is very difficult to prove something like that. And I definitely don't want to qualify every vice with healthy alternatives. "You're free to eat that chocolate cake, but please keep in mind the following nutritional information..." is not a conversation servers or customers want to have. In my limited experience, people hate doing anything for the sake of compliance when they feel their needs have already been met.

  3. Speech act theory, perhaps. The locutionary function of a sentence is what saves political discourse; words can be used to do other
    things (enter into contracts, felicitously vow to love honor and obey, threaten to send train cars of machine gunners through the striking miners), but the performative character of language is different than its expressive character. Or, put another way, I can protect your right to say "I'm going to hit you with a baseball bat" while punishing the fact that you're threatening to hit me with a baseball bat; the act of speaking might be perfectly innocent, so, clearly, something else is being punished. If X comes over to me and says "If Y sings the National Anthem to you, it means that we've decided to kill you," Y's singing of the national anthem might be a crime, despite being speech.

    So in this:

    Soto's suicide hypo: Not a crime -- utterance had no performative character

    Civil accommodation discrimination threat: "Don't come to my hotel because I won't rent to you." Anticipatory refusal of implicit offer to enter into a binding contract.

    Encouragement of dangerous conduct by incapable/infant: Warranty, perhaps.

    Fighting words: categorically allowed.

    Just a thought.

    1. I dealt with Austin's and Searle's theories along these lines, and Greenawalt's proposed adaptation of those theories, in Part III of this 2005 law review article; my view is that those particular theories don't really adequately distinguish constitutionally protectable speech from unprotected conduct. Perhaps someone else has some better proposed dividing lines, though -- much of course depends on how you define "performative," "speech act," etc.

      1. Interesting article, thanks. The situation altering / moral obligation calculus seems problematic, because it never relates back to the law, so the philosophy and law ships pass in the night. Perhaps distinguishing immanent (sic) harm from consequent harm. If, limiting it to propositions logically entailed rather than just suggested, I can paraphrase the speech into the thing which is wrongful (discriminatory refusal to contract, etc), the words themselves do something which is unlawful.

        "You should rob the bank. The watchman goes for lunch at 2AM."
        There's a bank, and I promise to help you rob it by telling you a true statement, knowledge of which is necessary for the crime. (There's no other reason I would tell you this.)

        I was sitting in a late night coffeehouse in Hell's Kitchen a few months ago, and two toughs were at a nearby table patching up an argument they'd had over the collection of a debt. "You gotta understand," one said, "when I need to use language, I use language."


  4. Never saw one prof's brief cited so extensively in SCOTUS oral arguments before...

    What of the argument that "Congress or another legislature can civilly proscribe speech that facilitates activities
    that are civilly prohibited. And if Congress -- and if that were
    really protected speech, Congress or another legislature couldn't even civilly proscribe it", so such speech is not 1A-protected at all?

    1. Professor Aditya Bamzai: “hold my beer”

  5. In trumpskis New Fascist Republic it will all be solved because telling anyone to vote against trumpski[and then his heirs ] will be outlawed

    Why waste time talking about this constitution thing, it is mere months from being rewritten

      1. Just put the internet down and slowly back away from the crazy person.

  6. It passes First Amendment strict scrutiny on its own merits, independently of whether it also falls within some First Amendment exception. The state has a compelling interest in preserving human life, and the prohibition is narrowly tailored to that compelling interest.

  7. My theory is that this sort of "incitement" should only be punishable where the inciter is able to exert undue influence on the actor due to their (ugh) position, e.g. teacher over student, priest over penitent, therapist over patient, parent over child. I would err on the side of respecting the autonomy and agency of the actor in closer cases, though, like boyfriend/girlfriend, husband/wife or lousy friend/friend.

  8. Almost any suicide is also going to be disturbance of the peace, and in many cases violate gun discharge laws.

    So charge them people that are soliciting suicide with conspiracy or soliciting disturbance of the peace. The penalty for that probably reflects their actual culpability for an act that requires quite a bit of personal resolve anyway.

  9. Prof. Volokh, any chance you could expand on your argument that the penalties for solicitation can't be harsher than the penalties for the unlawful act (and, in particular, why that is constitutionally required)? For instance, you seem to accept that there's no issue with only the solicitor being prosecuted while the actor goes free altogether. If both are prosecuted, is to fair for a judge to impose a harsher sentence on the solicitor? Can the solicitation carry higher maximum (or mandatory minimum) penalties than the target crime? If not, is it permissible if there are extra factors proven (such as pecuniary gain, as in this case)? Can solicitation of a misdemeanor be a felony? Or is there something special about the criminal/civil distinction that changes the analysis?

  10. Could the dividing line be infringement of civil rights? IANAL so tell me if there's an issue with my reasoning, but I figure that while suicide isn't a crime, killing yourself does infringe upon your right to life. I don't know if this works because I think it has the same logical problem as making suicide a criminal offense (you can only punish those who complete suicide and survive, its silly to imprison or hold someone civilly liable to themselves), but I do think there's a distinction between surrendering your own rights and someone else depriving you of them.

  11. The argument about soliciting suicide is one that I thought of many years ago, and it bothered me. At that time, however, at least some places made suicide a crime. Maybe some still do.

    Anyway, it occurred to me that by making suicide a crime, the law enabled forceful intervention to prevent it, and thus protected people who might otherwise be variously charged for assault—or something. And also that criminalizing suicide would enable punishment of folks who encouraged suicide. So I concluded those reasons probably explained the otherwise paradoxical-seeming criminalization of suicide.

    Now, of course, more people think suicide ought to be a right, which precludes punishing it. Except that it doesn't, because you can't punish someone who is dead. So maybe it would be wiser to put it back the way it was, and once again make suicide a crime everywhere, for the sake of having a lever to protect people trying to stop suicide, and punish those trying to encourage it. Whatever you choose to do, it will make no difference to a suicide, so maybe the entire focus should be elsewhere.

    I suppose folks who want a right to assisted suicide ought to get a say as well. Maybe something could be put in explicitly to define that, and permit it as an exception to the law.

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