Crowd-Checking Forthcoming Amicus Brief on the Solicitation Exception in U.S. v. Hansen

The U.S. Supreme Court has agreed to hear U.S. v. Hansen, a case having to do with when speech encouraging civilly prohibited but not criminal conduct (there, remaining in the U.S. without proper immigration authorization) can be criminally punished. I think the answer should be that the solicitation exception to the First Amendment allows (1) the criminal punishment of solicitation of criminal conduct, but (2) only civil liability for solicitation of merely civilly actionable conduct. I had filed a brief on this and other matters in U.S. v. Sineneng-Smith, and this particular question was discussed during oral argument; so I thought I'd file such a brief here in Hansen, focusing on this question. (I plan on sending it to the printer Tuesday morning.)

Because the brief is on my own behalf, my only interest is in getting things right, not in serving a particular client. I therefore thought I'd post it here, and ask for any suggestions for how it can be improved or corrected; please post them in the comments, or e-mail me at volokh at law.ucla.edu. Thanks!

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Summary of Argument

The "speech integral to criminal conduct" exception is a tremendously important feature of First Amendment law. It is the basis for criminalizing solicitation of crime. Volokh, 101 Cornell L. Rev., supra, at 991-93. It has also historically influenced the incitement exception, id. at 993-97, the fighting words exception, id. at 997, the child pornography exception, id. at 999, and the true threats exception, id. at 1003.

It is therefore important that the boundaries of the doctrine be defined precisely, and not unduly broadly. In particular, because the premise of the doctrine is that speech should be legally tantamount to the crime to which it is integral, only solicitation of criminal con­duct can be made criminal consistently with the First Amendment. Solicitation of merely civilly punishable conduct—such as solicitation of remaining in the country unlawfully, U.S. Br. at 38—cannot be made criminal, though this Court's recent cases suggest that it can be punished civilly.

Argument

I. Solicitation may be criminally punished as "integral to criminal conduct" only if it consists of solicitation of crime

Who cut Samson's hair? Many would quickly answer, "Delilah." But the Bible actually says (Judges 16:19 (King James)),

And she [Delilah] made him sleep upon her knees; and she called for a man, and she caused him to shave off the seven locks of his head . . . .

The hair was not cut by Delilah herself, but we not only treat Delilah as culpable for the conduct she ordered—many of us actually remember the story as involving Delilah's actions. This reflects the deeply held moral intuition that ordering a thing done is tantamount to doing it oneself.

The criminal law likewise often treats ordering an act done, or soliciting its doing, or aiding and abetting its doing, as simply other ways of committing the act. The Model Penal Code, for instance, states that "A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable," including through purposefully "solicit[ing]" or "aid[ing]" the commission of the crime. Model Penal Code §§ 2.06(1), (3). (The Code also includes a separate offense of solicitation, id. § 5.02(1), for situations where the solicited crime is not committed; but it provides that solicitation is generally a "crime[] of the same grade and degree as the most serious offense that is . . . solicited," id. § 5.05(1).) And this reflects longstanding American criminal law principles: "every man whose intent contributes to the act, in any degree which the law can notice, is in law a partaker of the crime." Joel Prentiss Bishop, Commentaries on the Criminal Law § 264, at 233 (1856).

This Court's decision in United States v. Williams, 553 U.S. 285 (2008), builds on this principle: "Offers to engage in illegal transactions are categorically excluded from First Amendment protection," id. at 297 (citing Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 (1949))—as is solicitation of illegal transactions, id. at 298. And Giboney did indeed punish speech that in effect solicited the crime of restraint of trade, because the First Amendment does not protect "speech or writing used as an integral part of conduct in violation of a valid criminal statute." 336 U.S. at 498; see Volokh, supra, 101 Cornell L. Rev. at 989-97. When a statute validly criminalizes conduct—whether murder, distribution of child pornography (such as in Williams), restraint of trade (such as in Giboney), or criminal immigration violations—then soliciting violations of such a statute can generally be criminalized, too.

But while this longstanding traditional approach can justify criminally punishing speech that is integral to the commission of a crime, that is so precisely because the speech is related to a crime. Giboney, which is often cited as authority for this exception, expressly stated, "It rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute." 336 U.S. at 498. Other cases have done the same. See, e.g., New York v. Ferber, 458 U.S. 747, 761-62 (1982) (likewise); Osborne v. Ohio, 495 U.S. 103, 110 (1990) (likewise); United States v. Stevens, 559 U.S. 460, 468 (2010) (citing Giboney but using "speech integral to criminal conduct" as a generic name for the exception); United States v. Alvarez, 567 U.S. 709, 717 (2012) (plurality opin.) (likewise). Indeed, this Court's earliest endorsement of criminal punishment of encouragement of crime, in Fox v. Washington, stressed that "encouragements . . . directed to a particular person's conduct, generally would make him who uttered them guilty of a misdemeanor if not an accomplice or a principal in the crime encouraged." 236 U.S. 273, 277 (1915) (emphasis added).

To be sure, in Rumsfeld v. FAIR, this Court extended this principle to civil regulation of speech that is an integral part of civilly regulated conduct:

The compelled speech to which the law schools point is plainly incidental to the Solomon Amendment's regulation of conduct, and "it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed." Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 502 (1949).

547 U.S. 47, 62 (2006). And the opinion likewise noted that, under the same logic,

Congress, for example, can prohibit employers from discriminating in hiring on the basis of race. The fact that this will require an employer to take down a sign reading "White Applicants Only" hardly means that the law should be analyzed as one regulating the employer's speech rather than conduct. See R. A. V. v. St. Paul, 505 U. S. 377, 389 (1992) ("[W]ords can in some circumstances violate laws directed not against speech but against conduct").

Id. See also Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 398 (1973) (Douglas, J., dissenting) ("There comes a time, of course, when speech and action are so closely brigaded that they are really one.") (citing Giboney as an example); IBEW v. NLRB, 341 U.S. 694, 705 (1951) (upholding, with little discussion, civil prohibition on inducement of civilly actionable secondary pressure); Int'l Bhd. of Teamsters v. Vogt, Inc., 354 U.S. 284, 293 (1957) (likewise approving of courts civilly "enjoin[ing]" picketing that was connected to violation of "civil law").

But this reasoning focuses on equating conduct and speech that is integral to the conduct. The regulation of speech is seen as incidental to the conduct. Posting a sign threatening discrimination is viewed as itself a form of discrimination. The reasoning does not suggest that the speech can be punished more severely than the conduct.

The First Amendment often justifies protecting speech more than related action, as when abstract ad­vo­cacy of crime is protected. It may sometimes tolerate treating speech as equally punishable with action. But it cannot allow treating speech as more punishable than the action that it encourages.

Thus, for instance, the government cannot "afford[] a greater degree of protection to commercial than to noncommercial speech," Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 513 (1981) (plurality op.), because that would "invert[ the] judgment" that "noncommercial speech [is accorded] a greater degree of protection than commercial speech," id. Likewise, the government cannot afford a greater degree of protection to conduct than to noncommercial speech that is supposedly "integral" to that conduct: that would invert the constitutional judgment that speech is accorded a greater degree of protection than other conduct.

More broadly, when the government "attempts the extraordinary measure" of punishing speech, "it must demonstrate its commitment to advancing this interest by applying its prohibition evenhandedly." Florida Star v. B.J.F., 491 U.S. 524, 540 (1989). This Court held so with regard to a ban on publishing the names of rape victims, which covered only the media and not "the smalltime disseminator." Id.; see also id. at 541-42 (Scalia, J., concurring in the judgment). But the same logic applies here: When the government attempts the extraordinary measure of punishing speech urging certain action, it must demonstrate its commitment to advancing its interests by generally applying its prohibition evenhandedly to the action and not just to the speech.

To be sure, the solicited actors may in some situations escape criminal liability based on the specific facts of the case. The solicitor, for instance, may know of the circumstances that make an act criminal, but the direct actor might not know and thus lack the required mens rea—e.g., if Susan solicits Agnes to transport something, and only Susan (not Agnes) knows that it is contraband. Cf. Model Penal Code § 2.06(2)(a) (holding people accountable as accomplices when they cause "an innocent or irresponsible person to engage in [prohibited] conduct"). Or the direct actor may be insane or underage, while the solicitor is fully competent. Id.

But that does not change the broader principle: Solicitation of conduct can be treated as criminal, on the theory that it is integral to the underlying conduct, only when the underlying conduct is itself criminal—whether or not the particular solicited person is, under the peculiar circumstances of the case, legally culpable for the crime.

II. Solicitation of suicide, if it can be punished, can only be punished under strict scrutiny

In the Sineneng-Smith oral argument, a question from the bench asked whether speech soliciting suicide fits within the "speech integral to criminal conduct" exception. Oral Arg. Tr. at 34-35, United States v. Sineneng-Smith, No. 19-67 (2020). The answer is no; any restriction on such speech must be judged under strict scrutiny, though it is possible that it might pass muster under that test.

The Minnesota Supreme Court dealt with this very question in State v. Melchert-Dinkel, 844 N.W.2d 13 (Minn. 2014). It reasoned,

[T]he 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. 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.

Applying the "speech integral to criminal conduct" exception to harmful conduct would be an expansion of the exception, and following the guidance of the Supreme Court, we are wary of declaring any new categories of speech that fall outside of the First Amendment's umbrella protections.

Id. at 19-20 (citations omitted). And this analysis is correct. Broadening the integral-to-criminal-conduct exception to cover solicitation of merely harmful conduct would unmoor the exception from its rationale—speech would be criminalized not just as part of the criminalization of the conduct, but even when the conduct is noncriminal. And such broadening would yield an exception with no discernable boundaries: The government would have a free hand to bar a wide range of speech so long as it counsels behavior that the government views as "harmful."

After all, the speech-integral-to-criminal-conduct exception is not limited to speech integral to deadly criminal conduct. It is not limited to speech integral to violent conduct—consider Williams itself, which involved solicitation of a nonviolent crime. It is not even limited to speech integral to extremely serious criminal conduct. Solicitation of restraint of trade, for instance, is punishable, as Giboney illustrates. Solicitation of criminal public nudity was given, in Fox v. Washington, as an early example of criminally punishable solicitation. Solicitation of vandalism would likely be criminally punishable, too.

If solicitation of merely harmful but legal conduct were treated as punishable, then that would likewise extend far beyond solicitation of suicide, and cover solicitation of far lesser conduct that the government declared to be harmful. This Court has rightly rejected such uncabined extensions of historically recognized exceptions. See, e.g., Stevens, 559 U.S. at 468-70 (declining to extend the integral-to-criminal-conduct exception to distribution of visual images depicting harm to animals, when that harm was not criminal).

Instead, if this Court concludes that certain kinds of speech soliciting or aiding suicide should be criminalizable, it should do so by recognizing that the speech does not fall within an exception, and that restrictions on the speech must be judged under strict scrutiny. The Minnesota Supreme Court in Melchert-Dinkel did precisely that in upholding a ban on speech that assists suicide, 844 N.W.2d at 22-23, after concluding that "the State has a compelling interest in preserving human life," id. at 22. And the court likewise applied strict scrutiny in evaluating a ban on speech that advises or encourages suicide, but held that the particular Minnesota statute in that case was overinclusive with regard to the government's interest. Id. at 23-24.

III. Speech seeking to engage in a criminal transaction can be criminalized even when the transaction is criminal only for one side

In the Sineneng-Smith oral argument, counsel for the United States suggested that the government "could decide to make prostitution a civil offense and still criminally punish recruiting prostitutes." Oral Arg. Tr. at 29, United States v. Sineneng-Smith, No. 19-67 (2020). This responded to a question from the bench noting that sometimes a person's participation in an offense "is not made criminal because of the vulnerable position of the person who is engaging in that act." Id. at 29. See also U.S. Br. at 44 (arguing that "A legislature's choice to, say, make prostitution a civil rather than criminal offense should not come at the price of constitutionally invalidating criminal sanctions against facilitating or soliciting prostitution.").

Indeed, acting as a pimp or as a brothel owner can be criminalized as profiting from another's prostitution, even if the prostitution is merely a civil offense—such moneymaking behavior is not itself speech. "[R]ecruiting prostitutes" into participating in this behavior could also be criminalized, as integral to the crime of profiting from another's prostitution.

Likewise, say the law makes it merely a civil offense—or no offense to all—to sell sex (in order to diminish the "vulnerable position" of prostitutes), but a crime to buy sex. Whether or not such an approach is sound, it would not violate the First Amendment. And criminalizing speech that seeks to buy sex would thus be constitutional, because it would simply be an attempt to commit a crime (buying sex).

But the government could not make prostitution a civil offense and still criminally punish merely urging someone to become a prostitute. Once the government concludes that prostitution should not be a crime, speech related to such noncriminal conduct must be noncriminal as well.

IV. The "speech integral to criminal conduct" exception needs to be properly cabined

More generally, the "speech integral to criminal conduct" needs to be defined clearly and not unduly broadly. It potentially covers a wide range of activity, far beyond just solicitation, and thus potentially opens the door to the government punishing any behavior that seems in some way connected to some behavior that is criminal, or civilly actionable, or just dangerous.

Indeed, lower courts have already overread the exception. To give just one example, the Ninth Circuit upheld a ban on sexual orientation conversion therapy of minors on the theory that:

"Just as offer and acceptance are communications incidental to the regulable transaction called a contract, the professional's speech is incidental to the conduct of the profession." . . . . [A]n application of the First Amend­ment [to restrictions on medical and mental health treatments that involve speech] would restrict unduly the states' power to regulate licensed professions and would be inconsistent with the principle that "it has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed." Giboney, 336 U.S. at 502.

Pickup v. Brown, 740 F.3d 1208, 1229 (9th Cir. 2013) (citation omitted).

But that cannot be the right analysis. When a psychotherapist counsels a patient about how the patient might try to suppress his same‑sex sexual attraction, the psychotherapist is not promoting or threatening any separate crime or tort. He is just conveying advice, or teaching a patient how to avoid some legal behavior and to engage in other legal behavior instead.

He may be doing this over an extended set of interactions (a "course of conduct" in that sense of the phrase), but that does not make the speech regulable. A constitutionally protected lecture does not become unprotected when it becomes a lecture series. Advocacy of a political boycott does not become unprotected just because it consists of a "course of conduct" that includes speaking, gathering names of people who aren't complying with the boycott, and publicizing those names. NAACP v. Claiborne Hardware Co., 458 U.S. 886, 909-10 (1982).

In all these cases, including in the professional‑client speech case, there is no "course of conduct" to which the speech is "integral" or "incidental" apart from a course of speech. We can call the speech "professional consultation" or "psychotherapy," but speech is all that it is. Just as the proposed offering of advice to terrorist groups about their international legal options was treated as speech in Holder v. Humanitarian Law Project, 561 U.S. 1, 27-28 (2010), so the proposed offering of advice to a patient should be treated as speech as well. Perhaps, as in Holder, the speech could still be regulated, whether because the restriction passes strict scrutiny or because there is some special rule for professional-client speech (or such speech to minors). But the "speech integral to criminal conduct" exception sheds no light on the situation, precisely because there is no criminal conduct to which the speech is integral.

As the Third Circuit pointed out in dealing with such a ban in King v. Governor,

Given that the Supreme Court had no difficulty characterizing legal counseling as "speech," we see no reason here to reach the counter‑intuitive conclusion that the verbal communications that occur during SOCE counseling are "conduct." Defendants' citation to Giboney v. Empire Storage & Ice Co. does not alter our conclusion.

767 F.3d 216, 225 (3d Cir. 2014); see Volokh, supra, 101 Cornell L. Rev. at 1043-49 (discussing the misapplication of the "speech integral to criminal conduct" exception in Pickup, and the criticism of that misapplication in King). See also Otto v. City of Boca Raton, 981 F.3d 854, 865 (11th Cir. 2020) (likewise rejecting the argument that regulations of sexual orientation change efforts were merely "incidental [regulations of speech] swept up in the regulation of professional conduct"; "the ordinances are direct, not incidental, regulations of speech" and "are not connected to any regulation of separately identifiable conduct").

Other courts have misapplied the speech integral to criminal conduct exception to "criminal harassment" cases, on the theory that even pure speech can be punishable as criminal harassment because it is integral to the crime of harassment itself. See Eugene Volokh, Overbroad Injunctions Against Speech (Especially in Libel and Harassment Cases, 45 Harv. J. L. & Pub. Pol. 147, 184-89 (2022) (noting such cases, and other cases that have criticized such misapplications). Yet "[t]here is no categorical 'harassment exception' to the First Amendment's free speech clause." Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 204 (3d Cir. 2001) (Alito, J.). And the combination of a criminal harassment statute and the "speech integral to criminal conduct" exception cannot create such an exception: Such a justification for the criminal harassment statute "is circular—the speech covered by the statute is integral to criminal conduct because the statute itself makes the conduct illegal. That is not the test for speech integral to criminal conduct." Matter of Welfare of A.J.B., 929 N.W.2d 840, 859 (Minn. 2019).

To be sure, lower courts sometimes do err in applying even settled First Amendment law. But the speech integral to criminal conduct exception is in particular need of careful and suitably narrow definition. This Court should reaffirm that speech can be criminalized as integral to criminal conduct only if it is closely linked to other conduct (besides the assertedly criminal speech itself), and to other criminal conduct (and not just civilly actionable conduct).

Conclusion

Speech integral to criminal conduct, such as solicitation of crime, can be criminalized, because the speech is closely linked to the conduct itself and can thus be treated similarly. But the speech-integral-to-criminal-conduct exception cannot justify punish speech more than the conduct to which it is integral.

Comments

[Dr. Ed 2]

I think there is an underlying issue of presuming that a "civil" action by the state is not "criminal" in nature.

In many (most?) cases, if you don't pay a civil fine, you go to jail.
It isn't like with a private plaintiff who has to come back and try to collect, nor can you escape via bankruptcy. So why aren't these considered criminal matters?

OK, perhaps at a level below misdemeanor, much as misdemeanor is viewed as a level below felony, but why the asinine presumption that this is not a criminal process.

And if I were to advocate sitting on railroad tracks (a misdemeanor) versus shooting the train operator (a felony) i'd still be in trouble. So why not for this?

[mse326]

My feeling has long been that if the government's interest is analagous to private individual (e.g. a contractor breached contract) then it should be civil. If, instead, the government's insterest is based on its position as sovereign (e.g. security, health and safety, etc.) then it should be criminal.

[Krayt]

"We don't want you in jail. We just want your money."

I'm sure there's a crime here somewhere.

[Dr. Ed 2]

But don't you have to show harm in a suit against a contractor who breached contract? And didn't the contractor have to sign the contract?

[mse326]

That's the point. If the governments interest is analagous to a private party they can bring a civil suit just as a private individual could. If their interest is based on their sovereignty then it should only be allowed to be criminal, not civil. That isn't what the law is, but that is at least what it should be.

I can't say I've done the historical research to know what it was like at the founding, but my guess is that the governement uses civil penalties far more liberally than would have been allowed. Basically just a way to not have abide by criminal constitutional requirements. I'm more or less agreeing with your point.

[Noscitur a sociis]

Prof. Volokh,

I tried to rephrase this a few times to sound less hostile, without much success. So I hope you’ll accept this as a genuine question.

It looks to me like Hansen has made the same substantive arguments you’re raising in her merits brief. In light of that, what is the additional value that you feel your brief brings to the case?

[Eugene Volokh]

That's always an excellent question. I think I'm going into this in more detail, based partly on my extensive research on the speech integral to criminal conduct doctrine. But I'm also influenced in part by the fact that my Sineneng-Smith brief seemed of interest to the Justices: Justice Breyer seemed to agree with it (and though he's no longer on the Court, it may be that some of the other Justices might likewise find it interesting), and Justice Alito disagreed with it. I therefore thought that a revised version, which goes into this particular question more deeply, and which responds to Justice Alito's specific questions, might be helpful.

[SKofNJ]

Even if what you are saying is so, in the real world, it is helpful to have someone of Professor Volokh's stature to endorse your arguments.

[The Turtle Dove]

Complete novice in this area, but my first question might whether the limitation you suggest is case-specific or general. Say a generally criminal act clearly isn’t criminal in a certain situation, say the person doing it is an infant, or a member of the class the law is designed to protect, or has some sort of immunity, or perhaps the act itself has a clear excuse or justification in that instance. Say the speech is criminalized based on the general case. Does 1A prevent the specific prosecution of the special case, or is it satisfied by the legitimacy as to the general case? I could see an argument for always proscribing the urging of X, even where X in a particular instance might not wreak the harms that it usually does.

Also, small shudder at “criminalizable.” And check the last sentence.

My $0.02, actual worth 1/20 c. Cheers.

Mr. D.

[Eugene Volokh]

Thanks for the correction as to the last sentence -- fixed.

As to your first question, I try to respond to that on p. 7; my view is that,

Solicitation of conduct can be treated as criminal, on the theory that it is integral to the underlying conduct, only when the underlying conduct is itself criminal—whether or not the particular solicited person is, under the peculiar circumstances of the case, legally culpable for the crime.

[mtkesq]

That distinction appears to get a little troublesome in certain cases. Suppose A recruits B&C to act out sexual acts with everyone knowing that one of the participants will be subbed in with a cgi of a child. The state of Hypothetical has determined that when the pornography involves cgi of a child it is not a crime. The underlying conduct here, distribution of child pornography, is not criminal because of the cgi. However, A (and possibly B&C) are doing this because they want others to engage in sex with children but never overtly say so. Is this a crime?

[Ken Arromdee]

How does this work? Whether something can be characterized as "underlying conduct is not criminal" or "underlying conduct is criminal but this person is not culpable" seems like a semantics question that solely depends on how you phrase things.

For instance, if you kill someone in self-defense, you could

1) describe it as "the underlying conduct is 'killing people' and it's only not criminal because of the peculiar circumstances of the case (self defense)".

2) describe it as "the underlying conduct is 'killing people in self-defense'", which is not criminal.

[Eugene Volokh]

Well, recall that the question is whether the conduct being solicited is civilly actionable or criminal. Thus,

(1) Soliciting someone to, say, sell unlicensed T-shirts bearing a celebrity's name or picture would be solicitation of merely civilly actionable right of publicity infringement -- it thus couldn't be made a crime.

(2) Soliciting someone to steal the celebrity's handbag would be solicitation of criminal theft -- it thus could be made a crime.

(3) What about soliciting your six-year-old child to go a bring you the bag from a neighboring table, where the celebrity had temporarily left it? True, the six-year-old likely won't be criminally culpable, whether because six-year-olds are viewed as per se not culpable, or because the six-year-old didn't know that you weren't authorized to have the bag (and thus lacked the mens rea for theft). Still, the act that you're trying to accomplish is generally something that the law has criminalized, even if your catspaw in the operation is off the hook for the act (because he lacks the mental capacity or mental state for criminal liability). It seems to me that solicitation of that act can be made criminal, as criminal law generally does (see, e.g., the Model Penal Code articulation of the rule).

The key line is between item (1) and (2); that doesn't seem hard to draw, and (3) seems to me to be naturally assimilated to (2).

[Dr. Ed 2]

" civilly actionable or criminal"

I was involved in the student government as an undergrad, and we were not happy with the university's parking regulations. So I proposed a "park anywhere" day -- a day when we would encourage students to literally park anywhere and we would reimburse them for any fines received.

Legal counsel brought to my attention that this would be illegal because while parking tickets were civil rather than criminal, they were civil offenses and not civil actions. Or something like that.

In other words, they are not torts -- or at least counsel claimed such.

Hence the problem I have with your arguments is the distinction I keep making between torts and offenses -- the latter being either criminal or civil, as the king decrees, but still violations of the king's law and not torts.

Let me approach this a different way -- in some states, speeding is still a criminal offense (i.e infraction) while in others it is a civil offense. So what you are arguing is that one can encourage others to speed in states where it is a civil offense but not in ones where it is a criminal infraction -- and that makes no sense.

Likewise, as I understand it, there are both civil and criminal violations of the IRS code. So you can encourage people to commit civil violations of the IRS code with impunity? (Somehow, I think that is a distinction that the IRS wouldn't make....)

NB: I'm not talking about good faith interpretations of the code -- that's what tax court's for -- but knowing violations which only carry a civil penalty.

[Heedless]

One thing that ties all of your examples together is that they all have a direct benefit conferred on the person soliciting the criminal act. Whether it is the prophet of the sales from counterfeit merchandise in 1, or possession of the celebrities handbag in two and three, the person soliciting the crime is also the person profiting from the crime.

Wouldn’t a trickier question be whether one would be liable for encouraging someone to commit a crime out of a sense of mischief or malice but receiving no direct gain from the crime. Fagin is clearly a crook, but should Lord Wotton be too?

[Eugene Volokh]

Solicitation needn't have a profit motive, or a motive of any other direct personal benefit. Soliciting someone to commit a crime just out of hostility to the target of the crime is still criminal solicitation.

[Dr. Ed 2]

OK, A encourages B (who is intoxicated) to go urinate on C.

Or if this would constitute an assault, to urinate in front of C -- and this being in NYC where public urination is now a civil offense.

Can A be charged? Remember that B has only committed a civil offense, not a criminal one.

And if you want to make this more interesting, presume that C is a TV reporter trying to do a live shot, and A knows that B can't with someone urinating in front of him....

[The Turtle Dove]

Vided. Missed that completely, thanks. Apologies for the late reply, away for a bit.

Interesting debate below. In the example of handbag asportation, below, there's a social interest in proscribing handbag theft, yes, but (not having the notes on hand) MPC solicitation is a specific intent crime and if they know the perpetrator/solicitee isn't culpable, perhaps the elements of the solicitation offense might not be met. Perhaps the perp is 6 mo. old, instead, staring dumbly in his pram. Factual impossibility on top of criminal impossibility. It seems one can't just criminalize the phrase "go steal the bag." There has to be some calculation of circumstances.

And where the specific acts contemplated or committed aren't a crime, perhaps (on the other end of the equation) 1A imposes a narrowing requirement on the statute (in a slightly larger set of cases, depending on the solicitor's knowledge), i.e., one has the freedom to say X unless X is solicitation for something that is in fact a criminal act.

Best of luck with the brief -- have fun storming the castle.

Mr. D.

[Jonathan Affleck]

SCOTUS should be careful in its decision not to mess up the law that is associated with induced or contributory infringement of a patent, a copyright, or a trademark. Infringement law is already complex enough.

[ThomasHuff]

I really liked the arguments in II.A of your Sineneng-Smith brief, which used US v. Williams, 553 U.S. 285 (2008) and other scholarship to distinguish *abstract* advocacy (i.e., protected speech) from *highly specific* criminal solicitation (unprotected speech). For example, Scalia's opinion in Williams offered the statement "I encourage you to obtain child pornography" an an example of protected advocacy, which it then distinguished from the much more specific (and thus unprotected) act of recommending "a particular piece of purported child pornography with the intent of initiating a transfer." I think the Fourth Circuit adopted a very similar "abstract advocacy vs specific advocacy" approach in United States v. Miselis, 972 F.3d 518, 536 (4th Cir. 2020), when it struck down portions of the Anti-Riot Act for proscribing forms of abstract advocacy.

I've noticed that you've left this argument out of your newest amicus. Is that just because you find that civil vs criminal distinction more relevant to a civil immigration case?

Just curious. Either way, I liked the draft!

[Eugene Volokh]

Thanks! I thought I'd focus this brief on the matters that came up during the Sineneng-Smith argument, since that seemed to be the part that most interested in the Justices.

[Drewski]

Not relevant to the actual case at hand, but I'm curious what your take would be on hybrid offenses and acts where degree determines whether they are criminal or civil. Can a driver be fined for reckless driving while someone who solicited the act is prosecuted criminally (since the driver could have been prosecuted)? If I solicit copyright infringement that, perhaps against my intentions, rises to a criminal level, could I be on the hook criminally? What if I solicit multiple actors whose aggregate efforts would be criminal but individually are not? Can the solicitation be charged separately from any conspiracy?

[arch1]

Final sentence: punish -> punishing

[ReaderY]

Here’s a very straightforward counterexample.

Being an enemy combatant is not criminally punishable, “it is no crime to be a soldier.” Yet treason, a crime, can be committed entirely through speech. That is, in this case, the constitution permits criminalizing speech aiding people engaged in conduct that is not itself criminally publishable.

I would point out that in general, American citizens have a duty of loyalty to this country that foreigners do not. Because of this difference, war and foreign relations contexts involve many situations where the United States can impose criminal penalties on citizens for violating duties that foreigners do not have.

I would argue this situation is one of them. The difference in duty of loyalty to this country permits the government to impose criminal penalities on Americans for aiding or enticing illegal aliens to enter or remain in the country even when the illegal alien status itself is civil rather than criminal in nature. Even when it consists of speech. The aliens don’t have a duty to America by virtue of their nationality, and this lack of duty justifies not handling them criminally. But Americans do have a duty, and its violation can be criminally punished.

[arch1]

ReaderY, what exactly did Eugene say to which you think either of your examples is a counterexample?

[ReaderY]

A person who helps recruit (solicit) non-US citizens for an enemy country’s armed forces in wartime can be convicted of the crime of treason. But enemy combatant status is not a crime, so the people solicited have commited no crime and cannot be criminally punished. Hence, soliciting for an activity that is not itself a crime can be criminally punished. It really is a counterexample to Professor Volokh’s thesis that the solicitation exception to the First Amendment applies only to solicitation for crimes. And the reason is as I said - the solicitor owes a duty of loyalty to this country (the betrayal of which is criminally punishable), while the people solicited do not.

[arch1]

“Hence, soliciting for an activity that is not itself a crime can be criminally punished. It really is a counterexample to Professor Volokh’s thesis that the solicitation exception to the First Amendment applies only to solicitation for crimes.”

Your scenario isn’t a counterexample to Eugene’s thesis.

I think Eugene would agree that the solicitation (speech-integral-to-criminal-conduct) exception wouldn’t apply in your scenario, but as he points out in his brief, this doesn’t mean that such solicitation can’t be criminally punished. Speech that doesn’t fall under the integral-to-criminal-conduct exception can still be punished if doing so passes muster under strict scrutiny, or if some special rule or other exception applies.

[ReaderY]

OK. Perhaps you could frame my argument as saying that rather than representing an exception to Professor Volokh thesis about the scope of the crime facilitation speech exception, it represents a separate exception to the First Amendment entirely, a war/foreign policy/immigration exception, and hence the crime facilitation exception and its scope do not apply at all. But if that’s so, then Professor Volokh’s thesis and discussion of it is irrelevant to the case he’a trying to use it to make an argument in. Or at least there’s a separate basis for upholding the law Professor Volokh’s thesis does not address.

[arch1]

Thanks ReaderY. IANAL so maybe this is an ignorant question, but is there a reason your scenario couldn’t be in the “passes muster under strict scrutiny” category?

As to the relevance of Eugene’s brief, I don’t see the issue. It clarifies the boundaries of the SITCC exception. His central point asserts the inapplicability of SITCC to the present case – but this assertion of SITCC’s irrelevance is itself quite relevant, if any SC justice thinks otherwise. And based on Eugene’s earlier comment, his other, finer points are at least arguably relevant because they respond to questions the SC had on an earlier, similar case.

[ReaderY]

I think one of my two arguments, the analogy to treason, is potentially distinct. It’s that when the solicitor and solicitee have different duties, you can impose different penalties reflecting that difference. Americans have duties to the country that foreigners do not, so recruiting foreignors into an enemy army is pubishable as treason (among other crimes) even though enemy soldiers cannot be pubished criminally just for being enemy soldiers under the laws of war.

It’s true treason involves a compelling interest. But if the argument is fully accepted, then there might be other situations when differences in duties might justofy differences in penalty. Corporate insiders vs. non-insiders (fiduciary duty); government officials vs. non-officials; employees vs. non-employees, etc. In cases where there is an especially strong duty, government could potentially criminalize violating that duty, while not criminalizing the conduct of people who don’t have that duty. And this could lead to situations where a solicitor (with the duty) is potentially criminally punishable but the solicitee (without the duty) isn’t.

[arch1]

Thanks. It seems that solicitation of a foreigner to treason might also fall under the more general category of soliciting to criminal behavior a per se non-culpable person (as with Eugene’s scenario involving a 6-yr-old in his earlier comment on this post).

[SKofNJ]

ReaderY, I respectfully suggest that your argument does not work. The treason clause is specific. I don't think it can reasonably be taken as having created a general, enforceable duty of loyalty this country. If you are correct, shouldn't loyalty oaths be constitutional?

[Stephen Lathrop]

Loyalty oaths are not constitutional? How come federal office holders all have to swear allegiance to the Constitution?

[ReaderY]

For that matter, an Elector – that is a voter – can be required to take a loyalty oath.

https://en.m.wikipedia.org/wiki/Voter%27s_oath_or_affirmation

[SKofNJ]

Because the federal constitution itself requires that they do. I apologize for not saying that I meant the sort of loyalty oaths once required of school teachers.

[Seamus]

Comment deleted.

[ReaderY]

The Treason clause didn’t create a duty of loyalty not to solicit illegal immigrants. Congress created that duty by statute. But I’m suggesting there’s an analogous situation where the solicitor has a duty to this country that the solicitee does not, and in these situations, analogous to treason, the solicitor can be criminally punished even when the person doing the activity solicited can’t be.

And yes, Congress can constitutionally give citizens duties that non-citizens don’t have, particularly in matters of war, peace, and foreign affairs.

[ReaderY]

Would point out that the duty of loyalty isn’t the only basis for analogy, there are other possible bases for arguing for a “foreign affairs” exception to Professor Volokh’s hypothesized rule. Foreign policy in general creates special compelling interests. Just as the US has special foreign policy and international relations reasons not to criminalize being an enemy combatant (treaty and customery rules of war), it may have special foreign policy and international relations reasons not to treat another country’s citizens as criminals for ordinary immigration violations.

That is, while the special deference courts give the US government in foreign policy and immigration matters has more recently been associated with courts upholding being especially hard on illegal immigrants, it can equally well justify treating them with special lenience.

[Dr. Ed 2]

OK, SKofNY, how about the aiding terrorism statute? Or sedition?

While I'd argue that recruiting for an enemy constitutes "giving aid" to the enemy, there are other statutes.

[dwshelf]

This is the first time I've ever experienced reading a legal brief as experiencing artistic beauty.

Bravo.

[Stephen Lathrop]

Can officeholders' oaths of allegiance to the Constitution be enforced criminally?

I have one specific instance in mind. Could Congress pass a law to make it a felony offense akin to treason—amounting also to breach of the oath of constitutional allegiance—for a sworn office holder to deny the validity of a legitimately-certified election?

I take as a premise that there would be no 1A problem, and no Speech and Debate Clause problem, if Congress did that. I posit that a certified election result is a sovereign decree founded on the constitutive power held only by the sovereign, and thus stands on a par with the Constitution itself.

Note that making that duty of allegiance apply only to sworn officeholders would preclude any such criminal charge brought against ordinary citizens. As members of the joint sovereignty of America's People, those must remain free to speak as they please to constitute, direct, and constrain government. The sworn officeholders, however, embody the government to be constrained.

[Dr. Ed 2]

I disagree with the 1A issue and you are also violating both the 13th & 14th Amendments -- that you are, essentially, recreating the Alien & Sedition Act, and that worked just so wonderfully the first time around.

I'd also suggest that the left needs to be damn careful in this because -- well Florida, 2000. Etc...

[ReaderY]

I would think such a ststute could easily be overbroad. How could a an election be disputed?

Also, I think the situation is potentially analogous to accepting a court decision while claiming the court got it wrong. As long as one follows the court order, criticizing the court and its decision is generally regarded as protected. And disobedience generally requires some sort of overt act. I think it would be analagous here. If you refuse to follow the official’s decision or do something to hinder the official, it would be different.

[Stephen Lathrop]

ReaderY, how could it possibly be overbroad to rule out dispute of a certified election by sworn officeholders? Their oaths commit them to support the election. Constitutionally, they have no latitude on that.

[Davy C]

What if, the day after the election is certified, it becomes apparent that the results were in fact fraudulent? Are the office holders then required to deny reality? What if there's debate over whether it was "legitimately" certified?

Also, no, individual election results are not on the same level as the Constitution itself.

[Stephen Lathrop]

Davy C, what distinguishes what government officials must obey, and what they are free to ignore, is not the Constitution. It is this: Government officials must obey the Constitution because it is a decree from a particular source—the nation's sovereign People. They wield jointly the ultimate government power. Everything that sovereign decrees must be obeyed alike by government. Government cannot constrain the People, not even a little. The People constrain government.

A certified election result is a sovereign decree, constituting government. No one in government is empowered to defy it; no one in government can set it aside; no one in government can ignore it. Not, anyway, without turning American constitutionalism upside down. Is that what you advocate?

[Stephen Lathrop]

What if there’s debate over whether it was “legitimately” certified?

Good question. There may be such debate. To the extent that government performs the ministerial task to conduct elections, it needs to entertain such debate, but only with an eye to getting to an accurate certification of the result determined by the votes. Upon certification of the vote count, the government's task is completed, and both the time for government debate, and the justification for government debate, have ended.

Citizens who are not sworn to uphold the Constitution are a different story. They are in fact members of the joint sovereignty, not members of a government the sovereign controls. Such citizens presumably have a perpetual interest in everything about elections, which are one means citizens use to constitute governments.

The constitutive power is the power which, more than any other, defines sovereignty. So citizens who are not members of government must remain free to discuss everything about every election, for as long as they please. For those citizens, the government action to certify the election is of no consequence. They should remain free to say whatever they want about any election, for as long as they please.

[Mike Hansberry]

I believe ReaderY is onto something.

Congress might determine that the evil done by those soliciting for defiance of immigration rules is greater than the harm done by a single person’s violation, thus a criminal charge is warranted.

Think Fallacy of Composition. While a single person’s violation of immigration law is of little consequence, mass violation of immigration laws cannot be so easily dismissed.

A single person violating immigration law is responsible for his own action, but those soliciting share a part of the responsibility for very many violations.

Food for thought. If EV’s view wins out, wouldn’t Congress be forced to up the ante for the individual violation in order to crack down on those soliciting? If violating immigration law were made a low-level criminal offense, would those soliciting for violating immigration law also be restricted to a low-level criminal offense?

Wise men say that an unjust law is no law at all. But if we extend that righteous defiance to all laws, then we have got a real problem.

[Mike Hansberry]

“And this analysis is correct. Broadening the integral-to-criminal-conduct exception to cover solicitation of merely harmful conduct would unmoor the exception from its rationale—speech would be criminalized not just as part of the criminalization of the conduct, but even when the conduct is noncriminal. ”

Where is the distinction between merely harmful conduct and illegal conduct? Surely not all conduct harmful to society has been made illegal. That which has been made illegal can have criminal or civil penalties.

Broadening the integral-to-criminal-conduct exception to cover solicitation of illegal conduct would not unmoor the exception from its rationale.

Recognizing an integral-to-illegal-conduct exception would not be of a different kind than the integral-to-criminal-conduct exception.

[jdgalt1]

I love your argument that psychological and legal counseling are nothing but speech. Take this to its logical conclusion and the crime of practicing law or psychology without a license becomes untenable, and licensure goes away. I would love to see it.