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U.S. Supreme Grapples with Whether Law Applies to Abstract Advocacy or Criminal Solicitation?

Can the government constitutionally criminalize the advocacy of violating immigration? That question forms the centerpiece of an interesting case, U.S. v. Sineneng-Smith, recently argued before the U.S. Supreme Court.

The case concerns the prosecution of Evelyn Sineneng-Smith, who had a business devoted to helping noncitizens obtain lawful permanent resident status. However, Sineneng-Smith apparently kept charging noncitizens fees for filing forms when she knew they could not obtain such status. The government prosecuted her for mail fraud and under the advocacy law.

The federal advocacy law in question, 8 U.S.C. § 1324(a)(1)(A)(iv), criminalizes “encourage[ing] or induc[ing] 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.”

Another section ostensibly narrows the law to those who engage in such advocacy for “the purpose of commercial advantage or personal financial gain.”

At oral argument, the government argued that “[p]rohibitions on facilitating or soliciting unlawful activity have existed since before the founding and are perfectly constitutional.”

However, the face of the law is quite broad and seems to apply to more than solicitation. Free-speech advocates warn that this statute on its face criminalizes even abstract advocacy.  For example, in its amicus brief, the Rutherford Institute et al write that the law is a “template for laws intended to silence a unique and effective form of protest speech: encouragement of civil disobedience.”

In order to uphold the law, the Supreme Court seemingly will have to apply a significant narrowing construction of the law. As written, the law seems to apply to a broad range of speech that would fall within the ambit of protected advocacy rather than solicitation of criminal conduct.

David L. Hudson Jr. is a First Amendment Fellow at the Freedom Forum Institute, and a law professor at Belmont University who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment titled, “Freedom of Speech: Understanding the First Amendment” (Now You Know Media, 2018). He also is the author of many First Amendment books, including “The First Amendment: Freedom of Speech” (Thomson Reuters, 2012) and “Freedom of Speech: Documents Decoded” (ABC-CLIO, 2017).

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