Respondent acknowledges the context of criminal law, the terms encouraged and reduced can have solely asked that solicit unlawful activity. Thats the meaning they have in the context of this criminal law. There is no reason to reach out and give them a vastly more interpretation simply to strike the statute down. Unlawful activity have existed since before the founding, and are perfectly constitutional. Interpreting this lot to be unconstitutionally overbroad, would deviate from that tradition and directly contradict the canon of constitutional avoidance. Historical understanding and practice confirm that congress did not use these familiar predecessors to the statute have been on the books since the late 19th century and this provision has existed in its current form for decades. Have identified no actual instances where the statute has been applied to first amended activity or country documented instances of chilling speech. Happenstance, and it because the statute is not aimed at speech and it certainly does not encompass substantial amounts of it. To the extent that it could be applied to protected speech that could be handled through the normal mechanism of as applied First Amendment challenges in those cases. This is not such a case because respondents own activity of fraudulently inducing aliens to pay her for a false path to a lawful permanent residence is not protected by the First Amendment and she is not entitled to the last resort invalidation that the ninth circuit on its own initiative reached out to impose. That is particularly so because she was convicted of an offense that required the jury to find, beyond reasonable doubt, that she acted for the purposes of financial gain you would acknowledge that there are situations in which this would the unconstitutional as applied . Somesuppose there might be circumstances where this could be unconstitutional as applied. I dont know that anyone has identified any such whoserandmother granddaughter is in the United States illegally tells a granddaughter, i hope you will stay because i will miss you, things will not get better if you go back, so i encourage you to stay. That would be illegal under the statute, right . It would not be illegal under the statute. Here is why. First of all, the issue of when verbal acts or other acts cross the line into criminal complicity or solicitation is not an issue unique to the statute. It is one criminal law has dealt with for centuries and something that abstract and attenuated is not going to be criminal complicity. This statute, we think, covers a more narrow subset of criminal complicity in solicitation. It requires substantial participation in some unlawful trying to gin up some unlawful venture with the goal that that unlawful venture actually occur. That was a decision circuit judge cited, i think it was a District Court in he saidsetts in which that was an instance where this statute was applied to encroach on First Amendment rights. Your honor, i dont think that particular prosecution was first mimic challenge itself was in violation of the First Amendment. I think what worried the judge was the colloquy that occurred during that case in which the discussion was had about a hypothetical case in which, for example, the statute could in theory be applied to the actions of the lawyer. Again, the actions of the lawyer and when those cross the line into criminal complicity or solicitation is also not a problem that is unique to the statute, but is an issue criminal law has dealt with for quite a long time. What about a charity . A Charity Provides food to someone who is in the country unlawfully. Your honor, i think that would be conduct rather than speech so i do not think it would factor into the analysis. Is it covered under the statute . If a charity were to give out food to people that the charity new recklessly disregarded work in the country unlawfully on the terms they give food to other needy people, then no. Furthermore, in interpreting the statute its important to remember is part of the if its not on the same terms designed to provide people vide food for people exception in the statute so to the extent that they charity were violating plain terms of the statute that amounted to giving effectively money to people or something equivalent of money to people, with the purpose that those people reside in the United States unlawfully, that might violate the statute. I think another important limiting feature is to recall that it is part of the immigration and nationality act. That has to be interpreted as a whole and not to be at war with itself. The immigration and nationality willontemplates that there be circumstances in which public and private benefits may be given to people who are in the United States unlawfully. The statute has never been used to prosecutege conduct of the type you are hypothesizing. It has been used according to the Amnesty International brief. Dhs admitted there was a watchlist at the border, in which these charitable organizations, people who were giving legal advice at the border, all sorts of individuals, were being watched because they potentially violated this encouragement provision. So youre saying there has been no absolute, no prosecution acept hendricksons which was woman who hired a housekeeper who told her the absolute truth, if you go back, if you returned to your country, you may not get back. Absolutely true statement and she was prosecuted for that statement as encouragement and inducement. For the housekeeper to stay here. But if you say this has no chilling effect, is that accurate . Let me take those two examples in turn, your honor. The Amnesty International letter, if you look at it, the conduct in that case was focused on investigating violence against Border Patrol agents and suspicion that people were being counseled to lie to immigration officials. I dont think either of those things is protected by the First Amendment. As to the henderson case, i think there are more facts and context in that case. That was the prosecution and i will acknowledge that case is very close to the line if this lawyer had sincerely she just got it wrong, that there was a lawful program, the these individuals could have access to keep them here, would you have been able to prosecute her . No, your honor. We could not have. May i just interpret interrupt for one second . , forid prosecute for fraud fraudulently telling clients they were eligible for this . The defendant was not a lawyer. Im talking about this case. Case, she particular was not acting as a lawyer although she is a lawyer. We prosecuted her for lying to her clients and the jury found that she knew that she was lying to her clients. She lied to her clients that by applying for a particular Government Program she was putting them on a path to lawful permanent residence. She charged each of her clients about 6,000 for that. She kept sending them letters. Tell me what the difference as opposed to it conviction under this statute . Under the mail fraud statute . Under the mail fraud statute versus this one. Is there a difference in penalties . The mail fraud statute i believe has a statutory range of zero to 20 years of imprisonment and under this statute it was zero to 10 i believe because of financial gain element. I would emphasize that the fact that this particular conduct maybe covered by two provisions is happenstance. You could have easily given the client the same advice verbally and it would not be covered by mail fraud. Lets go back to my original question. Lets say this program was a path and they were still here unlawfully, can you read the words of the statute to me that tell me she would not be prosecuted for encouraging or inducing them to stay while they went through the lawful path . We do not think it is encouragement or inducement knowing or wrath knowing or reckless disregard of the aliens unlawful status to advise them of the existence of or help them apply to a lawful Government Program. This issue came up in the United States against williams in which the argument was put forth to the court that a statute that criminalized presenting child pornography might in theory be applied to handing child pornography over to the police. The court was skeptical on such selfdefeating interpretation of the statute. I think that reflects a broader principle that a statue like this should not lightly be interpreted to apply to conduct that simply participates in a Government Program. That is particularly true because the statute is part of the immigration and nationality act. Immigration and nationality act use at that point, which is a good point. I want to be sure you get an answer to this question. You have read the briefs and they have a long list of which this is just a few horrible. The professors brief gets rid of most of these in a simple way. He lists big conditions under which the court traditionally has said a solicitation of a crime statute is constitutional. But the first condition, and most important, is what youre soliciting is a crime. It is easy to read this when they use violation of criminal law. I think maybe all of them, i dont know. Sometimes anat the unitednters states is committing a crime. I cant think of any instance in which residing in the United States is a crime. But if you could think of one, and you might not like this, but i could see saying, well this is restricted to the prosecution of that one. But if there is zero i dont see how we narrow it to solicitation. It is a crime in the United States following removal. For example, someone who is residing in the United States after are you willing to accept that are not . We take the professors brief and we say that the statute under constitutional pressure, is limited to instances where all the qualifications you get. Limited one is and is to the solicitation of a crime. So it is only in the instance that there is a repeat and the person has to know it and the person is doing it. In a repeat of several times to the United States and what you just said. Entering several times and we thethat into it and government accepts that. We would prefer that to the alternative of the ninth circuits novel overbreadth invalidation but i dont think that remedy is necessary. Et me make two points the parade of horribles. I think what gender the horribles is the ninth circuits interpretation. If you look at the briefs, the activities theyre complaining about being chilled are ones in which they publicly and currently continue to engage. As a matter First Amendment law on the other hand i dont think theres any reason to restrict this to criminal activity. If you look at the article the professor cites in his brief, he makes quite clear on the first page of his article that this Court Description of the unprotected category of statute im sorry, the unprotected speech category of speech that is intended to induce and commence illegal activity applies to activity that is either civilly or criminally illegal. Case could not even find a where of course that makes a huge difference. We cant find a case where is held ton of acts be lawful rather than unconstitutional. Where x is not a crime. This court has used the example of a business that has a white applicants only sign, prohibition a against in our briefs, the Pittsburgh Press case, both of which if you take that approach i see the approach. Then follow the questions that have become relevant. It is the landlady who says to the person you always have a place here, knowing that that person is illegally in the United States. Or we can list universities, church groups, you name it. Sanctuary cities, where they are trying perhaps, whatever they are trying to do. Turned overtough to to the prosecutors and they can use it as threats. All of these things that are in the briefs as horribles. Your interpretation would introduce them in reality because you had to make a lot of distinctions. I think there is a reason we have not seen that in the many years thatabout 150 a statute like this has been on the books. The reason they can document instances of it and the reason they are all easy groups engaged daily in the very activities and claim are chilled. What do you think encouraged means . Speechour position that alone can never constitute a violation of the statute come of it there always have to be conduct in addition to the speech . No your honor. We think it has meaning drawn from traditional criminal complacency complicity law. Specifically what did it mean in the statute. Its not entirely clear whether encouraged his the one that covers solicitation or the one that covers complicity. I would prefer to take the two. What does it mean . We think it means you have to substantially participate in the activity as something that defendant wishes to bring about succeed. Thats eating and abetting. Its different from aiding and abetting in three distinct ways. Brief, the of our specific words that a statute uses can have some effect on how its interpreted. A particular subset of conduct it covers. I think here congress is focused on the words encouraged and induced meaning three things. It has to be something the defendant wants to succeed. I dont think you can be indifferent about encouraging or inducing. Second, it has to be something the alien is aware of. Under normal aiding and abetting law, you can aid and abet without the principal knowing about it. If the murderer is about to go shoot somebody and i unload the victims gun before the murderer gets there in the murderer never knows i did it im still in ater and a better. Amountk it requires some of participation. Consistent about this that you cant really encourage or induce someone in a diminished way. It has to make the activity more likely to occur or succeed. I if the defendant just says encourage you that might be it that might not be enough. In a forceful voice, that would be a violation . I dont think that kind of abstract attenuation is going to satisfy this particular statute. Why weitional reason think some substantial participation is required, this is coming in because 4 of the five costs statute. If you look at one through three which cover the other substantive conduct all of them require some sort of substantial what did you mean by substantial participation . Said, what Justice Alito if somebody says i really think you should stay here, here are 10 reasons why and repeats that in repeats and it is very definitely encouraging and inducing a person to stay in this country, does that count as substantial participation . Or is there some nonspeech conduct that has to be added to the mix . Your honor i think there are occasions in criminal law where words can constitute aiding and abetting. I think the same is true under this statute. If the court were to have a problem with that, he could be addressed as applied challenges the chief justice mentioned or we would prefer to refer to the ninth circuit remedy, something where it says it has to be accompanied by some conduct. A i just want to give you shot before your time is up. Take your point such as it is. Law, whenthe criminal we secondary liability to avoid the First Amendment, dont allow speech greater than the underlying conduct itself. So what do we do about the fact that most applications of the underlying conduct would be civilly punished and here you wish to criminally punish speech . And number two, normally we require the ater and abettor or secondary liable person to have. Purpose here the government as i understand it argue there is no mens we resisted willfully which would require some specific ing specifically in mind we do think this requires the same mens rea the court described in rosemont. This would extend to reckless dish reckless disregard to circumstances would satisfy that if recklessness is good speech so in my this gets beyond specific and conduct. I can be reckless in my reckless in my speech in encouraging somebody and and wind up a federal criminal even though the underlying violation is merely civil. Is is that the gist of the governments position here . Mr. Feigin no, your honor. The the reckless disregard has to be in relation to the aliens status Justice Gorsuch no, im recklessly mr. Feigin about the law. Justice gorsuch im recklessly indifferent to my granddaughters status and im recklessly encouraging, exhorting her, in whatever level of specificity you require, but i have no intention of of violating the the immigration laws. And the underlying conduct that for which she can be punished is merely civil. Mr. Feigin so Justice Gorsuch then what . Mr. Feigin your honor, two two parts of that. First of all, reckless we dont think theres such a thing as reckless encouragement or inducement. As i was explaining in my colloquy with Justice Alito, we think the words encouragement and inducement in themselves are carry a meaning that you have to want the unlawful venture to occur or to succeed. As to the Justice Gorsuch i guess what im im wondering here, mr. Feigin, at the end of it all and just to cut to the chase is, does the government think that that the common law principles of secondary liability that normally try and prevent the dragnet effect of secondary liability from extending too far inform the First Amendment analysis here, or would you just have us blow past all of those guideposts . Mr. Feigin well, your honor, we do think the statute should be interpreted in conformity with the normal criminal law principles of accomplice liability and solicitation that the court has long recognized apply to these as a matter Justice Kagan but the problem is and this is Justice Breyer do you agree with professor volokh or do you not . Mr. Feigin your honor, i do not agree, or we do not agree, with professor volokhs suggestion in his brief that this needs to be limited to criminal activity. Again, if you if you look at the article that he cites in his brief, it has some of the same