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 criminal law terms to enact a novel and broadband on speech. Predecessors to the statute have been on the books since the late 19th century, and this provision has existed and it substantially existed form for decades. Yet they have identified no actual instances in which the statute has been applied to protect the first moment activity or any concrete documented insistence of speech. The absence of such evidence is not just happenstance, and it doesnt just reflect longstanding executive selfrestraint. Its because the statute isnt aimed at speech and it certainly does not encompass it. To the extent that it could be applied to protected speech, that can be handled to the normal mechanism as applied first to mimic challenges in that case. This isnt such a case because respondents own activity of fraudulently inducing aliens to pay for lawful evidence is not protected by the First Amendment. And she is entitled to the last resort remedy of validation that the ninth circuit on its own initiative reached out to impose. Cement thats ridiculous l because she is convicted of a offense that cries a jury to find without a reasonable doubt that she acted for the purpose of financial gain. You would acknowledge though that this would be unconstitutional as applied . I suppose there might be some circumstances this could be unconstitutional as applied. I dont know that anyone has had that application where the statute would. [inaudible] a grandmother whose 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 your honor. 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. Its one criminal laws dealt with for centuries. Something that abstract is not going to be criminal complicity. In particular this statute we think covers a more narrow subset of criminal complicity in solicitation. It really requires substantial participation in some unlawful venture or trying to have an unlawful venture with the goal that that unlawful venture will actually occur. It was a decision and took the judge who cited, i think it was a Districts Court in massachusetts in which he said that was an instance where this statute was applied. It was applied to encroach on the First Amendment rights. So your honor, i dont think that prosecution was against the First Amendment itself. I think what worried the judge was the colloquy that happened during that case in which a discussion was had about a hypothetical case in which for example the statute could in theory be applied to the actions of the lawyer. Now 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 it is an issue that criminal laws dealt with for quite a long time. What about a charity . So a Charity Provides food to someone who is in the country unlawfully. So first of all your honor, that would be conduct rather than speech so it would not factor into the breath analysis. Is it covered under the statute . So if a charity were to give out food to people that the charity newer rack loosely disregarded were in the country unlawfully on the same terms they give that food to other needy people, then know your honor. Furthermore i think interpreting the statute its important to remember its part of the immigration. What if it is not on the same terms and is designed to provide food for people who cant get it elsewhere and they know the people taking advantage that are here unlawfully. Say your honor, theres no explicit exception of the statute for activity that are denominated as charitable. To the extent that a charity were doing something that violated that claim turns the statute that ran to into giving effectively giving money to people or to the equivalent of money for the purpose of this people would reside in the United States unlawfully. That might violate the statute. I stink another limiting feature is to recall that it is part of the immigration and nationality act. That statute has to be interpreted as a whole, and not itself. In 16 to 21 the nationality act expressly contemplated theres good to be circumstances in which public and private benefits may be given to people in the United States unlawfully. The statute has never been used to my knowledge and responded her mickey has not come up with an instance where its been used to process. It has been used according to the Amnesty International brief. Dhs admitted there was a watch list at the border in which these charitable organizations, people who were giving legal advice of the border, all sorts of individuals were being watched because they could potentially violated this in encouragement envision this inducement provision. So you are saying theres been no absolutes theres been no process fusion except hendren son, which was a woman who hired a housekeeper who told her the absolute truth. If you go back if you returned your country country you may not get back. Absolutely true statement and she was prosecuted for that true statement. It was an encouragement and inducement. For the housekeeper to stay here. But if you say this has note chilling effects, is that accurate . Your honor let me take those two examples in turn. First of all the 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 lights immigration officials. I dont think either of those things is protected by the First Amendment. As for the henderson case, i think there were more facts and context in that case. That was the prosecution, and i will acknowledge that cases very close to the line of what we think the statute. Could i ask one question, if this lawyer had sincerely believed is in fact it was true or close to the truth if she just got it wrong . That there was a lawful program that these individuals could have access to keep them here. Would you have been able to prosecute her . No your honor we could not have. I think that goes back to saying. Just let me interrupt you for one Second Period you did prosecute her for pride. For fraudulently telling her clients they were eligible for this correct . To be clear the defendant is not a lawyer. Im not one but that im talking about this case. We prosecuted zero im sorry, this particular case, yes, she was not acting as a lawyer even though she is a lawyer. We prosecuted her for lying to her clients and the jury found that she knew she was lying to her clients. She lied to her client that by applying for a particular government program, she was putting them on a path to lawful residents. She charged each of her clients about 6000 for that. She kept sending them letters to tell them. Could you tell me what the deference and trend differences in penalty for fraud convictions as opposed to conviction under the statute . You mean under the mail fraud statute. Under the mail fraud statute versus this one. Is there a difference of the penalties . The mail fraud statute i believe has a statutory range of zero to 20 years of imprisonment. Under this statute it was zero to ten, i believe, because the financial gain element. I would emphasize that this particular conduct may be covered by two different provisions. It is first of all happenstance, she could have easily given the client the same advice verbally, then it would not be covered by mail fraud. Lets go back to my original question. Lets say this program was up 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 lawful path . Your honor, we dont think it is encouragement or inducement knowing or restless disregard of the aliens unlawful status. To either advise them of the existence of or help someone to apply for a lawful government program. Let me explain why. First about an issue like this came up in the United States against williams in which the argument was put forth to the court that a statute that criminalized presenting pornography might in theory be ending china for naga field to the place. The court was skeptical of such a novel and quote selfdefeating interpretation of the statute. Think that reflects a broader principle that a statute like this should not lightly be interpreted to apply to conduct the simply participates in a government program. That is particularly true in that statute is part of the immigration and nationality act. You said that point which is a good point. I want to be sure i get an answer to this question though. You have read the briefs, obviously, they have a long list of of which this is just a few. Youve heard this morning. But professors brief gets most of these in a simple way. He lists the conditions under which the court traditionally has said the solicitation of a crime statute is constitutional. But the first condition, and most important, is what you are soliciting is a crime. And its easy to read this when they use more its violation of criminal law. Okay. And that would be most of them. I think all them i dont know. But, i know that sometimes, an alien who enters the United States is committing a crime. But 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 what was restricted to the prosecution of that one. But if there is zero, i dont see how we narrow it to solicitation. You file that customer. Your honor it is crime in the United States following removal for example so someone who is residing in the United States after previously been removed is not entitled to be here would be violating. Okay so what you think of that . Are you willing to accept that or not . What we do is we take the professors brief, and we say that the statute under constitutional pressure, is limited to instances where all the qualifications youve given and there are several there. There the main one is it is limited to 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 and repeat several times or twice to the United States and then what you just said. Entering several times you put that into it, and does the government except that customer. That would be an alternative in my mind that that would apply a need forget the statute. Your honor, we prefer that to the alternative of the ninth circuits novel validation. But i dont think that remedy is necessary. Im in a make two points. One about your parade portables and the one about First Amendment law. Whats actually is the ninth circuits novel interpretation of the statute. No one has interpreted it that way before. If you look at the brief the activities they are complaining about are one of which there openly, publicly, starkly, and currently continue to engage. As a matter First Amendment law, the other hand i dont think there is any reason to restrict sadistic criminal activity. If you look at the underlying that he cites under the brief, he makes quite clear, think is on the first page of his article, that this Court Description of the unprotected category of statutes im sorry the unprotected speech of speech that is intended to induce and commence illegal activity, which is how williams describes it, applies to activity thats either civilly or criminally. Dont say that. We couldnt even find a case. We couldnt find a case where course that make the huge difference, but we cant find a case for solicitation of x is held to be lawful rather than unconstitutional. Were x is not a crime. Let me give you a few examples. The court is use the example of a business who is out in front of it in a white applicant sign. Which is facilitating her soliciting civil prohibition against racial did discrimination in hiring. Theres also others that are cited in the Pittsburgh Press case both uphold. If you say that approach, i see that approach parade then all the questions asked have become relevant. And indeed, it is the land lady who says to the person you always have a place here. Knowing that that person is illegally in the United States. Or you could list universities, church groups, you name it, sanctuary cities, where they are trying perhaps whatever they are trying to do. But it wouldnt be tough to turn it over to the prosecutors and they can use it as threats. You turn it on all of these things that are in the briefs is horrible. Okay your interpretation would introduce them in reality because youve had to made a lot of distinctions. If i write all these distinctions into an opinion i am certainly have left out something. Your honor i think theres a reason we havent seen that in the many decades by the hundred 50 years in a statute like this is been on the books. A reason why they cant document the insistence of it. And a reason why their advocacy groups engage daily in the very activities they claim are chill. Where exactly do you think encourage means . Is it your position that speech alone can never constitute a violation of the statute, that there always has to be conduct in addition to speech customer. No your honor, and has a meaning thats drawn from turn additional criminal complicity law. Its a very common word. What does that mean, specifically what does that mean in a statute. In this statute is not entirely clear whether encourage is the one that covers solicitation or if its the one that covers complicity. I would actually, if i could prefer to take the two. Take them together fine paid what assuming . We think it means you have to substantially participate in the activity as something that the defendant wishes to bring about or to succeed. Thats aiding and abetting. Its different from aiding and abetting and i think three distinct ways. This is said in our brief its on page 457 the specific words that a criminal complicity statute uses can have some effect on how its interpreted. In the particular subset it covers. I think here congresses focus on the wards encouraged and induced mean three things. First about has to be that something the defendant actually wants to bring about or wants to succeed. I dont think you could be indifferent about encouraging or inducing. Second, it has to be something that the alien is aware of. Under normally aiding and abetting law you can aid and abet if you use those words you can aid and abet without the principal knowing about it if the murderer is about to shoot somebody and i unload the victims gun before the murderer gets their name doesnt know i did it. I am still in nadir and abettor. And the third thing, we think it requires some participation. For the reason that is you cant really encourage we been consistent about this in the proceedings below two. That you cant really encourage or induce someone in a diminished way. Has to be something that really does make the activity more likely to succeed or likely to occur. Sifted defendant just says well i encourage you to stay here, that might not be enough . But if the defendant says it ten times in a forceful voice, thou be a violation . I do think that more abstract asportation is really going to satisfy this particular statute. One additional reason why we think some substantial participation is required, is because its coming in clause four of a five clause statute. If you look at clauses one through three which is the other types of substantive conduct here. All of them require some substantial participation. What you mean by substantial participation customer guide and will he take that from your brief i did not take that from where thats coming from. And again what justice said is you really should stay here, here are the ten reasons why, and repeats that and repeats that. And its 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 . Well, your honor, i think there are occasions in criminal law where words can constitute aiding and abetting. I think that is the same is true, under the statute. If the court were to have a problem with that, it could either be addressed as challenges the chief justices mentioned or, we would prefer to the ninth circuit remedy where it says it has to be an interpretation says it has to be accompanied by some conduct. See mick mr. Fagan, i just want to give you a shout before your time is up. I take your point there, such as it is. Two things, normally the criminal law when we in secondary liability build teach avoid avoid this First Amendment, we as justice suggested dont allow parchment first speech greater than the underlying conduct itself. That seems to be of basic First Amendment value. So why do we do about the fact that most applications, maybe not all, but most here of the underlying conduct will be civilly punished. And here you wish to criminally spanish the speech. Number two we normally require the aider or better secondary liable person to have a purpose shared with the defendant. The same purpose. And here the government, as i understand argue there is no mens rea required to prove this violation or very minimal one. Your honor below we said menswear willfully would require some purpose having specifically in mind to violate the laws. We do think this requires the same mens rea that the court describe in rosemont where they said participation all this would extend to reckless disregard, would satisfy the normal. Thats what im getting at if recklessness is good enough, i could be in speech if it gets beyond the specific and conduct, specifically how the exploitation has to be that i