Case o' The Week: First on the First in the Ninth - Sineneng-Smith and First Amendment Overbreadth

“Anyone not paranoid in this world must be crazy. . . . 

  Speaking of paranoia, it's true that I do not know exactly who my enemies are. But that of course is exactly why I'm paranoid.” 

  ― Edward Abbey, Postcards from Ed: Dispatches and Salvos from an American Iconoclast

 

The Honorable Judge Wallace Tashima

“[W]e cannot take the government’s word for how it will enforce a broadly written statute . . . any would-be speaker who has thought twice about expressing her views on immigration was not being paranoid.” 

  United States v. Sineneng-Smith, 2018 WL 6314287, at *11 (9th Cir. Dec. 4, 2018), decision available here. 

Players: Important First Amendment decision by Judge Tashima, joined by Judges Berzon and Hurwitz.

  Huge win for, among many others, Chief Deputy FPD Stephen Sady and R&W Attorney Lisa Ma, D. Oregon FPD, and Carmen Smarandoiu, Appellate Chief, N.D. Cal FPD, for Amicus Curiae Federal Defender Organizations of the Ninth Circuit.  

Facts: Sineneng-Smith ran an immigration firm that assisted clients applying for “Labor Certifications” and green cards. Id. at *2. Retention agreements explained that the goal was to assist clients to “obtain permanent residence through Labor Certification.” Id. Unfortunately, that path to permanent residence ended, yet the retention agreements for these aliens continued for seven years. Id.

  Sineneng-Smith was charged with, among other things, 8 USC § 1324(a)(1)(A)(iv) and § 1324(a)(1)(B)(i): “encouraging or inducing an alien to reside in the country, knowing and in reckless disregard of the fact that such residence is in violation of the law.” Id.

  Her pretrial First Amendment motion to dismiss was denied, and she was convicted after trial. Id. After the case was first argued on appeal, the panel invited amici briefing. Id.

Issue(s): “Section 1324(a)(1)(A)(iv) (‘Subsection (iv)’) permits a felony prosecution of any person who ‘encourages or induces an alien to come to, enter, or reside in the United States’ if the encourager knew, or recklessly disregarded ‘the fact that such coming to, entry, or residence is or will be in violation of law.’ We must decide whether Subsection (iv) abridges constitutionally-protected speech. To answer this question, we must decide what ‘encourages or induces’ means.’” Id. at *1.

Held: “We do not think that any reasonable reading of the statute can exclude speech. To conclude otherwise, we would have to say that ‘encourage’ does not mean encourage, and that a person cannot ‘induce’ another with words. At the very least, it is clear that the statute potentially criminalizes the simple words – spoken to a son, a wife, a parent, a friend, a neighbor, a coworker, a student, a client – ‘I encourage you to stay here.’ The statute thus criminalizes a substantial amount of constitutionally-protected expression. The burden on First Amendment rights is intolerable when compared to the statute’s legitimate sweep. Therefore, we hold that Subsection (iv) is unconstitutionally overbroad in violation of the First Amendment.” Id. at *1.

Of Note: The government urged a “strained” interpretation of “encourages or induce” in a bid to save the statute. Id. at *8. Channeling Justice Scalia, Judge Tashima rejects the effort, and adopts a natural reading that would criminalize “encouraging statements” protected by the First Amendment. Id.

  Along the way, Judge Tashima relies on the great Stevens quote: ““[T]he First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.” Id. at *11. 

  A terrific opinion (and an important moment of legal history), Sineneng-Smith merits a close read.   

How to Use: On appeal Sineneng-Smith raised a First Amendment challenge: the panel asked for amicus briefing on an overbreadth claim. The government pleaded for “plain error” review, arguing that the overbreadth claim was waived because it was not raised in the initial appeal. Id. at *3. Judge Tashima rejects the government’s scramble: “Because Sineneng-Smith has asserted a First Amendment claim throughout the litigation, her overbreadth challenge ‘is – at most – a new argument to support what has been a consistent claim.’” Id. at *3. 

  Use Sineneng-Smith to brush back on the government’s pervasive “plain error” pitches.

                                               

For Further Reading: As reported earlier, President Trump jumped the gun and erroneously lambasted the Ninth Circuit for an admirable asylum decision by NorCal District Judge Jon S. Tigar (prompting an unprecedented defense by Chief Justice Roberts). See “For Further Reading” available here. 

  The Ninth has now caught up with the tweets. A three judge panel (two Republican-appointed judges, and one Democrat-appointed judge) has unanimously denied the government’s motion for a stay of Judge Tigar’s decision. See article here. 

 (Although, as Chief Justice Roberts has explained, the party affiliation of a federal judge doesn't matter). 

Image of the Honorable Judge Wallace Tashima from https://www.youtube.com/watch?v=CGD3bmSKvS8

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

.