US v. Sineneng-Smith, No. 15-10614 (12-4-18)(Tashima w/Berzon & Hurwitz). 

The 9^th holds that the offense of encouraging and inducing an alien to remain in the US is unconstitutionally overbroad as it violates the First Amendment. The two counts under 8 U.S.C. §§ 1324(a)(1)(A)(iv) and 1324(a)(1)(B)(i) cover a substantial amount of protected of First Amendment speech and activity.  The opinion’s introduction states it well:

We must decide whether Subsection (iv) abridges constitutionally-protected speech.  To answer this question, we must decide what “encourages or induces” means. 

The parties have widely divergent views about how to interpret the statute. Sineneng-Smith and several amici contend that encourage and induce carry their plain meaning and, therefore, restrict vast swaths of protected expression in violation of the First Amendment. The government counters that the statute, in context, only prohibits conduct and a narrow band of unprotected speech.

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.

Congrats to Steve Sady and Lisa Ma of the FPD Oregon (Portland) and Carmen Smarandoiu of the FPD Cal N FPD (SF) for their amicus work on behalf of the FPD of the 9^th Circuit. Kudos to defense counsel Dan Cook and the many other amici who weighed in.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/12/04/15-10614.pdf