J. GUADALUPE MARQUEZ-REYES, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
No. 17-71367
United States Court of Appeals for the Ninth Circuit
June 14, 2022
Agency No. A205-490-228. Argued and Submitted December 11, 2020. Seattle, Washington.
Before: Marsha S. Berzon and Eric D. Miller, Circuit Judges, and Sharon L. Gleason, District Judge. Opinion by Judge Miller; Dissent by Judge Berzon.
FOR PUBLICATION
OPINION
On Petition for Review of an Order of the Board of Immigration Appeals
Filed June 14, 2022
The Honorable Sharon L. Gleason, United States District Judge for the District of Alaska, sitting by designation.
SUMMARY**
Denying J. Guadalupe Marquez-Reyes‘s petition for review of a decision of the Board of Immigration Appeals, the panel held that: 1)
Applicants for cancellation of removal must establish that they have been “of good moral character,” for the previous ten years, and
In challenging
However, the panel held that “encouraged” here refers to the narrower, criminal law sense of soliciting or aiding and abetting criminal conduct. The panel explained that its interpretation was supported by: 1) the structure of the section—the other verbs in the provision connote complicity in a specific criminal act and, by contrast, the broad meaning of “encourage” that Marquez-Reyes advocated did not fit naturally with those verbs; 2) the title of section — “Smugglers“—and the fact that courts have interpreted smuggling to require affirmative assistance; 3) the remainder of the section—that the object of the encouragement must be an alien‘s entry “in violation of law” —and the fact that the statute applies only when the conduct has been undertaken “knowingly” (thus reinforcing that the statute targets involvement in specific criminal conduct); and 4) prior cases addressing
The panel rejected Marquez-Reyes‘s contention that its interpretation creates overlap with the other verbs in the section, explaining that, because no interpretation could avoid excess language here, the canon against superfluity had limited force. Further, the panel explained that, even if the panel had doubt about its interpretation, the canon of constitutional avoidance would militate in its favor.
Next, the panel considered whether
The panel also concluded that the statute does not reach mere advocacy because it requires some specific intent to facilitate the commission of another‘s crime. The panel distinguished this case from recent cases where this court found the term “encourage” in other statutes to be facially overbroad: United States v. Hansen, 25 F.4th 1103 (9th Cir. 2022), and United States v. Rundo, 990 F.3d 709 (9th Cir. 2021) (per curiam).
Next, the panel rejected Marquez-Reyes‘s argument that
The panel also rejected Marquez-Reyes‘s equal protection challenge, which was based on the fact that waivers of the alien-smuggling bar are available for certain noncitizens seeking admission or adjustment of status, but not for those seeking cancellation. Applying rational basis scrutiny, the panel observed that (in a different context), this court concluded that it was rational for Congress to allow such waivers only to persons who have complied with immigration laws, and not to those who entered without inspection and then attempted to smuggle others.
Finally, the panel held that the agency did not abuse its discretion in denying administrative closure, explaining that the agency considered the applicable factors and explained its conclusions. The panel also rejected Marquez-Reyes‘s reliance on a BIA case that was decided after the IJ‘s decision and noted that the BIA‘s de novo review made any error by the IJ harmless.
Dissenting, Judge Berzon wrote that the majority‘s holding is inconsistent with Rundo and Hansen and illogical on its own terms. She also wrote that, construed in accordance with its ordinary meaning, “encouraged” includes a wide swath of constitutionally protected speech. Judge Berzon explained that Rundo and Hansen have demonstrated that a statutory provision that penalizes “encouraging” someone to do something runs a serious risk of chilling speech by covering a substantial amount of protected speech, compared to its legitimate sweep. The majority strained to avoid this problem by interpreting “encouraged,” improbably, to cover only speech closely connected to a crime—but, as Judge Berzon explained, not closely enough to survive First Amendment invalidity. Because, in Judge Berzon‘s view, the majority‘s approach was an untenable statutory interpretation and also one insufficient to save the statute from invalidity, she would instead adopt Rundo‘s solution and sever the word “encouraged” from
COUNSEL
Benjamin E. Stein (argued) and Henry Cruz, Rios & Cruz P.S., Seattle, Washington, for Petitioner.
Craig A. Newell Jr. (argued), Trial Attorney; Emily Anne Radford, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
MILLER, Circuit Judge:
OPINION
J. Guadalupe Marquez-Reyes, a native and citizen of Mexico, petitions for review of a decision of the Board of Immigration Appeals denying his request to administratively close his removal proceedings. An immigration judge ordered Marquez-Reyes removed from the United States after he admitted that he had committed acts that disqualified him from obtaining cancellation of removal: He twice “encouraged” his eldest son to enter the United States illegally. Marquez-Reyes now argues that the “encouraged” component of the alien-smuggling statute,
I
Marquez-Reyes entered the United States without inspection in 1998 and has lived here ever since. In 2013, the government opened removal proceedings against him. Marquez-Reyes conceded that he was removable but requested cancellation of removal. At his final hearing, however, Marquez-Reyes admitted that he was ineligible for cancellation of removal because he had twice “encouraged” his son (who is not a United States citizen) to enter the country illegally, once in October 2010 and again in February 2011. Marquez-Reyes did not say—and the record does not otherwise reveal—just what he said or did by way of encouragement. Nevertheless, the admission was legally significant. Only those who have been “of good moral character” for the previous ten years are eligible for cancellation of removal.
To avoid that statutory barrier, Marquez-Reyes asked the immigration judge to administratively close his removal proceedings for approximately five years so that he could accrue the necessary time to become eligible for a finding of “good moral character” and thereby qualify for cancellation of removal. The immigration judge denied his request and ordered him removed. The Board of Immigration Appeals dismissed his appeal.
II
We begin with Marquez-Reyes‘s claim that
Marquez-Reyes does not argue that he engaged in constitutionally protected speech, such that applying the statute to him would violate the First Amendment. He could not make such an argument because he has carefully avoided describing what his speech was, or even whether he engaged in speech at all. Instead, all he has told us is that he “encouraged” his son to enter the United States illegally—and,
In most contexts, “a person to whom a statute may constitutionally be applied may not challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the Court.” Los Angeles Police Dep‘t v. United Reporting Publ‘g Corp., 528 U.S. 32, 38 (1999) (quoting New York v. Ferber, 458 U.S. 747, 767 (1982)). That rule reflects the important constitutional principles “that under our constitutional system courts are not roving commissions assigned to pass judgment on the validity of the Nation‘s laws” and that ruling on the constitutionality of a statute is “justified only out of the necessity of adjudicating rights in particular cases between the litigants brought before the Court.” Broadrick v. Oklahoma, 413 U.S. 601, 610–11 (1973); see United States v. Sineneng-Smith, 140 S. Ct. 1575, 1586–87 (2020) (Thomas, J., concurring).
Nevertheless, the Supreme Court has recognized a limited exception for certain First Amendment claims. Under the doctrine of overbreadth, litigants may be “permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute‘s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Broadrick, 413 U.S. at 612; see Ferber, 458 U.S. at 768-69.
But the Court has repeatedly cautioned that “overbreadth is ‘strong medicine’ that is not to be ‘casually employed.‘” Sineneng-Smith, 140 S. Ct. at 1581 (quoting United States v. Williams, 553 U.S. 285, 293 (2008)). A statute is not overbroad just because “one can conceive of some impermissible applications.” Members of City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 800 (1984). Instead, its overbreadth must “be substantial, not only in an absolute sense, but also relative to the statute‘s plainly legitimate sweep.” Williams, 553 U.S. at 292; accord Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449 n.6 (2008). There must, in other words, be “a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court.” Acosta v. City of Costa Mesa, 718 F.3d 800, 811 (9th Cir. 2013) (quoting Taxpayers for Vincent, 466 U.S. at 800–01). That standard is not satisfied here.
A
We start by construing the statute, as “it is impossible to determine whether a statute reaches too far without first knowing what the statute covers.” Williams, 553 U.S. at 293. Our analysis begins with the text. Hall v. United States Dep‘t of Agric., 984 F.3d 825, 837 (9th Cir. 2020). Section
The Immigration and Nationality Act does not define “encouraged,” and normally, when a statute does not define a term, we apply the term‘s ordinary meaning. Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 47 (1989). Marquez-Reyes urges us to do so here and to construe “encourage” based on a dictionary definition: “inspire with courage, spirit, or hope ... spur on ... give help or patronage to.” Merriam Webster‘s Collegiate Dictionary 410 (11th ed. 2014); see also United States v. Thum, 749 F.3d 1143, 1147 (9th Cir. 2014). That definition, he observes, encompasses a wide range of constitutionally protected speech, such as an alien‘s ordinary conversations with overseas relatives (“I wish you were here with me.“) or public demonstrations supporting immigrant rights (“We welcome all immigrants.“).
Sometimes, however, statutory context indicates that a word is not used in its ordinary sense but instead carries a technical or specialized meaning. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 73 (2012). The word “encouraged” has such a meaning in criminal law, where it refers to solicitation or aiding and abetting. See, e.g., Cox v. Louisiana, 379 U.S. 559, 563 (1965) (“A man may be punished for encouraging the commission of a crime.“). Under the Model Penal Code, for example, a person is guilty of criminal solicitation “if with the purpose of promoting or facilitating its commission he commands, encourages or requests another person to engage in specific conduct that would constitute such crime.” Model Penal Code § 5.02(1) (emphasis added). A number of States have similar laws imposing criminal liability on those who knowingly or purposefully “encourage” the commission of a specific criminal act. See, e.g.,
The structure of
The remainder of
Our interpretation is consistent with prior cases addressing
Marquez-Reyes points to Thum, in which we noted that “encourage” has a broad ordinary meaning. 749 F.3d at 1147.
Marquez-Reyes also argues that our interpretation of “encouraged” creates overlap with the other verbs in
That is not to say that the list of verbs consists entirely of synonyms or that we can ignore the canon against superfluity altogether. But it suffices to observe that “encouraged“—understood to encompass solicitation—has at least some distinct applications from its neighboring verbs. Imagine, for example, someone who promises to give a job to an alien if he comes to the United States unlawfully. That promise might not involve assisting—or aiding and abetting—because it would play no role in helping the individual actually cross the border; it would merely provide benefits after the fact. See United States v. Innie, 7 F.3d 840, 852 (9th Cir. 1993) (“[B]eing an accessory after the fact is clearly different from aiding and abetting.“). And it might not constitute inducement if the person ultimately did not enter the United States, as “induce” suggests a successful effort to persuade someone to do something. See Webster‘s Third New International Dictionary 1154 (2002) (“to move and lead (as by persuasion or influence)“). But it could constitute encouragement.
Even if we had some doubt about our interpretation of the word “encouraged,” the canon of constitutional avoidance would militate in its favor. See Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Const. Trades Council, 485 U.S. 568, 575 (1988) (“[W]here an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems.“). Under Marquez-Reyes‘s interpretation,
In sum, “encouraged” refers to soliciting or aiding and abetting criminal conduct, and
B
We now consider whether
At the outset, we reject Marquez-Reyes‘s suggestion that we focus our analysis solely on “encouraged” to the exclusion of the remaining verbs. In conducting the overbreadth inquiry, we must determine whether the statute, taken as a whole, reaches an impermissible quantum of protected speech that far exceeds its legitimate sweep. See Ferber, 458 U.S. at 769 n.24. Only then may we determine whether the statute is “severable,” and if so, invalidate “only the unconstitutional portion.” Id.; see United States v. Kaczynski, 551 F.3d 1120, 1125 (9th Cir. 2009) (“A court does not sever a statute prior to determining whether it is facially valid.“).
“[A]s a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” United States v. Stevens, 559 U.S. 460, 468 (2010) (quoting Ashcroft v. ACLU, 535 U.S. 564, 573 (2002)). But the First Amendment does not protect speech that is “used as an integral part of conduct in violation of a valid criminal statute.” Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 (1949). Statutes that punish “conspiracy, incitement, and solicitation” of crimes may reach at least some speech but nevertheless survive facial First Amendment scrutiny. See Williams, 553 U.S. at 298; see also Cox, 379 U.S. at 563.
To the extent that cases under
We recognize that an “important distinction” exists “between a proposal to engage in illegal activity and the abstract advocacy of illegality,” the latter of which is constitutionally protected. Williams, 553 U.S. at 298–99; see Brandenburg v. Ohio, 395 U.S. 444, 447-48 (1969) (per curiam). But the statute here proscribes intentional conduct that solicits, aids, or abets a specific alien in an attempt to enter the United States illegally. We have observed that “the mens rea and actus reus required for solicitation are similar to those required for aiding and abetting, conspiracy and attempt.” United States v. Contreras-Hernandez, 628 F.3d 1169, 1173 (9th Cir. 2011) (quoting United States v. Cornelio-Pena, 435 F.3d 1279, 1286 (10th Cir. 2006)). It requires, in other words, “the specific intent to facilitate the commission of a crime by someone else.” United States v. Garcia, 400 F.3d 816, 819 (9th Cir. 2005). The statute therefore does not reach mere abstract advocacy, as Marquez-Reyes suggests.
In this respect,
We also emphasized that
Our decision in United States v. Rundo, 990 F.3d 709 (9th Cir. 2021) (per curiam), is similarly unhelpful here because it too involved the word “encourage” in a very different statutory context. In that case, we considered a provision of
We need not decide whether
III
Marquez-Reyes next argues that
Amendment‘s Due Process Clause. He does not suggest that the statute is vague as applied to his conduct. To the contrary, he concedes that his actions—whatever they were—involved encouraging unlawful entry and therefore fell within the scope of
In Kashem v. Barr, 941 F.3d 358, 377 (9th Cir. 2019), we suggested that a party whose conduct is clearly covered by a statute might be able to bring a facial vagueness challenge in “exceptional circumstances,” such as when a statute is “plagued by such indeterminacy that [it] might be vague even as applied to the challengers.” Cf. Johnson v. United States, 576 U.S. 591, 602–04 (2015). But this case does not present such circumstances. Marquez-Reyes admits that his actions are covered by the statute, and his vagueness challenge therefore fails.
IV
Marquez-Reyes‘s equal-protection challenge fares no better. Under
To establish an equal-protection violation, Marquez-Reyes must show that he is “being treated differently from similarly situated individuals.” Gonzalez-Medina v. Holder, 641 F.3d 333, 336 (9th Cir. 2011). Where, as here, there is no assertion that the distinction “implicates fundamental rights or involves a classification along suspect lines, only rational basis scrutiny applies.” United States v. Calderon-Segura, 512 F.3d 1104, 1107 (9th Cir. 2008). Under rational-basis review, a legislative classification “comes to us bearing a strong presumption of validity.” FCC v. Beach Commc‘ns, Inc., 508 U.S. 307, 314 (1993). Those “attacking the rationality of the legislative classification have the burden ‘to negative every conceivable basis which might support it.‘” Id. at 315 (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973)). And our review is particularly deferential where the classification involves an exercise of Congress‘s authority to regulate immigration: “‘[O]ver no conceivable subject is the legislative power of Congress more complete than it is over’ the admission of aliens.” Kleindienst v. Mandel, 408 U.S. 753, 766 (1972) (quoting Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909)).
In Sanchez, we held that
V
Marquez-Reyes last argues that the agency abused its discretion when it denied his request for administrative closure. “Administrative closure is a procedure by which an [immigration judge] or the BIA temporarily removes a case from
(1) the reason administrative closure is sought; (2) the basis for any opposition to administrative closure; (3) the likelihood the respondent will succeed on any petition, application, or other action he or she is pursuing outside of removal proceedings; (4) the anticipated duration of the closure; (5) the responsibility of either party, if any, in contributing to any current or anticipated delay; and (6) the ultimate outcome of removal proceedings (for example, termination of the proceedings or entry of a removal order) when the case is recalendared before the Immigration Judge or the appeal is reinstated before the Board.
Marquez-Reyes says that the immigration judge applied the wrong legal standard by failing to consider that the government did not articulate a reason for opposing administrative closure. While the immigration judge did not expressly weigh that fact, neither did he ignore the opposition altogether or misstate the applicable test. Instead, the immigration judge applied the five remaining Avetisyan factors and explained that Marquez-Reyes was not pursuing any sort of petition beyond the existing proceedings; that the period of closure he requested—around five years—was lengthy; that it was uncertain whether he would earn discretionary cancellation of removal relief after those five years; that he was responsible for his own ineligibility; and that he was seeking closure for reasons that would undermine the legislative purpose of the ten-year moral-character requirement. We see no abuse of discretion in the application of those factors.
Marquez-Reyes relies on Matter of W-Y-U-, 27 I. & N. Dec. 17 (B.I.A. 2017), in which the Board held that “the primary consideration for an Immigration Judge in determining whether to administratively close or recalendar proceedings is whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits.” Id. at 18–20. That decision, however, was issued after the immigration judge‘s decision in this case, so it was not then binding on the agency. See Avila-Sanchez v. Mukasey, 509 F.3d 1037, 1040 (9th Cir. 2007). (Our analysis is also unaffected by the Board‘s decision to overrule Avetisyan in Matter of Castro-Tum, 27 I. & N. Dec. 271 (B.I.A. 2018), because the Attorney General has since overruled Castro-Tum and restored the Avetisyan standard. Matter of Cruz-Valdez, 28 I. & N. Dec. 326 (Att‘y Gen. 2021).)
In any event, the Board had the benefit of the government‘s subsequently provided rationale for its opposition—Marquez-Reyes‘s status as “an enforcement priority“—and its de novo review made any error by the immigration judge harmless. See Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir. 1995). The agency did not abuse its discretion in determining that the proceedings should go forward.
PETITION DENIED.
BERZON, Circuit Judge, dissenting:
I respectfully dissent. The majority‘s holding regarding the meaning of “encouraged” in Section 212(a)(6)(E)(i) of the Immigration and Nationality Act,
1. Twice in the past two years, this Court has invalidated statutory provisions that made it a crime to “encourage” another person to do something. United States v. Rundo, 990 F.3d 709, 720 (9th Cir. 2021), cert. denied, 142 S. Ct. 865 (2022); United States v. Hansen, 25 F.4th 1103, 1110–11 (9th Cir. 2022). Reviewing those provisions, we recognized that the “government may restrict speech ‘in a few limited areas,’ including ... incitement[] and speech integral to criminal conduct.” Hansen, 25 F.4th at 1109 (quoting United States v. Stevens, 559 U.S. 460, 468 (2010)). But those exceptions to First Amendment protection are narrowly defined. Beginning with incitement, “[t]he constitutional guarantees of free speech and free press” protect “advocacy of ... law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Rundo, 990 F.3d at 713 (emphasis added) (quoting Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam)). As for speech integral to criminal conduct, that exception applies only “if the intent of the actor and the objective meaning of the words used are so close in time and purpose to a substantive evil as to become part of the ultimate crime itself.” United States v. Freeman, 761 F.2d 549, 552 (9th Cir. 1985). In Rundo and Hansen, we concluded that simply “encouraging” action either did not qualify as, or was not limited to, incitement or speech integral to criminal conduct. Rundo, 990 F.3d at 717; Hansen, 25 F.4th at 1110. The statutory provisions at issue therefore ran afoul of the First Amendment by prohibiting too much protected speech. Rundo, 990 F.3d at 720; Hansen, 25 F.4th at 1110.
More specifically, Rundo addressed the Anti-Riot Act,
[w]hoever travels in interstate or foreign commerce or uses any facility of interstate or foreign commerce ... with intent ... to organize, promote, encourage, participate in, or carry on a riot ... and who either during the course of any such travel or use or thereafter performs or attempts to perform any other overt act for [a specified purpose] ... [s]hall be fined under this title, or imprisoned not more than five years, or both.
Hansen addressed a statute imposing criminal penalties on “[a]ny person who ... encourages or induces 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.”
Hansen acknowledged that the “encourages” provision “encompasse[d] some criminal conduct,” such as “procuring and providing fraudulent documents and identification information to unlawfully present aliens, assisting in unlawful entry, misleadingly luring aliens into the country for unlawful work, and smuggling activities.” Id. at 1109 (emphasis added). Considering those examples, we concluded that the provision had a “relatively narrow legitimate sweep.” Id. And it troubled us that “many of these crimes seem also to be encompassed by the other subsections of
In comparison, we concluded, the provision covered “a substantial amount of protected speech,” including “[m]any commonplace statements and actions.” Id. at 1110. For example, the “plain language” of the provision covered “knowingly telling an undocumented immigrant ‘I encourage you to reside in the United States.‘” Id. We emphasized that that statement was “protected by the First Amendment.” Id. As the Supreme Court explained in United States v. Williams, 553 U.S. 285 (2008), such a statement is protected “abstract advocacy.” Id. at 299-300 (giving the example “I encourage you to obtain child pornography“). Hansen offered several other examples of protected speech covered by the “encourages” provision, including “encouraging an undocumented immigrant to take shelter during a natural disaster, advising an undocumented immigrant about available social services, telling a tourist that she is unlikely to face serious consequences if she overstays her tourist visa, or providing certain legal advice to undocumented immigrants.” Hansen, 25 F.4th at 1110. Concluding that the “chilling effect” of the provision was “substantial,” we invalidated it as overbroad. Id. at 1110–11.
2. The smuggling statute we interpret in this case provides that “[a]ny alien who at any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law is inadmissible.”
As evidence that “encourage” has a “narrower, criminal-law” meaning, the majority quotes the Model Penal Code‘s definition of criminal solicitation, which provides that a person is guilty of solicitation to commit a crime “if with the purpose of promoting or facilitating its commission he commands, encourages or requests another person to engage in specific conduct
First, relying on the Model Penal Code definition of “criminal solicitation” to define “encourage” is circular, as the definition uses the word “encourage“; it does not define it, narrowly or otherwise. Telling us that solicitation includes “encourag[ing] ... another person to engage in specific conduct that would constitute [a] crime” does not tell us what “encourage” means, and it certainly does not tell us that “encourage” equates to criminal solicitation. See Majority Op. 14 (“‘[E]ncouraged’ [is] understood to encompass solicitation“). And, of course, precisely because “solicitation” is a common criminal law concept, one would think that if Congress meant “solicited” in
Second, the Model Penal Code definition of criminal solicitation the majority relies upon requires that the encouragement relate to a specific crime, but it does not limit the application of the term to conduct rather than speech. And the Model Penal Code definition does not appear to meet our case law‘s narrow definition of “speech integral to criminal conduct,” that is, speech in which “the intent of the actor and the objective meaning of the words used are so close in time and purpose to a substantive evil as to become part of the ultimate crime itself.” Freeman, 761 F.2d at 552. As we later explained in United States v. Sineneng-Smith, 910 F.3d 461 (9th Cir. 2018), vacated and remanded on other grounds, 140 S. Ct. 1575 (2020):
In Freeman, we reviewed “convict[ions] on fourteen counts of aiding and abetting and counseling violations of the tax laws, an offense under
26 U.S.C. § 7206(2) .” [Freeman, 761 F.2d] at 551. We held that the defendant was entitled to a jury instruction on a First Amendment defense as to twelve of the counts because, at least arguably, the defendant made statements about the “unfairness of the tax laws generally.” Id. at 551–52. Conversely, the defendant was not entitled to the First Amendment instruction on the remaining two counts because the defendant actually assisted in the preparation of false tax returns. Id. at 552. We reasoned that “[e]ven if the convictions on these [two] counts rested on spoken words alone, the false filing was so proximately tied to the speech that no First Amendment defense was established.” Id. As Freeman illustrates, although some speech that aids or abets a crime is so integral to the crime itself that it is not constitutionally protected, other speech related to criminal activity is not so integral as to be unprotected.
Sineneng-Smith, 910 F.3d at 481 (first, third, and fourth alterations in original).
In my view, our best hope of construing “encouraged” in
The problem is, if we were to interpret “encouraged” in
I note that the majority could have interpreted “encouraged” in
Rundo and Hansen have demonstrated that a statutory provision that penalizes “encouraging” someone to do something runs a serious risk of chilling speech by covering a substantial amount of protected speech, compared to its legitimate sweep. The majority strains to avoid this problem by interpreting “encouraged” in