What are the Limits on Freedom of Speech?
- Does Congress have the legal authority to criminalize certain types of speech?
- Can you tell people they should break the law?
- Hernandez-Calvillo & Papalotzi challenged their conviction on encouraging someone to enter the country illegally.
Most of us have heard of the case where the Supreme Court placed limits on the freedom of speech. However, most people don’t know the name of the case and frequently misquote it. A recent case out of Kansas once again brings into question the government’s ability to criminalize certain types of speech. From the Schneck case in 1919 to the Hernandez-Calvillo case in 2022, when the government tries to make speech it doesn’t like criminal, We the People must stand up to the tyranny.
In 1917 Congress passed the Espionage Act, which declared:
whoever, when the United States is at war, shall willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or shall willfully obstruct the recruiting or enlistment service of the United States, to the injury of the service or of the United States, shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years, or both.
Congress also passed an act to increase the size of the U.S. military, including using a draft.
To draft into the military service of the United States, organize, and officer, in accordance with the provisions of section one hundred and eleven, of said national defense Act, so far as the provisions of said section may be applicable and not inconsistent with the terms of this Act, any or all members of the National Guard and of the National Guard Reserves, and said members so drafted into the military service of the United States shall serve therein for state the period of the existing emergency unless sooner discharged:
Not surprisingly, there were many Americans who were not happy with the idea of a military draft. Mr. Schenck, as general secretary of the Socialist Party, was authorized by it to produce and distribute 15,000 leaflets stating that the draft violated the Thirteenth Amendment to the Constitution of the United States. The case of Schenck v. United States is where we get the mythical prohibition against yelling fire in a crowded theater. In that case the Supreme Court stated that Freedom of Speech could not be used as a defense for illegal actions.
In the case United States v. Jose Felipe Hernandez-Calvillo & Mauro Papalotzi, Mrrs. Hernandez-Calvillo and Paplotzi were charged with using illegal aliens for labor in their sheet rocking business. When the case was heard by a jury, they found the appellees guilty of conspiracy, but not of actually encouraging or inducing people to come to or reside in the country illegally. The appellees asked for the charge of conspiracy to be dropped because 8 U.S.C. § 1324(a)(1)(A)(iv) violates the First Amendment by criminalizing speech. Specifically, this law claims it’s a crime for someone 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;
The case before the District Court focused solely on the constitutional challenge to §1324(a)(1)(A)(iv). So how should the court look at this case?
As when interpreting any statute, we start with the statute’s plain language and “assume that the legislative purpose is expressed by the ordinary meaning of the words used.”
As I’ve said before, if you want to know what the law means, you start with the plain reading of the language. So, does subsection (A)(iv) abridge the freedom of speech? At first glance that answer seems to be yes. Sure, you can induce people by offering them money or other services, but you can also induce by verbal persuasion, and the plain meaning of ‘encourage’ involves speech. Of course, not everyone agrees with this point of view.
An ordinary definition of the word “encourage” might be, as the Court suggests, “[t]o give courage to: inspire with courage, spirit, or hope: hearten.” ..But that definition is somewhat vague. In keeping with the principles of statutory construction, we should strive to find a more precise definition of the word that still comports with its ordinary meaning.
Yes, words in English can have different senses based on context. But as a wise man once said, “when you hear hoofbeats, think horses not zebras.” Put another way, the simplest answer is generally the correct one. Is the definition of “encourage” vague? Just what evidence is there that when Congress used the words encourage and induce, they meant facilitation or solicitation?
The government maintains that the Ninth Circuit (and thus the district court) misread subsection (A)(iv) because the statute does not use the words encourage and induce in their ordinary sense; instead, the government asserts, it uses them as synonyms for the criminal-law concepts of facilitation (also known as aiding or abetting) and solicitation. In other words, the government reads subsection (A)(iv) as targeting those who facilitate or solicit others to engage in certain illegal immigration activity—specifically, unlawfully “com[ing] to, enter[ing], or resid[ing] in the United States.”9 § 1324(a)(1)(A)(iv). And to the extent that a person could facilitate or solicit this activity using speech, the government says, the First Amendment would not protect such speech.
So which is it? Was Congress using the ordinary meanings of encourage and induce or the more legalistic definitions? Putting subsection (A)(iv) in context, we have our answer.
Other language in § 1324 confirms that Congress used encourage and induce in their ordinary sense, not in their more limited and specialized criminal-law sense. For one thing, if Congress intended this specialized meaning, there would be a potential overlap between subsections (A)(iii) (“conceals, harbors, or shields from detection” a noncitizen) and (A)(iv) (“encourages or induces an alien to come to, enter, or reside in the United States”).
Where does that leave us on the question of First Amendment protections? Can Congress make it a crime to merely encourage someone to break the law?
The Court makes this case much harder than it need. If we consider an ordinary, common-sense definition of the words “encourage” and “induce” together with the Supreme Court’s instructions for overbreadth cases, 8 U.S.C. § 1324(a)(1)(A)(iv) is a solicitation statute and nothing more. To be sure, the Government overplays its hand by suggesting it also encompasses facilitation. Nevertheless, that is an inadequate reason for us to declare the statute unconstitutionally overbroad when it is otherwise subject to a reasonable and constitutional construction.
If I say you should do something, I may be encouraging you, but is that solicitation?
Earnest request; a seeking to obtain something from another with some degree of zeal and earnestness;
If we’re looking for the simplest answer to that question, then I think our conclusion should be pretty clear.
Ultimately, subsection (A)(iv) cannot bear the government’s limiting construction. The ordinary meanings of encourage and induce encompass both conduct and speech, and nothing in the statutory language or surrounding context suggests that Congress gave those terms a narrower meaning akin to the criminal-law concepts of facilitation and solicitation.
While the words encourage and induce could be used as a part of a description for solicitation, the court found nothing to indicate that Congress meant anything other than the ordinary definition of these words when they wrote the law. Since both encouragement and inducement can be done with simple speech, then the law, as written, is too broad, allowing for the infringement of a person’s speech.
In the end, the comparison of subsection (A)(iv)’s constitutional and unconstitutional applications is one-sided. Based on the government’s examples, the statute mostly (if not entirely) proscribes conduct already made criminal by other statutes. We are therefore not convinced that invalidating subsection (A)(iv) would deprive the government of a critical enforcement tool or leave wide swaths of criminal conduct unpunished. And as much as there are some legitimate applications of subsection (A)(iv), they pale in comparison to the illegitimate ones. The statute’s plain language is “susceptible of regular application to protected expression,” reaching vast amounts of protected speech uttered daily. ... For these reasons, we hold that subsection (A)(iv) is substantially overbroad under the First Amendment. Accordingly, we affirm the dismissal of the indictment.
Which brings me back to Mr. Schenck. While the outcomes of these two cases are different, there is a lot of similarity in the details. Both involved Congress attempting to criminalize speech. In Mr. Schenck’s case, it was providing information to encourage people to resist the draft because it was illegal indentured serviced. In the cases of Mrs. Hernandez-Calvilli & Papalotzi, it was encouraging people to break immigration law. From Schenck, we got an often misquoted opinion claiming that you can be charged for speech without actually committing a crime. And from Hernandez-Calvilli & Papalotzi we have the court recognizing that the plain, ordinary language of a law, absent evidence to the contrary, is exactly what Congress had in mind. What I do see here is a court saying “If Congress meant to be more specific, they should have been.”
The next question is will this case be appealed to the circuit? At this point, I don’t know. Have Mrs. Hernandez-Calvilli & Papalotzi used solicitation or merely speech? Again, I don’t know. As the court noted, other subsections of the law provide for more specific crimes, but subsection (iv) is so broad as to include speech in general, not specifically solicitation.
If we were to apply subsection (iv) equally, then many politicians, pundits, and everyday Americans would be guilty. Just think of how many people, from the President of the United States to state and local officials, have encouraged or induced aliens to enter or reside in the United States knowing that doing so would be in violation of the law. If Mrs. Hernandez-Calvilli & Papalotzi were found guilty of subsection (A)(iv), then the law would require a large percentage of our politicians, pundits, and media personnel be found guilty as well. While that idea may appeal to some, the damage it would do to our rights and the Constitution of this nation would be far worse.