From today's Tenth Circuit decision in U.S. v. Hernandez-Calvillo, written by Judge Nancy Moritz and joined by Judge Scott Matheson.
This appeal involves the constitutionality of a federal immigration statute that makes it a crime to encourage or induce a noncitizen to reside in the United States, knowing or recklessly disregarding that such residence violates the law…. We [conclude that] Section 1324(a)(1)(A)(iv)'s plain language targets protected speech, and neither the government's nor the dissent's proposed limiting construction finds support in the statute's text or surrounding context. And when properly construed, the statute criminalizes a substantial amount of constitutionally protected speech, creating a real danger that the statute will chill First Amendment expression….
Subsection (A)(iv), the provision challenged as overbroad here, makes it a crime to "encourage[] or induce[] 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 government maintains that … 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." [But the court disagreed, for reasons I generally omit here. -EV] … 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….
Our conclusion that subsection (A)(iv) reaches at least some speech does not end the analysis, of course, because the First Amendment does not protect all kinds of speech. Indeed, the Supreme Court has long recognized several "narrowly limited" categories of unprotected speech, "the prevention and punishment of which … raise [no] [c]onstitutional problem." These categories include "obscenity, defamation, fraud, incitement, and speech integral to criminal conduct." The government invokes the last category, arguing that any speech covered by subsection (A)(iv) is unprotected because it is "integral to criminal conduct."
