Out and give them a vastly more interpretation simply to strike the statute down. Unlawful activity have existed since before the founding, and are perfectly constitutional. Interpreting this lot to be unconstitutionally overbroad, would deviate from that tradition and directly contradict the canon of constitutional avoidance. Historical understanding and practice confirm that congress did not use these familiar criminal law terms to enact a novel and broadband on speech. Predecessors to the statute have been on the books since the late 19th century, and this provision has existed and it substantially existed form for decades. Yet they have identified no actual instances in which the statute has been applied to protect the first moment activity or any concrete documented insistence of speech. The absence of such evidence is not just happenstance, and it doesnt just reflect longstanding executive selfrestraint. Its because the statute isnt aimed at speech and it certainly does not encompass it. To the extent that it could be applied to protected speech, that can be handled to the normal mechanism as applied first to mimic challenges in that case. This isnt such a case because respondents own activity of fraudulently inducing aliens to pay for lawful evidence is not protected by the First Amendment. And she is entitled to the last resort remedy of validation that the ninth circuit on its own initiative reached out to impose. Cement thats ridiculous l because she is convicted of a offense that cries a jury to find without a reasonable doubt that she acted for the purpose of financial gain. You would acknowledge though that this would be unconstitutional as applied . I suppose there might be some circumstances this could be unconstitutional as applied. I dont know that anyone has had that application where the statute would. [inaudible] a grandmother whose granddaughter is in the United States illegally, tells a granddaughter i hope you will stay because i will miss you, things will not get better if you go back. So i encourage you to stay. That would be illegal under the statute, right . It would not be illegal under the statute your honor. First of all the issue of when verbal acts or other acts cross the line into criminal complicity or solicitation, is not an issue unique to the statute. Its one criminal laws dealt with for centuries. Something that abstract is not going to be criminal complicity. In particular this statute we think covers a more narrow subset of criminal complicity in solicitation. It really requires substantial participation in some unlawful venture or trying to have an unlawful venture with the goal that that unlawful venture will actually occur. It was a decision and took the judge who cited, i think it was a Districts Court in massachusetts in which he said that was an instance where this statute was applied. It was applied to encroach on the First Amendment rights. So your honor, i dont think that prosecution was against the First Amendment itself. I think what worried the judge was the colloquy that happened during that case in which a discussion was had about a hypothetical case in which for example the statute could in theory be applied to the actions of the lawyer. Now again, the actions of the lawyer, and when those cross the line into criminal complicity or solicitation is also not a problem that is unique to the statute. But it is an issue that criminal laws dealt with for quite a long time. What about a charity . So a Charity Provides food to someone who is in the country unlawfully. So first of all your honor, that would be conduct rather than speech so it would not factor into the breath analysis. Is it covered under the statute . So if a charity were to give out food to people that the charity newer rack loosely disregarded were in the country unlawfully on the same terms they give that food to other needy people, then know your honor. Furthermore i think interpreting the statute its important to remember its part of the immigration. What if it is not on the same terms and is designed to provide food for people who cant get it elsewhere and they know the people taking advantage that are here unlawfully. Say your honor, theres no explicit exception of the statute for activity that are denominated as charitable. To the extent that a charity were doing something that violated that claim turns the statute that ran to into giving effectively giving money to people or to the equivalent of money for the purpose of this people would reside in the United States unlawfully. That might violate the statute. I stink another limiting feature is to recall that it is part of the immigration and nationality act. That statute has to be interpreted as a whole, and not itself. In 16 to 21 the nationality act expressly contemplated theres good to be circumstances in which public and private benefits may be given to people in the United States unlawfully. The statute has never been used to my knowledge and responded her mickey has not come up with an instance where its been used to process. It has been used according to the Amnesty International brief. Dhs admitted there was a watch list at the border in which these charitable organizations, people who were giving legal advice of the border, all sorts of individuals were being watched because they could potentially violated this in encouragement envision this inducement provision. So you are saying theres been no absolutes theres been no process fusion except hendren son, which was a woman who hired a housekeeper who told her the absolute truth. If you go back if you returned your country country you may not get back. Absolutely true statement and she was prosecuted for that true statement. It was an encouragement and inducement. For the housekeeper to stay here. But if you say this has note chilling effects, is that accurate . Your honor let me take those two examples in turn. First of all the International Letter if you look at it, the conduct in that case was focused on investigating violence against Border Patrol agents and suspicion that people were being counseled to lights immigration officials. I dont think either of those things is protected by the First Amendment. As for the henderson case, i think there were more facts and context in that case. That was the prosecution, and i will acknowledge that cases very close to the line of what we think the statute. Could i ask one question, if this lawyer had sincerely believed is in fact it was true or close to the truth if she just got it wrong . That there was a lawful program that these individuals could have access to keep them here. Would you have been able to prosecute her . No your honor we could not have. I think that goes back to saying. Just let me interrupt you for one Second Period you did prosecute her for pride. For fraudulently telling her clients they were eligible for this correct . To be clear the defendant is not a lawyer. Im not one but that im talking about this case. We prosecuted zero im sorry, this particular case, yes, she was not acting as a lawyer even though she is a lawyer. We prosecuted her for lying to her clients and the jury found that she knew she was lying to her clients. She lied to her client that by applying for a particular government program, she was putting them on a path to lawful residents. She charged each of her clients about 6000 for that. She kept sending them letters to tell them. Could you tell me what the deference and trend differences in penalty for fraud convictions as opposed to conviction under the statute . You mean under the mail fraud statute. Under the mail fraud statute versus this one. Is there a difference of the penalties . The mail fraud statute i believe has a statutory range of zero to 20 years of imprisonment. Under this statute it was zero to ten, i believe, because the financial gain element. I would emphasize that this particular conduct may be covered by two different provisions. It is first of all happenstance, she could have easily given the client the same advice verbally, then it would not be covered by mail fraud. Lets go back to my original question. Lets say this program was up path and they were still here unlawfully. Can you read the words of the statute to me that tell me she would not be prosecuted for encouraging or inducing them to stay while they went through lawful path . Your honor, we dont think it is encouragement or inducement knowing or restless disregard of the aliens unlawful status. To either advise them of the existence of or help someone to apply for a lawful government program. Let me explain why. First about an issue like this came up in the United States against williams in which the argument was put forth to the court that a statute that criminalized presenting pornography might in theory be ending china for naga field to the place. The court was skeptical of such a novel and quote selfdefeating interpretation of the statute. Think that reflects a broader principle that a statute like this should not lightly be interpreted to apply to conduct the simply participates in a government program. That is particularly true in that statute is part of the immigration and nationality act. You said that point which is a good point. I want to be sure i get an answer to this question though. You have read the briefs, obviously, they have a long list of of which this is just a few. Youve heard this morning. But professors brief gets most of these in a simple way. He lists the conditions under which the court traditionally has said the solicitation of a crime statute is constitutional. But the first condition, and most important, is what you are soliciting is a crime. And its easy to read this when they use more its violation of criminal law. Okay. And that would be most of them. I think all them i dont know. But, i know that sometimes, an alien who enters the United States is committing a crime. But i cant think of any instance in which residing in the United States is a crime. But if you could think of one, and you might not like this, but i could see saying what was restricted to the prosecution of that one. But if there is zero, i dont see how we narrow it to solicitation. You file that customer. Your honor it is crime in the United States following removal for example so someone who is residing in the United States after previously been removed is not entitled to be here would be violating. Okay so what you think of that . Are you willing to accept that or not . What we do is we take the professors brief, and we say that the statute under constitutional pressure, is limited to instances where all the qualifications youve given and there are several there. There the main one is it is limited to solicitation of a crime. So it is only in the instance that there is a repeat and the person has to know it. And the person is doing it and repeat several times or twice to the United States and then what you just said. Entering several times you put that into it, and does the government except that customer. That would be an alternative in my mind that that would apply a need forget the statute. Your honor, we prefer that to the alternative of the ninth circuits novel validation. But i dont think that remedy is necessary. Im in a make two points. One about your parade portables and the one about First Amendment law. Whats actually is the ninth circuits novel interpretation of the statute. No one has interpreted it that way before. If you look at the brief the activities they are complaining about are one of which there openly, publicly, starkly, and currently continue to engage. As a matter First Amendment law, the other hand i dont think there is any reason to restrict sadistic criminal activity. If you look at the underlying that he cites under the brief, he makes quite clear, think is on the first page of his article, that this Court Description of the unprotected category of statutes im sorry the unprotected speech of speech that is intended to induce and commence illegal activity, which is how williams describes it, applies to activity thats either civilly or criminally. Dont say that. We couldnt even find a case. We couldnt find a case where course that make the huge difference, but we cant find a case for solicitation of x is held to be lawful rather than unconstitutional. Were x is not a crime. Let me give you a few examples. The court is use the example of a business who is out in front of it in a white applicant sign. Which is facilitating her soliciting civil prohibition against racial did discrimination in hiring. Theres also others that are cited in the Pittsburgh Press case both uphold. If you say that approach, i see that approach parade then all the questions asked have become relevant. And indeed, it is the land lady who says to the person you always have a place here. Knowing that that person is illegally in the United States. Or you could list universities, church groups, you name it, sanctuary cities, where they are trying perhaps whatever they are trying to do. But it wouldnt be tough to turn it over to the prosecutors and they can use it as threats. You turn it on all of these things that are in the briefs is horrible. Okay your interpretation would introduce them in reality because youve had to made a lot of distinctions. If i write all these distinctions into an opinion i am certainly have left out something. Your honor i think theres a reason we havent seen that in the many decades by the hundred 50 years in a statute like this is been on the books. A reason why they cant document the insistence of it. And a reason why their advocacy groups engage daily in the very activities they claim are chill. Where exactly do you think encourage means . Is it your position that speech alone can never constitute a violation of the statute, that there always has to be conduct in addition to speech customer. No your honor, and has a meaning thats drawn from turn additional criminal complicity law. Its a very common word. What does that mean, specifically what does that mean in a statute. In this statute is not entirely clear whether encourage is the one that covers solicitation or if its the one that covers complicity. I would actually, if i could prefer to take the two. Take them together fine paid what assuming . We think it means you have to substantially participate in the activity as something that the defendant wishes to bring about or to succeed. Thats aiding and abetting. Its different from aiding and abetting and i think three distinct ways. This is said in our brief its on page 457 the specific words that a criminal complicity statute uses can have some effect on how its interpreted. In the particular subset it covers. I think here congresses focus on the wards encouraged and induced mean three things. First about has to be that something the defendant actually wants to bring about or wants to succeed. I dont think you could be indifferent about encouraging or inducing. Second, it has to be something that the alien is aware of. Under normally aiding and abetting law you can aid and abet if you use those words you can aid and abet without the principal knowing about it if the murderer is about to shoot somebody and i unload the victims gun before the murderer gets their name doesnt know i did it. I am still in nadir and abettor. And the third thing, we think it requires some participation. For the reason that is you cant really encourage we been consistent about this in the proceedings below two. That you cant really encourage or induce someone in a diminished way. Has to be something that really does make the activity more likely to succeed or likely to occur. Sifted defendant just says well i encourage you to stay here, that might not be enough . But if the defendant says it ten times in a forceful voice, thou be a violation . I do think that more abstract asportation is really going to satisfy this particular statute. One additional reason why we think some substantial participation is required, is because its coming in clause four of a five clause statute. If you look at clauses one through three which is the other types of substantive conduct here. All of them require some substantial participation. What you mean by substantial participation customer guide and will he take that from your brief i did not take that from where thats coming from. And again what justice said is you really should stay here, here are the ten reasons why, and repeats that and repeats that. And its very definitely encouraging and inducing a person to stay in this country. Does that count as substantial participation . Or is there some nonspeech conduct that has to be added to the mix . Well, your honor, i think there are occasions in criminal law where words can constitute aiding and abetting. I think that is the same is true, under the statute. If the court were to have a problem with that, it could either be addressed as challenges the chief justices mentioned or, we would prefer to the ninth circuit remedy where it says it has to be an interpretation says it has to be accompanied by some conduct. See mick mr. Fagan, i just want to give you a shout before your time is up. I take your point there, such as it is. Two things, normally the criminal law when we in secondary liability build teach avoid avoid this First Amendment, we as justice suggested dont allow parchment first speech greater than the underlying conduct itself. That seems to be of basic First Amendment value. So why do we do about the fact that most applications, maybe not all, but most here of the underlying conduct will be civilly punished. And here you wish to criminally spanish the speech. Number two we normally require the aider or better secondary liable person to have a purpose shared with the defendant. The same purpose. And here the government, as i understand argue there is no mens rea required to prove this violation or very minimal one. Your honor below we said menswear willfully would require some purpose having specifically in mind to violate the laws. We do think this requires the same mens rea that the court describe in rosemont where they said participation all this would extend to reckless disregard, would satisfy the normal. Thats what im getting at if recklessness is good enough, i could be in speech if it gets beyond the specific and conduct, specifically how the exploitation has to be that i could be reckless in my speech and encouraging someone. And wind up a federal criminal even though the underlying is civil. Is that the underlying . Their reckless disregard as to be regard to the alien status. I am not recklessly indifferent to my granddaughters status and im recklessly and exhorting her and whatever level is specifically required, but i have no intention of violating the immigration laws. The underlying conduct for which she can be punished as merely civil. Then what . Your honor, to parts of that. First of all, we dont think of this is reckless encouragement or inducement. As i was it splinting we think the words encouragement and inducement, in themselves carry a meaning that you have to once the unlawful venture to occur or succeed. Im wondering here, mr. Fagan at the end of it all, just to cut to the church, does the government think that the commonlaw principles of secondary liability that normally try this secondary liability from extending too far inform the First Amendment analysis here . Or would just have us blow past all of this guidepost question work. Your honor would you think the statute should be interpreted in conformity with the normal criminal law and principles of accomplice liability and solicitation that the court has long recognized. Do you agree or not . Your honor i do not agree, we do not agree with the professor suggested in his brief that this needs to be limited to criminal activity. Again if you look at the article, that he cites in his brief, and has some of the same examples that i was just using. I dont know where the professor got the idea, but there are situations in which a person in which the commission of the offense that is encourage, is not criminal because of the vulnerable position of the person who is engaging and that act. But it doesnt necessarily follow to encouraging the person to do that and not be made criminal. I think that is right if i could quickly answer. For example you can decide to make prosecution up civil events instilled criminally punished. Thank you counsel. Mr. Fleming question work. Mr. Chief Justice Emmett please the court. I began to two points. First congress means what it says. This position does not mention solicitation, doesnt mention aiding and abetting. Congress knows they can use as when they went to the words they use are much broader encourage and induce news together cover every form of influence and persuasion as was said in the electrical workers cases. Falsity is not an element nor is truth a defense. Even accurate advice, encouraging someone to stay as band. And as a result this law makes a felon of the teacher who said to an undocumented student that she should stay and pursue her education. That makes a felon of a pastor who says undocumented worker that they could stay and freely exercise their religion. Its a doctor talk to an undocumented patient to stay for medical treatment ended the government has still denied and makes a felon of a lawyer who advises an undocumented client that her best route to lawful status is to remain physically present in the nine states. So the statute is read as written, which we think it should be, it is substantially overbroad. The second point however and not as effective in this question. Even where this court to rewrite this law is a solicitation provision comment we dont think it can, it would still be overbroad and that is because there is no historical tradition going back to 1791 or sense, supporting a categorical exclusion from the First Amendment for solicitation of noncriminal conduct. All of the governments commonlaw examples going back to sir edward coke concern matthew hale, all involve solicitation of crime for Justice Breyers question. Explains it explains why that is the case. Because solicitation offenses fall within the traditional exception of speech integral to a crime. There is no dispute however, that nothing my client did, encouraged or even solicited anyone to commit a crime. So justice breyer, where the court to read the statute in the way your honor is suggested, although i dont think thats a fair reading of what congress did. If the court were to rewrite it that way the judgment of acquittal would still have to be affirmed because there is no suggestion that any of my clients the people she incurred were ever encouraged to commit a crime. On this point. Was there anything in the statute, the earlier parts of the statute 12 and three. Is there anything that she could have been convicted of when she was taking peoples money and doing nothing for them. To answer the question and then i will answer the premise. To answer the question, no. Provisions one, two, and three of 1324 a1, a1 a, do not prohibit my clients conduct. However the falsity aspect built into your question was the basis of the governments mail fraud prosecution. One thing i would like to correct what mr. Fagan said is a mail fraud prosecution does not require that a male be fraudulent. Just requires a fraudulent scheme where there is use of the mail that is incident to the scheme. Thats how this case was charge. She is not accused of putting something in the mail that was fraudulent. The misrepresentations that work queues were oral misrepresentations. So whether the fraud is supposedly written or oral, as long as there is no mailing, which in connection with immigration almost always will be because applications are filed with the government either by mail or use of the wire of the telephone or the internet. Any actual fraudulent scheme can be readily prosecuted and is readily prosecute by the federal government. There is one counts, five counts, two were knocked out by the ninth circuit judge. Three remaining two were mail fraud what was the other . There were three people or three noncitizens who were offered as potential victims. One did not testify at trial. So after that one person both the mail fraud in the immigration encouragement count were thrown out. She was convicted of two counts of mail fraud and two counts of the other and they two tax accounts she pled. Its an interesting point and i went to give you this example and get your reaction to it. There is a teenager who has been very seriously bullied and is very depressed and is thinking of committing suicide. The teenager has a gun in his hand, he calls up the one person he thanks is his friend eddie says im thinking of killing myself. And the person on the other end of the line says youve said this before, im tired of hearing this from you you never follow through, your coward. Why dont you just do it. I encourage you to pull the trigger. Now is that protected by the First Amendment . Is that speech protected by the First Amendment . Attempting to commit suicide is not a crime. I dont think it would be protected. Why would that be . Doesnt that defeat the argument that you can never someone can never be convicted of speech that encourages an activity that is not criminal. Site meant of suicide would fall within the exception. Exciting imminent harm and lawlessness. A common law, suicide was a crime. To the framers may very well have considered that aiding and abetting suicide was in fact, not something that was being protected. Its not a crime today. Its not today. Why does this not qualify . Why does it not customer. Why would encouraging someone to remain in the country illegally not qualify customer. I dont think thats an argument that government is making, and i think for good reason. Brandenburg usually only allows incitement to mediate lalas activity and violent lawless activity. [inaudible] that would be a limitation, but certainly the unlawfulness here is imminent. In fact the unlawfulness exists, prior to the speech and exists a nano second after the speech ended. So it is imminent. Thats another distinction from the suicide case is going to get you. Most state laws prohibit the solicitation of suicide have a causation requirement. That is the connection between this patient was going to happen. You have someone whos already here the statute has no causation requirement. Thats is no mens rea requirement. Mr. Fagan stood up and said theyre willing to import when now has to be some requirement to share the goal of it actually happening. That is not how the jury was instructed. Is an auditing someone encouraging someone to do something on the person doing the courage and does not intend for the person to do that thing . Is not built into the concept of so if that was the jury should have been. But the government consistently rejected any type of mens rea except the one those expressly called out of the statute was that the defendant know are recklessly disregard the immigration status of the individual. See max about the reason for reversing the decision for improper instruction to the jury. I dont know its grounds for holding that statute is unconstitutional. Outside the very least if the court were to rewrite the statute, either in the way the government but forwarded to brief or in a way that mr. Fagan is now suggesting for the first time now. The very least need to be a new trial for this new statute. See map before you leave this, i dont know if this can be done. I honestly dont. Thinking of the brief in the rewriting, its violation of law, use a violation of criminal law. All right you have to do that. You imply criminal law. In order to avoid the constitution. Then you have the other restrictions such as mr. Fagan gave and said the reason we rewrite it this way, because maybe the justice examples are right. I dont know all the possibilities there. But the reason we write this way, as we assume that what congress would have preferred to the unconstitutionality of the statute, is the common definition, the common definition and use of the word solicitation. In other words we take the heart of solicitation and read that into congress mind and put in the word criminal. You probably have thought of this, and i am curious to know what your reaction to this is . My reaction, if your honor were to do that my client gets acquitted. As a matter of statutory interpretation i think that is the two far. It would be permissible if congress had written so listen but it didnt. It wrote in courage on Congress Knows a safe solicit what it wants to comment says it in 18. [inaudible] constitutional avoidance only kicks in after all the ordinary analysis of this statute has been exhausted. Either this circumstance, i think every indicator whatsoever Shows Congress meant to do what it said. Which was to ban encouragement which is speech. It is not a narrow solicitation provision its not an aiding and abetting provision we know that not because the word said that but the congress wrote it to paragraphs later using those words specifically prayed we know the aiding and abetting which is to paragraph down applies a section four. Which would mean if we could be aiding and abetting aiding and abetting which is at the very least counterintuitive if not absurd. We also know if you limited to a content based provision, it is now completely redundant of the three provisions before. The government is not pointed to any actual conduct that it would be able to prosecute under a narrowed encouragement provision that it cant already prosecute under other provisions similarly it is not explained what it would do if narrowed that way. Because every example has actual wrongdoing that it would want to punish, it can punish under sections one through three or under the document fraud statute. Or in this case. The statute said aid, abet, or solicit, that would be constitutional . It would not justice kavanaugh, because this civil criminal issue weve been discussing. Conduct that in itself is not criminal lets make no mistake. If we didnt agree with you on that point and said aid, abet, or solicit will then be constitutional . I still dont think it would be. So why not. Because youre talking but a statute that singles out one particular category of civil violations. First civil discrimination liability and why this one and not any other civil which are subject to solicitation or encouragement. Without criminal congress a trip theres no federals solicitation statute, theres only 373 which deals with crimes of violence. Must go back to an example those given earlier by justice buyer. There is a statute what had to do with employers hiring illegal aliens. There is no statute that makes it illegal for the employee for nailing to be employed. So what do you do with that example . Theres a statute that makes it illegal to not use the federal, whatever system, the verification system. But theres no actual law that makes it illegal for an alien to work in the United States. They have to provide a Social Security card and all this other stuff. Those acts are going to make them criminally liable. But certainly not the act of being employed. Those also fall under the recognized prohibition on offers to engage in cells been banned prehiring some is not protected speech so congress can ban hiring someone who is not lawfully authorized. Is that your answers the prosecution case customer so in some ways yes. Because you can criminal prosecution by you can that is not speech theres a lot of examples of instances where states have made things illegal, and they make it illegal to encourage someone to do something that is not itself illegal. Encouraging a minor to purchase alcohol. Or to consume alcohol, or encourage a person of diminished capacity to engage in some kind of dangerous activities. You are going to do a lot of damage if you accept this distinction that you could never criminalize encouraging a Vulnerable Person to do something that is not itself illegal on or criminal. I dont know of any statute that sweeps as broadly as this one. The liquor laws and government sites are not framed in terms of aiding and abetting the minors conduct. There is a separate prohibition on furnishing alcohol to a minor. That is an act, that is conduct that is not speech. Of course estate can make it illegal. It could also make it illegal aiding and abetting the furnishing of the conduct of the alcohol. So 23yearold buys alkyl for a minor, the liquor store attendant who sells alcohol knowing is going to the minor, is aiding and abetting that conduct. But no one, no statute that i know ms. Freeman turns of aiding and abetting the noncriminal conduct of the minor. One more question. Something seems unusual about your argument. Usually in the freespeech case the defendant has engaged in speech. And the defendant say steven f my speech is not protected, i can assert free speech of other people. But here, your client was not prosecuted for engaging in speech. She was prosecuted for encouragement through conduct. See if somebody had didnt engage in speech all, making freespeech cases claims it could be asserted by others people. The overbreadth is a strong doctrine, but are there other cases where this has happened . And if not why should be extended into this new area customer so i think the best example is Company Versus cincinnati that was a challenge were ordinary prohibited being on the streets in cincinnati engaging in conduct. It is not clear what mr. Coates had done. The record for the court did not show it was. And this court recognized that the ordinance could have prohibited all manner prohibited conduct like blocking traffic. It nonetheless found the ordinance to be unconstitutional broad because it was directed to substantial speech. This is same case, we do not need to show it was protected speech if the statute, as it plainly does, sweeps within its substantial amount of protected speech when compared to the low legitimate. [inaudible] what to do about the fact that prosecutions of the kind that you talk about. Theres action no requirement of the case, but there is a view that there has to be a realistic risk of a statute that is overbroad being applied to the protected activity. So where does the realistic risk come from in the absence of actual prosecution that you can point to and say that went wrong . I would like to point to the henderson case not to clarify a statement that mr. Fagan made about it. One of the cases in boston, where henderson was prosecuted and one of the theories, an independent theory of liability, was that she gave advice to her undocumented housekeeper. If you stay here they will evaporate in the District Courts opinion on 200 page says alternative theory of criminal liability. Its not just hiring the person, it was also the advice that was given. That was why the district judge engage in the colloquy with a hypothetical about the lawyer. It was because the prosecution. I take the point of broadening out a little bit in terms of your answer. He said okay theres not zero theres one customer. Theres one that we know. So in terms of the others i think your honor said this but i will reinforce it, which is i dont think this court has ever required a certain number of actual prosecutions. The overbreadth doctrine is triggered by the substantial sweep of the statute, caring within its and ban on protected speech. The fact that government is careful enough, usually not to charge it in those cases, does not take away the fact that wrist having this be substantially paid mr. Fagan said people are already making a speech in the band. Thats not relevant either when this court decided Steven Scates appointed to hundreds of hunting websites and hunting magazines that contain depictions of animal cruelty that fell within the band. That was not a weakness of the challenge question at that a strength of the challenge. It shows it was not fanciful or hypothetical. Is ashley happening part i point out this statute historically was not used very much, but the government has recently made a focus of enforcement, the religious Organization Makes this point on page 30. It is also something that they are using as a basis for investigation of u. S. Citizens for their prayer, their speech, their legal advice. And so even though in the past there may not have been that many uses of the statute, one can expect this Court Upholds the statute it will continue to be threatened and use, whether its ultimately used is not matter because the First Amendment does not require us to rely on the grace of the executive branch. Go back for one Second Period im taking in your answer to what i asked before. Imagine this one opinion the government wants this to be interpreted as a solicitation statute. So be it. We insert the word now. Two, solicitation has some rules around it. One was what course which said, you dont punish a criminal of that which isnt. But there might be exceptions to that. General rule, with possible exceptions, to it has to be eminence, three it has to be very specific and there could be some others. Now, it does require us to add one sentence. We interpreted as Congress Picking up the view solicitation just the common definition of solicitation. Not including the exception et cetera. Because this is a common kind of thing. Thats it thats a question. Because thats whats floating around in my mind. Statement i think your honor youd have to ask one more sentence was a judgment below is affirmed. If you add that since we would be fine with it with one exception. The notion that there might be exception to the rule that solicitation has to be limited to solicitation of criminal conduct with specific intent on the part of the defendant that the conduct be committed. Would we have to get that passed by the senate and house . Laugh mark and then signed by the president before we could put that change the statute . Absolutely chief justice the fact that you would need to do that for it to be constitutional is a good indication that congress did not mean for the statute to be read that way. Which is why we think the easier opinion to write is an opinion that says we look at the text, look at the context, and there is nothing in the subsection for that suggest that congressmen to the kind of limited statute adjusters. Would you talk about that generally . We obviously like to save statutes rather than kill statutes. So what can we do consistent with our own ruling consistent with the Understanding Congress role is different. When is it possible to narrow statutes without being subject to the critique where we are rewriting them. And is it possible this case . I dont think its possible in this case because all the textural indicators points in the direction of the interpretation that i have been advocating in the courtship. I think is a general matter, this court interpret statute it doesnt rewrite them. If there is an interpretation of the statute as a whole, i dont mean just a single word, certainly encouraged to mean things with a very broad. Unless is a suggestion that congress meant to adopted narrow interpretation, here there is no textural indication that i dont think thats permissible. Then we would never narrow it because she would always say well just go with what the words the statute mean. No,. What can you do to pick up on the point what can you do to narrowly construct. Give a broad term if read literally, would be broad. When can you narrow . Is a Court Setting clark versus martinez the Court Applies all the standard not just interpreting a particular word but looking at how the context, the commonlaw background of which congress legislates looking at the overall structure of the statute. Looking at legislative history sometimes. When all that is been exhausted, if the court still thanks that its reasonably susceptible to different meanings than constitutional avoidance has some force. You look at the one that avoids a constitution. When you do all that you have a interpretations you dont get to the constitutional avoidance. Thats the problem. The problem is can you read the statute to be not the best interpretation, but the second best so as to save the statute and not opine too forcefully on the First Amendment limits when you have to. Often one can do that. This is not a case in which i think you can. But im not here to suggest constitutional avoidance never works. It does. But the first thing one has to do in the court has been clear about this, is read the statute and apply the standard tools. And when you read this there isnt much objection on the other side, but when you read the words, you look at the fact that congress uses aiding and abetting and soliciting other provisions when it used to references doctrines. When you look at the facts that the statute under the governments reading would be completely redundant of Everything Else that comes before and swallowed it all out. Like the court said its not a plausible reading and the government is given no persuasive account of what this provision will be doing if read their way. When youre left with that, youre saying what are we doing it in turning this into a solicitation statute other than rewriting and putting in a statute that congress has re passed if it wished. I will point out the second constitutional avoidance is a discussion were having this morning which is it doesnt actually avoid the problem. Because if all youre doing is changing the verb from encouraging to solicit you are simply creating a brandnew First Amendment exclusion by creating a statute that prohibits encouraging or soliciting noncriminal conduct. Which weve never seen a single statute like that before. Mr. Fleming can i take you back to a question i asked before when you gave me the answer that coates is a case that falls within the category that i mentioned . You said we did note coates was doing. But actually the opinions as coates was a student involved in the demonstration and the other appellants were pickets involved in the labor dispute. That is expressive conduct at the very least. So i ask you again, if you had a case in which a person who did not engage in speech is able to make a freespeech overbreadth argument . Coates may have been involved but im not sure what the court knew and i think theres a footnote that said it wasnt clear what he was doing. I think thats the best example. That said, one of the cornerstones of the overbreadth doctrine is as long as you are charged under the provision, which my client clearly was, and she herself by the way, the indicted conduct was the sending of a retainer of which she agreed to file nonfraudulent application with the government. There is no suggestion that anything she did was actually fraudulent for which the indicted for for these accounts. Those have to do with oral statements. There is an applied freespeech argument made it wasnt with the ninth circuit was presented for it she did engage in speech that was our position. It doesnt matter for purposes the court because this is an overbreadth challenge against the sweep of the statute far beyond any legitimate conduct the government would need to prohibit. Because there are many other statute that prohibit actual conduct and strong doing. If i may, i would just like to point out this is the very unusual statute. If congress wrote a statute that said it is a crime to aid, bent, or solicit certain serious civil offenses, is that law permissible . I would say not without some proof because if you take steven seriously as i think we have to, there would have to be some kind of evidence, the framers at the time there at the First Amendment expected that category of speech to be excluded. Congress then rewrote it to say its a crime to aid and abet or solicit certain offenses and then makes them crimes, youre okay with that obviously. Thats a harder case, gobble up the deal that here but it raises a difficult question which, mr. Fagan for he wisely stayed away from which its hard to tell sometimes a line between protected speech and on protected solicitation. This court said its perfectly okay to say to someone i encourage you to obtain child pornography. Thats protected. Is that enough . We know that can be prohibited , solicitation of minor offenses . I think thats a difficult question, this court doesnt have a lot of solicitation cases on the book. Maybe when they are on is what the decided but thats not today. I would like to be very clear, this is a statute that were uses very broad words. Use them the context was all they had to do is freespeech. The result is vast amounts of truthful and accurate, and heartfelt speech that it could no way relate a much less integral any crime. It is subject to five years in federal prison. I would submit that the First Amendment is wisely designed to protect us from justice kind of law. And we respectfully request that judgment be affirmed. Thank you counsel for ms. Mr. Fagan. Thank you mr. Chief justice. I take the principal submission today that you simply cant read these words to mean anything other than the incredibly broad reading that the ninth circuit were distributed to them. And thats why you cant do constitutional avoidance. That simply not true. As respondent technologist on pages 20 to 21 of her brief, these words can in the context of a criminal complicity provision at least under no no odd have the meeting we are tripping to them today. If they can have that meeting in that context, they can have that meeting in this context. These are not unusual or strange words to use in this context to mean what we are saying that they mean. As he pointed out in our brief, they are commonly used in state statutes, the model penal code even decisions of this court have use them in that way. Used in that way they fill a gap in the statute that includes conduct. For example under clause one, the alien somebody needs to actually bring the alien into the United States so even aiding and abetting, bring into the United States not cover certain kinds of help for aliens to come to the nine states by themselves. Congress was using these words in their normal criminal law meaning because lets not forget, this statute is i was discussing earlier with bret justice breyer, covers the solicitation of a lot of actual criminal conduct. Coming to and entering the United States unlawfully. To the extent it also covers several civil violations for reasons ive discussed, i think this court has recognized in previous cases like the Pittsburgh Press, white africans only example, that congress or other legislature can civilly prescribe speech that for to glissades activities that are civilly prohibited and if that were really protected speech, congress or other legislature could not civilly prescribe it. The reason why i can be civilly prescribed is because it is unprotected speech. If it is unprotected speech it can be subject to criminal prohibition as well. To the extent that the statue may reach the unprotected speech, and can be handled as applied. There is no reason to read this statue is broadly as respondent is contending it needs to be read here and the ninth circuit read it for the very first time. What in reading this statute would give an average person notice . Of all the limitations youre suggesting to us . Because i read encourage or induce an alien to come and to reside in the u. S. Knowing or in reckless disregard of the fact that such coming to entry, or residence is or will be in violation of law. Seems to me, that all the examples that were raised earlier, the hospital thats treating a child illegally with the disease. The church, who provides worship to illegal aliens. All of the other examples on their face to the common reader of those words would be a violation of the statute. I dont think that is the standard this Court Applies of what those words being in the context of criminal law. Again, these are not words that are unique to the statute. If you look at section 13point to, the word encouraging is used as the title of section heading to describe liability. This court used no no odd. It has all sorts of meaning that you are not endorsing. You are saying this is not aiding and abetting, you say this is not solicitation is something else. Where use the principles of solicitation thats directed at large amounts of criminal activity. To inform what these words mean here. I suppose it is possible that someone who is not known how these words are used in the context of solicitation statutes might look at it and might have the reaction that they should be given a different meeting. But i dont think thats a standard this court should apply. Thank you and the case is submitted