From left: Alessandra Emini and Stephen A. Miller of Cozen O'Connor.

Laws must be clear to serve their intended purpose. A vague law fails to guide behavior in its intended direction because people cannot discern the parameters of the government's prohibition. Those concerns are especially acute in the context of the First Amendment. Vague laws regulating free expression can have pernicious consequences—they can unnecessarily chill legitimate speech beyond the scope of the intended prohibition, and they can invite retaliation and arbitrary enforcement by government actors.

The Supreme Court recently considered these issues in United States v. Sineneng-Smith. This appeal from the U.S. Court of Appeals for the Ninth Circuit concerned the federal criminal prohibition against encouraging or inducing illegal immigration for commercial advantage or private financial gain. See 8 U.S.C. Section 1324(a)(1)(A)(iv). The Ninth Circuit held that the statute was facially unconstitutional—in other words, that it was so overbroad and vague that it could not be applied to anyone.

The circumstances of this case would suggest that the Supreme Court agreed to hear this case with the intent of reversing the Ninth Circuit. Respondent, Evelyn Sineneng-Smith, tricked undocumented immigrants in the United States into paying for her "consulting services," which consisted of filing applications for permanent-resident status through a discontinued Department of Labor program for which she knew the noncitizens were ineligible. Put bluntly, she ran a scam and stole money from vulnerable people, who remained in the United States, in theory, based on her assurances that they would soon achieve lawful immigration status.

Federal prosecutors charged the respondent with violating 8 USC 1324(a)(1)A)(iv) (imposing criminal liability on 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"). A jury convicted the respondent, and the district judge rejected her post-trial motion for judgment of acquittal based on the unconstitutional application of the statute (i.e., not a facial challenge) to the circumstances of her case. Following oral argument in the Ninth Circuit, the court sua sponte asked the parties to file supplemental briefs addressing whether the statute was facially unconstitutional because it was unconstitutionally overbroad and vague. The court held another oral argument and eventually invalidated Section 1324(a)(1)(A)(iv) because of the vague "encourages and induces" language.

The Supreme Court granted the government's request for review. The government argued that there is a well-established meaning of "encourage" and "induce" in criminal law—namely, the facilitation or solicitation of another person's illegal activity. This regular, long-standing application of these terms erases any supposed vagueness. Even if this reading of the statutory language was not the only reasonable interpretation, the government asked the court to apply the doctrine of constitutional avoidance to "save" the statute—in other words, the court would choose the narrow, permissible construction of the statute and limit the government's ability to enforce it within those parameters.

The respondent rejected the assertion that the statute was salvageable. Citing McLane v. Equal Employment Opportunity Commission (EEOC) (U.S. 2017), the respondent reminded the court that it previously interpreted the terms "encourage" and "induce"—when used together—as covering all forms of persuasion and influence. The respondent further denounced the government's interpretation of the terms within the criminal-law context because the statute is not confined to criminal offenses. Finally, the respondent urged the court not to invoke the canon of constitutional avoidance because doing so would violate other canons of statutory construction, such as rendering the statute redundant of the other provisions of the Immigration and Nationality Act.

The Supreme Court heard oral argument on the case on Feb. 25. The Justices initially focused on the statute's potential to chill free speech. The justices questioned the government about a hypothetical grandmother, who encouraged her granddaughter, an undocumented immigrant, to remain in the United States. The government conceded that the grandmother's speech would not be considered illegal, but the credibility of that assurance eroded when the government later proposed a three-part test to govern application of the broad statutory language: the defendant must want to bring about or succeed in encouraging or inducing the underlying activity; the undocumented immigrant must be aware of the defendant's encouragement or inducement; and the defendant must participate in a substantial way that makes the underlying activity more likely to succeed or occur. Under the government's own three-part test, then, the hypothetical grandmother could be a federal felon.

The government also did not seem to make much progress with its constitutional avoidance argument. Chief Justice John Roberts questioned whether, if the court accepted the government's interpretation of the statutory language, would they "have to get that passed by the Senate and House and then signed by the president before [they] could put that many changes" in? Justice Elena Kagan also asked when does narrowing a statute, under this doctrine, become merely rewriting the law. Regardless, the respondent stipulated that, even if the justices chose the route of constitutional avoidance, the judgment below would be affirmed.

The respondent is not a sympathetic figure, but she is fighting for important principles of First Amendment law. The government's position is also important—statutes should not be declared facially invalid if there are permissible applications (and where a judicial opinion can clarify those boundaries by upholding an as-applied challenge). The court will likely issue its opinion before July 2020.

Stephen A. Miller practices in the commercial litigation group at Cozen O'Connor's Philadelphia office. Prior to joining Cozen O'Connor, he clerked for Justice Antonin Scalia on the U.S. Supreme Court and served as a federal prosecutor for nine years in the Southern District of New York and the Eastern District of Pennsylvania.

Alessandra Emini is an associate attorney at the firm. She received her J.D. and M.B.A. from Pennsylvania State University, and her B.A. from Hood College.