we'll hear argument this morning please one thousand nine hundred and sixty seven united states versus cementing smith mr fagan thank you mr chief justice and may please the court respondent acknowledges that in the context of a criminal law the terms encourage induce can refer solely to acts that facilitate or solicit unlawful activity that's the meaning that they have in the context of this criminal law there's no reason to reach out and give them a vastly more expansive interpretation simply to strike the statute down prohibitions on facilitating or soliciting unlawful activity have existed since before the founding and are perfectly constitutional interpret in this law to be unconstitutionally overbroad w deviate from that tradition and directly contradict the canon of constitutional avoidance historical understanding and practice confirm that congress didn't 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 th century and this provision has existed in substantially its current form for decades yet respondent hermie key have identified no actual instances in which the statute has been applied protected  st amendment activity or any concrete documented instances of chilling speech the absence of such evidence isn't just happenstance and it doesn't just reflect longstanding executive self restraint it's because this statute isn't aimed at speech and it certainly doesn't encompass substantial amounts of it to the extent that it could be applied to protected speech that can be handled through the normal mechanism of as applied st amendment challenges in those cases this isn't such a case because respondents own activity of fraudulent inducing aliens to pay her for a false path to lawful permanent residence isn't protected by the st amendment and she is not entitled to the last resort remedy of overbred than validation of the th circuit on its own initiative reached out to impose that's particularly so because she was convicted of an offense that required the jury to find beyond a reasonable doubt that she acted for the purpose of financial gain here you would acknowledge though that there are situations in which this would be unconstitutional as applied and i suppose there might be some circumstances where this could be unconstitutional as applied i don't know that anyone's identified any actual such applications that the statute would well even under our reading you know a grandmother whose granddaughter is in the united states illegally tells her granddaughter you know i hope you will stay because you know i will miss you things will not get better if you go back so i encourage you to scape the ground that would be illegal under the statute right it would not be illegal under the statute your honor and here's why st 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 it's one that the criminal law has dealt with for centuries and something that abstract an attenuated is not going to be criminal complicity in particular this statute we think covers a more narrow subset of criminal complicity in solicitation that really requires substantial participation in some unlawful venture or trying to gin up son mom awful venture with the goal that that unlawful venture particular prosecution which was not subject to a st amendment challenge itself was in violation of the st amendment i think which worried judge to seem was a colloquy that occurred 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 a lawyer now again the actions of a lawyer and when those cross the line into criminal complicity or solicitation is also not a problem that is unique to this statute but it is an issue that the criminal law has dealt with for quite a long time one of them in fact i'm sorry what about a charity so a charity provides food to someone who's in the country on wall fully so st of all you and i think i would be conduct rather than speech so i don't think it would factor into the overbright the now the cover of the statute so if a charity were to give out food to people that the charity knew recklessly disregarded were in the country unlawfully on the same terms that gives out food to other needy people then no your honor furthermore i think in interpreting the statute it's important to remember that it's part of the immigration and what if it's not on the same terms it's designed to provide food for people who can't get it elsewhere and they know that the people take human beings that are here on lawful so you know there is no explicit exception in the in the statute for activities that are denominated as charitable so to the extent that a charity were doing something that violated the plain terms of the statute that amounted to giving effectively giving money to people to or something that is the equivalent of money to people with the purpose that those people were reside in the united states unlawfully that might violate the statute but i think another important limiting feature of the statute is to recall that it is part of the immigration nationality act and that statute has to be interpreted as a whole and not to be at war with itself and any u s c six hundred and twenty one the immigration nationality act expressway contemplates that there are going to be circumstances in which public and private benefits may be given to people who are in the united states unlawfully the statute has never been used to my knowledge in response and her miki have not come up with an instance where it's been used to prosecute conduct of the type that you're  kavanagh mr kagan could it has been used according to the amnesty international grief and d h has admitted that there was a watch list at the border in which  charitable organisations people who were giving legal advice at the border all sorts of individuals were being watched be closed they potentially violated this encouraged and provision and in so you're saying there's been no absolute there's been no prosecution except one hundred sit which was a a woman who hired a housekeeper who told you the absolute truth if you go back you you're not if you go if you return to your country you may not absolutely true statement and she was prosecuted for that true statement as an encourage meant an inducement for the housekeeper to stay here but if instances of violence against border patrol agents and suspicions that people were being counseled to lie to immigration officials and i don't think either of those things is protected by the st amendment as to the henderson case i think there are more fact context in that case that was the prosecution and i i will acknowledge the fact case is very close to the line of what we think the statute or one question is this lawyer had since he really believed this 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 couldn't have and i think that goes back to what i was saying to me i just interrupt you one second shark you could you did prosecute her for fraud for fraudulent lee telling her clients that they were eligible for your honor to be to be clear of the defendant henderson was not a lawyer and not i'm not talking about her i'm talking about this case we prosecuted i'm sorry in this particular case yes yes we should is not acting as a lawyer although is a lawyer we prosecuted her for lying to her clients and the jury found the tree knew that she was lying to her clients she lied to her clients that by applying for a particular government program she was putting them on a path to lawful permanent residence she charged each of her clients about six thousand dollars for that she kept sending them letters still problems until me what the different penalty is for those fraud convictions as opposed to a conviction under th statutory range of zero to twenty years of imprisonment and under this statute it was zero to ten i believe because of the financial gain element i would emphasize that the fact that this particular conduct may be covered by two different provisions is st of all happenstance you could have easily given the clients the same advice verbal lee and then it wouldn't be covered by mail for that let's go back to the my original question which let's say this program was a path but they were still here can you read the words of the statute to me that tell me that she wouldn't be prosecuted for encouraging or inducing them to stay where they went for the lawful power so your honor we don't think it is encourage mint or inducement knowing our own reckless disregard of the aliens unlawful status to either advise them of the existence of or help someone to apply for a lawful government program and let me explain why  there st of all an issue like this came up in the united states against williams in which it was the argument was put forth to the court that a statute that criminalized quote presenting child pornography might in theory be applied to handing child pornography over to the police and the court was skeptical of such a novel and quote self defeating interpretation of the statute i think that reflects a broader principle that a statute like this should not lightly be interpreted to apply to conduct that simply participates in a government program that's particularly true because the statute is part of the immigration and nationality immigration nationality  act just prior you said the point which is a good point i want to be sure you can answer to this question though you've read the briefs obviously and they have a long long list of horribles of which are this is just a few you know that you've heard this morning but professor bullocks prove gets rid of most of these horribles in a simple way he lists the conditions under which the court traditionally has said a solicitation of a crime statute is constitutional but the st condition and most important is that what you are soliciting is a crime and it's easy to read this when they use the word war uming read violation of criminal law ok and that we get rid of most of them and i think maybe all i don't know but i can i know that sometimes an alien who enters the united states is committing a crime all right but i can't think of any instance in which residing in the united states is a crime but if you could think of one and might not states following removal for example someone who's residing in the united states after having previously been removed is not entitled to be here would be violated ok suppose what do you think of that are you willing to accept that or not all what we do is we take professor and we say that the statute under constitutional pressure is limited to instances with all the qualifications you give and there are several there but 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 a repeat of coming several times or twice to the united two points one about your parade of horribles and then another one about st amendment law as to the parade of horribles i think what's actually ginned up the parade of horribles here is the th circuit's novel interpretation the statute no one had interpreted that way before and if you look at the amicus briefs the activities that they're complaining about being childer ones in which they openly publicly historically and currently continue to engage as a matter of st amendment law on the other hand i don't think there's any reason to restrict this to criminal activity if you look at the underlying more of the article that professor volokh cites in his brief he makes quite clear i think this is on the st page of his article that this court's  description of the unprotected category of statute sorry the unprotected speech category of speech that is intended to induce and commence illegal activity which is how williams described it applies to activity that's either  is held to be lawful rather than unconstitutional were x is not a crime well let me give you a few examples your honor so this court has recently used the example of a business that has out in front of it a white applicants only take that approach i see the approach then all the questions that have asked become relevant and indeed it is it is the landlady who says to the person you always have a place here knowing that that person is illegally in the united for turn it over to the prosecutors and they can use it as threats it turned out i mean all these things that are in the briefs those horribles ok your interpretation would introduce them in reality because you had to make a lot of distinctions and if i write all these distinctions into an opinion i will be certain i have been left out some well your honor i think there's a reason that we haven't seen that in the many decades indeed about one hundred and fifty years that a statute like this has been on the books and the reason why they can't document any instances of it and the reason why there are miki are all advocacy groups that in gage daily in the very activities they claim are chill which is actually do you think encourage means are there or 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 the speech no your honor there are under we think encourage has a meaning that strong from traditional criminal complicity law and courage is a very common word that is used in criminal complaint does that mean specifically what does it mean in this statute so in this statute we think it it's not entirely clear whether encourage is the one that covers solicitation or it's the one that covers complicity so i would actually if i could prefer to take that to be taken as a guide to what does that mean we think that it means that you have to substantially participate in the clear this is on page four hundred and fifty seven dollars the specific words that a criminal complicity or statute uses can have some effect on how it's interpreted the particular subset of conduct that it covers and i think here congress is focused on the words encourag induced mean three things st of all it has to be something that the defendant actually wants to bring about or wants to succeed i don't think you can be indifferent about encouraging or inducing nd it has to be something that the alien is aware the murderer never knows i did it i'm still an aider and abettor and then the rd thing is we think it requires some substantial amount of participation and the reason for that is that you can't really incur we've been very consistent about this in the proceedings below two that you can't really encourage or induce someone in a de minimus way it has to be something that really does make the activity more likely to succeed or more likely to occur so if the defendants are 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 that would be a violation i don't think that kind of more abstract attenuated xor taishan is really going to  satisfy this particular statute one additional reason why one different reason why we think some substantial participation is required because this is coming in clause forty five clause statute and if you look at clauses one through three which cover the other kinds of substantive conduct here all of them require some sort of substantial participated in the meantime stanch of a decision because i didn't really take that from your briefs a little bit confused as to where that's coming from and again what justice alito said i mean if somebody says i really think you should stay here here are the ten reasons why and repeat that and repeat that and it's very definitely encouraging and inducing a person to stay in this country does that count as substantial participation or is there some non speech conduct that has to be added to the mix well your honor i think there are occasions in the criminal law where words can constitute aiding and abetting and i think that is the same is true under this statute if the court were to have a problem with that it could either be addressed through as applied challenges as the chief justice has mentioned or again we would prefer to the  th circuit's remedy something that says that it has to be a company interpretation says that it has to be accompanied by some conduct mr for i don't mr figure i just want to give you shop for your time's up and i take your point there  such as it is but two things gormley the criminal law when we in secondary liability to avoid the st amendment we as justice prior suggested don't allow punishment for speech greater than the underlying conduct itself that would seem to be a basic st amendment that you so what do we do about the fact that most applications maybe not all but most applications here of the underlying conduct would be civilly punished and here you wish to criminally punish the speech number one and number two normally we require the aider and abettor or secondary liable person to have a purpose shared with the defendant the same purpose and here the government as i understand it argued that there is no mens rea required to prove this violation or a very minimal one when you're on a below we resisted the mens rea of willfully which would require some specific purpose not know some specific having specifically in mind the civilizational violate the laws we do think this requires the same mens re add that this court described in rosemont where the court said that participation in a crime with knowledge of the attendant circumstances although this would extend to reckless disregard of the attendant circumstances would satisfy the normal and that's what i guess i'm getting at is that if you recklessness is good enough so i could be somebody and and wind up of a federal criminal even though the underlying violation is merely civil is that the gist of the government's position here no your honor the reckless disregard has to be in relation to the alien status and i'm  don't recklessly indifferent to my granddaughter's status and i'm recklessly encouraging news exhorting her in whatever level of specificity you require but i have no intention of violating the immigration laws and the underlying conduct that for which she can be punished is merely civil so then what you're on earth to to parts of back st of all wrecked we don't think there's such a thing as reckless encourage mentor guess as i'm wondering here mr figure at the end of it all and just to cut to the chase is does the government think that the common law principles of secondary liability that normally try and prevent the drag net effect of secondary liability from extending too far inform the st amendment analysis here or would you just have us blow past all of those guideposts well your honor we do think the statute should be interpreted in conformity with the normal criminal law principles of accomplice liability and solicitation that the court has long recognized the difference how do you agree with us or both or do you not your honor i do not agree or we do not agree with professor volokh suggestion in his brief that this needs to be limited to criminal activity again if you if you look at the article that person in which the commission of the of the offense that is encouraged is not made criminal because of the vulnerable position of the person who is in gauging in that act but it doesn't necessarily follow that encouraging that person to do that thing cannot be made criminal i think that's exactly right if i could just quickly answer in the very briefly for example you c decide to make prostitution a civil offense and still criminally punish recruiting prostitutes thank you thank you counsel mr chief justice and may please the court begin with two points st congress means what it says this provision doesn't mention solicitation it doesn't mention aiding and abetting congress knows how to use those words when it wants to the words it did use are much broader encourage or induce used together cover every form of influence and persuasion as this court said in the unit with lexical worker's case in this statute falsity is not an element nor is truth a defense even accurate advice encouraging someone to stay is banned and as a result this law makes a felon of a teacher who says to an undocumented student that she should stay and pursue her education that makes a felon of a pastor who says to undocumented worshipers that they can stay and freely exercise their religion and makes a felon of a doctor who encourages an undocumented patient to stay here for medical treatment and as the government has still never denied it 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 united states the statute is read as written which we think it should be it is substantially overbroad the nd point however and i think this was pointed up effectively in justice course such as question is that even where this court to rewrite this law as a solicitation provision and we don't think it can it would still be overbroad and that is because there is no historical tradition going back to seven hundred and ninety one dollars or since supporting a categorical exclusion from the st amendment for solicitation of non criminal conduct all of the government's common law examples going back to sarette word cook and few hail all involve solicitation of crime per justice briar's question professor cole explains this and explains why that's 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 prior were the court to read the statute in the way that your honor suggested although i don't think that's a fair reading of what congress did but 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 that she encouraged were ever encouraged to commit a crime anything that could have been can be when she was taking people's money and doing nothing for them the falsity aspect built into your question was the basis of the government's mail fraud prosecution and one thing i'd like to correct in what mr fagan said is a mail fraud prosecution doesn't require that a mailing be fraudulent it just requires a fraudulent scheme where there is a use of the mail that is incidental to the scheme and that's how this case was charged she wasn't accused of four of putting something in the mail that was fraudulent the misrepresentation the misrepresentations that were accused were oral misrepresentations so whether the fraud is supposedly written or oral as long as there is a mailing which in connection with immigration there will almost always be because applications are filed with the government either by mail or there will be a use of the wires of someone uses the telephone or the internet any male what was the other one there were so there were three people who were three non citizens who were offered as potential victims one did not testify at trial and so as to that one person both  mail fraud and the immigration encourage one count were thrown out she was convicted of two counts of mail fraud and two counts of encouraging for the other two there are also two tax related counts to which she pled on professor of all explained it's an interesting point i want to give you this example and get your reaction to it there's a teenager who's who has been very seriously bullied and is very depressed and is thinking of committing suicide the teenager has a gun in and he calls up the one person he thinks is his friend and he says i'm thinking of killing myself and a person on the other end of the line says you've said this before tired of hearing this from you you never a coward why don't you just do it i encourage you to pull the trigger now is that protected by the st amendment is that speech protected by the st of them in attempting to commit suicide is not a crime so i don't think that would be protected justice alito why what is that why why would that be so doesn't that defeat the argument that you can never someone can never be convicted of speech that encourages an activity that is not criminal no i think i think incitement to suicide would fall within the brandenberg exception you're talking about inciting him an imminent harm an imminent lawlessness also let's remember a common law suicide was a crime and so the framers may well have considered that speech encouraging someone to remain in the country legally not qualify under brendan burke i don't know st of all i don't think that's an argument the government is making and i think for good reason brandenburg generally applies only allows regulation of eminent in fact the unlawfulness exists prior to the speech and exists and that no nd after the speech and so it is imminent i think that's a that's another distinction from the suicide case that i was going to get to is most state laws that prohibit the solicitation of suicide have a causation requirement so there has to actually be some connection between the speech and what's going to happen here if you have someone who's already here this statute has no causation requirement it also has no mens rea a requirement i was astonished that for mr fagan stood up and said that they're willing to import one now that there have to be some requirement that the defendant share the goal of this actually happening or is that's not how this jury was instructed isn't it odd to think of somebody  encouraging somebody to do something if the person who's doing the encouraging does not intend for the person to do that thing isn't that built into the concept of encouragement if it were justice alito then the jury should have been accordingly instructed but the government consistently rejected any kind of mens rea instruction in this case other than the one expressly called out in the statute which is that the defendant know or recklessly disregard the immigration status of the individual were not about might be a reason for reversing the conviction for improper instructions of the jury but i don't know that it's a ground for holding that the statute has a constitutional well i would say at the very least if the court were to rewrite the statute either in the way that government put forward in its constitutional but then you have the other the other restrictions such as mr fagan gave him such as gives and so forth and say the reason we rewrite it this way because it may be that sometimes the justice alito as examples are our right it may well be i don't know all the possibilities there but the reason we write it this way is 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 to say we know the words we take the heart of solicitation read that into congress's mind and put in the word criminal now how far i mean you blind out of court of this and i don't know that i am curious to know what your reaction to it is so my reaction just as priors st of all if if your honor were to do that my client gets acquitted judgment affirmed and i want to be very clear about that as a matter of statutory interpretation i'm not sure that that's i think that's a bridge too far it would be permissible if congress had written solicit but it didn't it wrote encourage or induce and congress knows how to say solicit when it wants to it says it in eighteen u s c three hundred and seventy three and as this court said in court versus martina's constitutional avoidance only kicks in after all the ordinary textual analysis of the statute as a whole has been exhausted and in this circumstance i think every textual indicator whatsoever shows that congress meant to do what it said which was to ban encouragement which is speech it isn't a narrow solicitation provision it isn't an aiding and abetting provision we know that not just because that's what the words say but because congress wrote an aiding and abetting provision just two sub paragraphs later using those words specifically we know that the aiding and abetting provision that one to sub paragraphs down applies to subsection four which would mean if we written to mean solicitation you could be convicted of aiding and abetting solicitation or aiding and abetting aiding and abetting which is at the very least counterintuitive if not absurd and we also know that if you limit it to a conduct based provision it is now completely redundant of the three provisions  immediately before the government has not pointed to any actual conduct that it would be able to prosecute under a narrowed encourage one provision that it can already prosecute under other provisions similarly it has not explained what work this encourage one provision would statute said ada better solicit that would be constitutional it would not judge cavanagh because of the civil criminal issue we've been discussing it would say eight about or solicit conduct that in itself is not criminal and let's make no mistake  violations for so for criminal solicitation liability why this one in particular and not any other civil violations many of which could be are subject to solicitation or encouragement without any criminal consequence many but there is a statute which has to do with employers hiring illegal aliens and there is no statute that makes it illegal for the employee to for an alien to be employed so what do you do with that example there's a statute that makes it illegal not to use the federal would ever system there if a cation system but there's no actual law that makes it illegal for an alien to work in the united states so they can't you know they have to provide a social security card and all of this other stuff and those acts are going to make them criminally liable but certainly not the act the p employee i think those fall under the the also mean in some ways yes i mean i think because you can decriminalize prostitution but you can still criminalize paying someone to engage in sex that's not speech that's there although there are a lot of examples of instances where states have made things illegal make it makes it illegal to encourage somebody to do something that is not itself illegal involving minors encouraging a minor to purchase alcohol to to to purchase alcohol or to consume alcohol or encourage a person of diminished capacity to engage in some kind of dangerous activity you're going to do a lot of damage if you  this distinction that you can never criminalize encouraging a vulnerable person to do something that is not itself illegal on the part of the criminal on the part of the person who's encouraged so i don't know of any statute that swee as broadly as this one the the liquor laws that the government cites actually are not framed in terms of aiding and abetting the minors conduct there's a separate prohibition on furnishing alcohol to a minor that is an act that is conduct that is not speech of course the state can make that illegal it can also make it legal aiding and abetting the furnishing of the conduct of the alcohol so a twenty three year old buys alcohol from a minor the liquor store attendant who sells the alcohol knowing that it's going to the minor is aiding and abetting that conduct but no one  no no statute that i know of is framed in terms of aiding and abetting the non the criminal conduct of the minor let me get one more one more question that about something that seems unusual about your over breath argument usually in the free speech over breath case the defendant has engaged in speech and the defendant says even if my speech is not protected i can assert free speech claims of other people but here are your client was not prosecuted for engaging in speech she was prosecuted for encouraging that through conduct so you have somebody who didn't engage in speech at all making free speech case free speech claims that could be asserted by other people of free speech over breath is of is a strong doctrine but are there other other other cases where this has happened and i not why should we extended into this new area i think the best example is coats versus cincinnati that was an over breath challenge that was the one where the where the ordinance prohibited being on the streets of cincinnati engaging in an in in annoying conduct and it was not clear what mr coats had actually done the record before the court didn't even show that it was and this court recognized that the ordinance could have prohibited all manner of prohibited conduct like walking traffic or littering the streets but it nonetheless found the ordinance to be unconstitutionally over broad because it was directed to a substantial amount of protected speech and this is the same case we do not need to show that the conduct that manning smith engaged in was protected speech if the statute as it plainly does sweeps within its a substantial amount of kind of protected speech when compared to the limited the legitimate sweep of the statute as to what it would what do we do about the fact that there haven't been prosecutions broad of the kind that you talk about when there's obviously no requirement that that be the case but there is a view that there has to be a realistic risk of a statute that's over broad being applied to protected activity so where does the realistic risk come from in the absence of actual prosecutions that you can point of liability was that she gave advice to her undocumented housekeeper if you stay here they won't let you back and the district court's opinion on page two hundred makes very clear that is an alternative theory of criminal liability it's not just hiring the person it was also the advice that was given and that's why the district judge engaged in the colloquy with the hypothetical about the lawyer is because it was a prosecutor ok i'll take the point but broaden it out a little bit in terms of your answers you just said ok there's not zero there is one there's at least one that ok you know of yes that's right and in terms of the others i mean i think you're honor said this but i'll reinforce it to be extent i might which is i don't think this court has ever required a certain number of actual prosecutions the over breath doctor in there is a doctrine is triggered by the substantial sweep of the statute carrying within its ambit a ban on protected speech the fact that the government is careful enough usually not to charge it in those cases does not take away the fact that it risks chilling the speech substantially and mr fagan makes the point in his brief and again this morning that well lots of people are actually making the speech already within the band that's not relevant either when this court decided the stevens case it pointed to hundreds of hunting websites and hunting magazines that contain depictions of animal cruelty that fell within the ban that was not a weakness of the challenge that was a strength of the challenge because it's that the speech was not fanciful or hypothetical but actually what's happening i point out this statute historically was not used very much but that the government has recently made it a focus of enforcement the religious organizations and he makes this point on page thirty and it's also something that as just a sort of myra's question pointed up they are using as a basis for investigation of us citizens for their prayer for their speech and for their legal advice and so even though in the past there may not have been that many uses of the statute one can expect that if this court upholds the statute it will continue to be threatened and used and whether it's ultimately used does not matter because the st amendment does not require us to rely on the grace of the executive branch do what he tells us from the situ go back for one second because taking in your answer to what i asked for but imagine this one says the opinion this the government wants this to be interpreted as a solicitation statute so be it we insert the word now to solicitation has some rules around it one is what does discourse it's that you don't punish as a criminal that which isn't but there might be exceptions to that general rule general rule with possible exceptions to it has to be imminent it's revert three it has to be very specific and there could be some of those now it does require us to add one sentence when we interpret congress picking up in the government's view solicitation the common definition of solicitation not including the exceptions but cetera because this is a common kind of thing you see something like that that's it that's the question because that's what's floating around in my mind i think your honor if you write that opinion you have to add one more sentence which is the judgment below is a front but if you add that sentence we would be fine with it with one exception where one question which is the notion that there might be exceptions to the rule that solicitation has to be limited to a solicitation of criminal conduct with specific intent on the part of the defendant that the criminal conduct to be committed if we would  would would we have to get that passed by the senate and house and signed by the president before we could put that many changes to the statute absolutely mr chief justice and the fact that you would need to do that in order 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 we look at the context and there's nothing in this subsection four that suggests that congress meant the kind of limited statute that justice broad we just talk a little bit about that generally because you know we obviously like to say of statutes rather than to kill statutes so what can we do consistent with our own role and consistent with our understanding that congress  different but when is it possible for us to narrow statutes without being subject to the critique that where rewriting them and is it possible in this case i don't think it's possible in this case because all of the textur indicators point in turn in the direction of the interpretation that i've been advocating in the court below i think as a general matter this court interpret statutes it doesn't rewrite them and if there is an interpretation of the statute as a whole i don't just mean a single word i mean lots of different things but it is very broad and pages and unless there is a suggestion the congress meant to adopt a narrower interpretation here there is no textual indication of that i don't think that's permissible but i would never then we would never do a narrowin would be broad when can you narrow it i think as this court said in court versus martinez what the court does is it applies all the standard rules of textual analysis of statutes not just interpreting a particular word but looking at how it's used in context looking at the common law background against which congress legislates looking at the overall structure of the statute looking at legislative history sometimes when all of that has been exhausted if the court still thinks that the statute is ambiguous and reasonably susceptible to two different meaning then constitutional avoidance has some force and you pick the one that is going to avoid the constitution when you do all that usually have a best interpretation so you don't get to the constitutional voice that's the that's the problem i think the problem is can you read the statute to be not the best not a case in which i think you can but i'm not here to suggest that constitutional avoidance never works it does but the st thing one has to do and the court has been clear about this is read the statute and apply the standard tools and i think when you do this here there isn't and there isn't much objection to this on the other side that when you when you read the words when you look at the fact that congress uses aiding and abetting in soliciting in other provisions when it means to reference those doctrines when you look at the fact that the statute under the government's reading would be completely duplicative and redundant everything else that comes before and swallow it all up like the court said in gates that is not a plausible reading and the government has given no persuasive account of what work this provision would be doing if it read their way when you're left that you're saying what are we doing if we turn this is encouraging and in this in statute into a solicitation statute other than rewriting and putting in a statute that congress could have passed if it wished i'll point out the nd problem with constitutional avoidance is the discussion that we've been having this morning which is it doesn't actually avoid the problem because if all you're doing is change the verb from encourage and induce to solicit you are simply creating a brand new st and then that exclusion by creating a  statute that prohibits encouraging or soliciting non criminal conduct which is we've never seen a single statute like that before it would as point one go ahead when mr foreman could i take you back to the question i asked before when you gave me the answer that codes is a case that falls within the category that i mentioned and you said we didn't know what coach was doing but actually the opinion says coke's was a student involved in the demonstration and the other opponents were pickett's involved in a labor dispute that is expressive conduct at the very least so i ask you again do you have a case in which a person who did not engage in speech is able to make a free speech over breath argument i mean coats may have been involved i'm not sure what the court knew in that if i think there's a footnote in the opinion that says it's not clear exactly what he was doing he was part of the group so i think that's the best example that said one of the cornerstones of the over breath doctrine is that it all is long as you are charged under the provision which my client clearly was and she herself by the way that the indicted conduct was the sending of a retainer in which she agreed to file non fraudulent applications with the government there's no suggestion that anything she did was actually fraudulent in terms of what she was indicted for for these counts the mail fraud counts had to do with oral statements made earlier so there was in fact an as applied free speech argument made it wasn't decided by the th circuit it's not covered by the question presented but she did in gaijin speech that's our position but it doesn't matter for purposes of the question before the court because this is an over breath challenge against the sweep of th far beyond any legitimate conduct that the government would need to prohibit because there are many other statutes that prohibit actual conduct based wrong doing unless if i may i'd just like to point out this is a very unusual step if congress  statute that said it is a crime to aid abet or solicit certain serious civil of fences a b c so the law on its face permissible i would say not without some proof because if we take stephen seriously as i think we have to there would have to be some kind of evidence that the framers at the time that they wrote the st amendment expected that category of speech to be excluded from its and i understand rewrote it to say it was a crime to fagan i think very wisely stayed away from which is it's hard to tell sometimes the line between protected speech and unprotected solicitation remember in williams this court said it's perfectly ok to say to someone i and i encourage you to obtain child pornography right that's protected so is it enough i mean it's solicitation of violent offenses we know that that can be prohibited solicitation of minor offenses i think that's a difficult question this court doesn't have a lot of solicitation cases on the books maybe one day your honour's will have to decide it but that is not today so i would just like to be very clear this is a statute that uses very broad words they use them in the context in which all they can do is ban free speech the result is that vast amounts of truthful and accurate and heartfelt speech that's  no way related and much less integral in the actual crime is subject to five years in federal prison i would submit that the st amendment is wisely designed to protect us from just this kind of a law and we respectfully request that the judgment be affirmed thank you mr chief justice i take person on the principle submission today to be that you simply can't read these words to mean anything other than the incredibly broad reading that respond in the th circuit attribute to  them and that's why you can't do constitutional avoidance but that's simply not true is respondent acknowledges on pages twenty to twenty one of her brief these words can in the context of a criminal complicity provision at least under the have the meaning that we are to be doing to them today and if they can have that meaning in that context they can have that meaning 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 we point out in our brief they are commonly used in state statutes the model penal code the lafave treatise even decisions of this court have used them in that way used in that way they fill a gap in this statute that includes conduct for example under clause one the alien someone needs to actually bring the alien into the united states so even aiding and abetting bringing into the united states wouldn't cover certain kinds of help for aliens who come into the united states by themselves congress was using these words in their normal criminal law meaning because let's not forget this statute as i was discussing earlier with justice prior covers  conduct coming to an interim united states unlawfully to the extent that it also covers certain civil violations for reasons i've discussed i think this court has recognized in previous cases like pittsburgh pressing and and the white applicants only example that congress or another legislature conceivably prescribe speech that facilitates activities that are civil of prohibited and of congress and if that were really protected speech congress or another legislature couldn't even civilly prescribe it the reason why it can be civil we prescribe is because it is unprotected speech and if it's unprotected speech then it can be subject to a criminal prohibition as well this to the extent that the statute may reach some protected speech it can be handled as applied there is no reason to read the statute as broadly as respondent is contending that it needs to be right here and that the th circuit it for the very st time surfing in this case what in reading this statute would give an average person notice of all of the limitations you're suggesting to us because i law seems to me that all of the examples that were raised earlier the the hospital that's treating a child with an illegally present child with a disease the church who provides worship to illegal aliens all of the other examples that were given on their face so the common reader of those words would be a violation of the statu well your honor i don't think that is the standard or i don't think that's the standard this court applies that someone is ignorant of what those words mean in the context of the criminal law again these are not this these are not words that are unique to this statute if you look at the l treatise section thirteen point two the word encouraging is used as the title of section headings to describe accomplice liability this court use the word that you believe that is all sorts of meaning that you're not in criminal activity to inform what these words mean here i i suppose it is possible that someone who does not have any knowledge of how those words are used in the context of facilitation or solicitation statutes might look at it and might have the reaction that they should be given a different meaning but i don't think that's the standard this court should apply thank you thank you console the case is submitted