mr fleming will speak for us are seven mills is hudson price with pete speak for the next seven minutes mr say he would speak for the next seven i would then take six though i am going to reserve some for my name is mark fleming and i represent the immigrant defense project and the national immigration project the national lawyers guild as mr cook explained the making have divided time but all the me he counsel who will be speaking today are speaking on behalf of all the appellant in united states versus williams one of the examples the supreme court gave of speech protected by the first amendment was the sentence i encourage you to obtain child pornography but the statute issue in this case makes it a federal felony to say i encourage you to remain in this country if the speaker knows that the listener is undocumented of course it remains quite lawful to say to such a person i encourage you to leave this country the first amendment protections are at their strongest when the government criminalizes expression based on content and viewpoint and this provision does exactly that it is not like the conduct based prohibitions elsewhere in the statute nor is it like  actual aiding and abetting provision that figures only two sub paragraphs later rather this provision picks a side in a national debate and criminalizes opposition to the government's desired message that's unconstitutional and the government doesn't have much of an argument on the constitutional merits instead it raises two points first they argue waiver and second they try to perform or they invite the court to perform radical surgery on the statute and neither approach is valid i  as well thank you judge reinhardt i think my colleagues will comment on that and i'd say we haven't briefed it but our position on that is that that additional provision while it affects the penalty that may be make a difference to your argument that you know any statement of uncaught those who brought i don't know if the government has to prove that specific intent i think if if the government wants to get the added sentence the additional penalty it does need to prove that i don't think it changes the fact that the underlying conduct that's prohibited by a a one a four is a viewpoint discriminatory content based regulation of speech because it makes it unlawful to encourage someone else which is an act of speech i would start if the court pleases with the waiver point because it is something that comes up repeatedly in the government's brief and i don't think it should detain the court long so i'd like to just get that out of the way it's very clear at least from my reading of both the motion to dismiss and the opening brief in this court that the defendant did argue that the crime alleged here is based on the content of her speech and it's presumptively invalid in a trigger strict scrutiny whether she used the words content based or viewpoint discriminatory we think is an important and i think of the best authority for that is the citizens united case in the supreme court where the plaintiff had only raised and as applied challenge but the supreme court said that the facial challenge that was eventually the basis of the decision was simply another argument that supported the first amendment claim so well it is certainly a waiver of this waiver put a categorical doctrine or it is not your own discretion area it is that was the second point i was going to make it is a discretionary doctrine and one of the situations in which this court has recognized in the ruiz case for instance that the court can overlook it is when the issue presented is purely one of law and the first nominations we're discussing today certainly quote i think which to view it just as this in the citizens united case the supreme court review the issue plainly as a constitutional matter without regard to the plain error because the first amendment objection had been preserved all the way up as it has been here the main  government offers your honour's on the merits is an effort to rewrite the statute so that it becomes an aiding and abetting provision and that the crime in their view is aiding and abetting an immigration violation we've seen that that's wrong for at least four reasons their position is it's supposedly aiding and abetting a civil immigration violation which is not a crime and that is something that is as far as i know that they don't cite any other provisions comparable to this where congress has criminalized as a felony the aiding and abetting of a civil violation the only site they have for that proposition is a statute from the state of maine about giving alcohol to somebody thing is aiding and abetting just verbiage or does it change the substance of what they said a kind of has to be an actor not just speech but when they quoted what they were saying they seem to be talking about speech they i'm not sure what else i mean they just seem to be ending a lot of so there's a lot in that question to others and i want to try to address all of it so first of all they didn't say it has to be a particular individual they say very carefully a particular alien or aliens so it can be a group i think the only exception they would admit is if it's speech presented some to the general public but i assure you that if any of my clients are giving a presentation to ten or twenty people about understanding their rights i would imagine the government would take the position that that's not to the general public but to a group of people i'm presenting to three judges of the ninth circuit but i'm likewise presenting to to cut you off to another minute thank you your honor i appreciate it all i just want to complete the point about why i think the aiding and abetting analogy doesn't work completely in addition to the point which i endorse that was the premise of judge persons question which is reading in a lot of language that congress just didn't use but also it's important to note that the government itself does not invision this provision acting like an aiding and abetting statute if you have an aiding and abetting statute there has to be some kind of act in further offense that they say it's buried in a footnote but it's footnote three on page nine of the supplemental brief that even a mere offer of assistance is a crime even if no help is actually given that means that a felony here is an aiding or abetting in terms of doing an act it's the speech which is merely giving an offer of assistance also criminal aiding and abetting requires there actually be a principal who commits the offense but the government takes the position that it doesn't matter whether in a violation of the immigration law actually happens all you have to do  good afternoon your honour's may have pieced the court any hudson price on behalf of amicus public counsel there are three points i would like to briefly address this afternoon regarding the statutes over breath first it is substantial second it is incurable and when i address this point i would also like to briefly touch on a question judge burton raised in the last real arguments that went unanswered regarding exactly what intent the statute requires and third the chilling effect of the statute or not only realistic as the supreme court has required they are known so first over breath is substantial this is clear both because the plain meaning of the statute prescribes an alarming amount of protected speech and because the penalties it imposes are severe there are over ten million undocumented immigrants that currently reside in the united states every day they interact with members of their communities not just attorneys but doctors social workers teachers neighbors nurses who risk felony prosecution and five to ten years in federal prison for speech that although perfectly true has the effect of encouraging an undocumented immigrant to continue to reside here for example under the plain meaning of the statute a teacher cannot tell it would be unlawful for a teacher to tell a parent the public school cannot refuse years anyway so stay here well then it must be imminent it must be there must be an imminence requirement there as well and how do you imminently continue to reside here there's no real i mean it doesn't make sense how can you immediately get someone to continue to reside in the united states brandenburg requires that there be both an imminent it's a specific intent that someone engages in a certain object advocacy and it's certainly not a problem that brandon berger none of those cases deal with with nine criminal acts certainly but isn't that the real the core of the problem here that people ordinarily with regard to non criminal acts people can make decisions whether to comply or not and take the consequences but if you are if you're a business person and you say you know if you fire this pressure you to be in violation of title seven and they say i'm willing to take the chance because you know i  emphasize that the construction that the government proposes itself does not resolve the statute as my colleague mr fleming began to touch on first they themselves have not been able to come up with a consistent construction of the statute in their initial brief the government took the position that this court had already just tournaments in u s beef that encourage should be interpreted literally to mean and they quoted that u s b thumb to mean to inspire with courage spirit or hope citing that affirmatively they determined that government itself cites the henderson case for the proposition that this only touches on nom de minimus acts but the henderson case itself the court described the encouragement as de minimus so this is all at the discretion of the prosecutor what is considered the minimalist and what is not similarly the government in that same tastes and i'm i'm quoting and this is why this case is of particular concern to myself or my colleagues for an attorney doesn't matter whether it's for commercial purposes or not that speech is protected so whether or not it's for commercial purposes does not address the result the first amendment issue is not commercial speech in any thanks to stop motion exactly as i propose a question exactly o and pushes unbacked presented immigrants into the arms of unscrupulous immigration consultants like the kind of government professes to be going after today those who are not going to be deterred because of a law like this so the chilling effects not only decrease protected speech it increases bad faith fraudulence speech which is and to remind the court as judge burton point out last the last of the arguments fraud is nowhere in the text of this act statute and the and the government's asking you to read all  please the court thank you for inviting the federal defender organizations to comment on a statute that has real world and immediate effects on our staffs and our potential clients encourage and to do section of this of thirteen twenty four's unconstitutionally vague because it has to indefinite a description of a crime the word encourage appears in other criminal statutory construction to give it meaning here we have a statute with no definitional sections there not using any kinds of qualifications a very expansive words induce or encourage and there's no specified rea here with the government has done is gone from its opening brief it says hey this is a simple brief this is simple statute easy to decide what's just go to the dictionary for what's encouraged and now in the extremely broad so now we have an extremely broad statute and we have individual ice agents in in los angeles in montana in seattle and portland deciding oh is meaning in abetting our accomplice type statute i'm unaware of it being used in a way that interview where it is isolated as it is here with only one other word that is also in that is also subject to very broad interpretation under the dictionary and this court's own adoption of dictionary definitions so it's coupling with other types of status where it includes  specific aiding and abetting that type of thing where it is given context by in the statute perhaps but in this situation we have a stand alone a stand alone that is extraordinarily broad said it only applies to like  words that of the operative words are so broad that it covers it gives to the individual prosecutors and the individual law enforcement too much discretion to decide about what constitutes a crime and then once that cost it's a crime is so broad then you have the chilling effect where people are going to be afraid of doing what they need to do in terms of for example lawyers and investigators who represent undocumented folks who are in contact with friends family employers supporters and they have to be constantly on guard for whether they are committing a federal crime that will subject them to years in prison stigma and at best if they have to fight their way out of it it means that they're going to be  burton for a very substantial time this is an extremely difficult type of overbred that that combines with the vagueness that means the statute should be sadistic and i would like prosecution of immigration lawyers for advising illegal aliens regarding the circumstances under which they may perform adjustment of status maybe here in l a we have somebody who's going to be reasonable about a prosecution here's a government representation in court to a judge bring that type of situation up and that's what i do want to quickly respond to the this is the course that is subsection four the fact that there is a sentencing enhancement is irrelevant to a discriminatory reason so if you had the coats case where they said it's they because it's we don't know what annoying means if you had a and has been for money or for discrimination that would make it irrelevant to the fact that the underlying crime the end knowing was overly vague thank you talking about limitations on what a person can do to assist an alien in filing an i one forty petition or labor certification but we do have evidence in this record that the in two thousand and two and the labor certification was approved what the government is doing is taking that she was convicted to fraud separately separately and that's the two thousand and two period in two thousand seven she is a labor certification is obtained for each of the aliens the employer says and it's the employer's application for the i won forty i want to take the you want any advice you can go to a lawyer you can ask your employer the testimony as there were no communications in two thousand and seven in regard to the i one forty or a link between the alien the single day charged is the day each alien in one case the employer also signed the retainer agreement the dated charge and it's not a continuing of fans is not even the day that you have a completed contract so what is what is the encourage him in an inducement here even if you put the government's clause on it of the substantial act that's not the minutes and is an  affirmative that the affirmative that is sending a forum on the behalf of the employer if they wish to do it too i will agree to be retained to file that petition that's the conduct of what happened five years earlier is not the conduct of the new boss as mr saidee said the government putting on this comes nine years after the charges offense of two thousand and seven is never the government's whole position in front of the judge why it was this is a unique case i called it a test case and then they said well it's covered because she had told them that they could work or they had a chance to get a green card when they won currently eligible five years earlier and i kept trying to point out how does that relate to what's happening five years later especially since in the same applications and there in the exhibits and volume six of my x serves an additional piece of paper talked about we're going to give you one more minute and then additional information was presented that you may not be eligible in the charts that are submitted of this part of the exhibit and th judge white referred to you might not be eligible for those if there is not a change in the law and that could take five years or more so what is the affirmative act that substantial and not the ministry did and how was she back in two thousand encouragement doesn't require that it's it's an additional element to get the increased offense but any lawyer still and i say to get any lawyer immigration consulting or anybody else charitable organization whether being retained for financial gain or not is in fear of prosecution under the statute and the limitations of government propose don't cover that and protect that and i don't think it's within the scope of the statute nor has anybody like my client ever been unfair notice especially since it was also shown in in trial  good afternoon may it please the court lights a collar on behalf of the united states i'd like to begin by briefly addressing the waiver point and then i'll move on to talk about what the government believes encourage means in this statute and why it does not render the statute and constitutionally overbroad on the waiver point that the question the fundamental question that the court supplemental order asks is whether the statute is overbroad under the first amendment  or fake the fake i believe the vagueness issue has had standing problems because the defendant can only raise vagueness as to her and her vague sense argument is very weak but let me just talk first about the overbroad issue on the over breath issue the defendant and at no point in the district court or in this court has ever raised a first amendment over breath argument to the contrary the argument that offended presented to this current court the very first argument in his brief was that the statute at issue was exceptionally narrow it was so narrow that it only applies to fraud schemes against the government the amethi have now come in and said this statute is exceptionally  defendant's argument is fundamental inconsistent with over breath and we believe for that reason that this is just the wrong vehicle in which to consider and over breath argument the over breath argument has been waived by the defendant and is inconsistent with the with the arguments that he's raised before the court there's also the issue of the enhancement the fact that to convict her of the crimes she was charged with the government needed to prove that  consequential to me aside from whether it actually matters that and there is a financial for purposes leaving that aside the basic statute applies whether there is or isn't  commercial hook right that's true and so therefore it needs a uniform interpretation so whatever remains it doesn't mean something different depending on whether there is a risk to commercial yes but for purposes of first amendment analysis it can matter whether you have a purpose a private financial gain can matter for first amendment analysis and that is why it's would be more appropriate to consider these over breath arguments in the context of a case that didn't involve that pro for example under the alvarez case if you engage in you can engage in false beach that is protected under the first amendment but it is done for a purpose of commercial advantage of for private financial gain it's fraud and it's not protected under the first amendment it's also possible that if you have if you have and even if you don't litigate it was fresh and that's what's strange about this case there's no doubt that what she did is i suppose a crime but that isn't this crime that's the problem well it can be this crime i mean fraudulent schemes are at the core of what it means to encourage or and do something more why does it matter and it doesn't have any connection in my mind that if you're encouraging somebody whether you're doing it to form or in telling them to help them has anything to do with whether you're encouraging them but it's one way by which someone can encourage let me move on oh it's not really that it's really  they're encouraging them why does the motive why in order for them but they encouraging us into folding well in this in this case the encouraging was to get people to pay her two hundred dollars a applied to sin and exhibit and in response to that the district court said that argument doesn't work because i'm promising someone a green heart claiming that you have a path to a green card is powerful encouraging anyone would know that that's green card they're not encouraging them to stay they wouldn't be they wouldn't be encouraging them under the statute don't be a crime under the statute to stay illegal people to stay  status cancellation from mobile whatever if you feeling with a if somebody comes to see you and says i'm here illegally should i go back or is there something you can do for me and he says well there's can do and the person still a legal dollar staying here and they still have a twenty percent or maybe less chance to actually getting any of that and the invites may well be that you will you will hold off the deportation for five or six years even if you eventually lose but i would i would say not under the a combination of the intent element that this court has applied to the statute and the cannot case if if you read doctor who merely advises a patient that medical marijuana might be beneficial has not doesn't have an attempt to violate it hasn't aided and abetted any subsequent violation of the drug laws by the by this court upheld an injunction saying that you couldn't investigate doctors you could investigate them if they were engaging in aiding and abetting but merely advising a patient about the availability of medical marijuana and explained to them that you think that it would  at the last arc and if you just go in and talk to a lawyer and you say well you know i'm here illegally what do you think and the lawyer says well you know my my advice is that they're not likely to come after you and i think you want to  i still don't think under under a combination of cannot and the requirement that this court has imposed that the defendant intend to promote of violation of immigration laws that that would be prosecutable well w help you with your symptoms that that is not that doesn't demonstrate the kind of intent to aid and abet in a violation of the law yes but would allow that sentence was somebody the lawyer presumably  is not effective well it's an effective small percentage of the time meanwhile he's here illegally and he's being encouraged to stay to let the process play out even if it doesn't work because in the meanwhile he stay here and be able to continue to support us that that doesn't come within the government's understanding because it doesn't provide the kind of  assistance that we believe that the term encourage applies this is this statute or the language encouraging in two states to one nine hundred fifty two and no cases ever been brought under this no court has ever found that the government could bring a case that simply involves services to you while you are here including allowing you to live in this apartment which isn't registered remind them well i think the question of whether allowing somebody to live in your apartment would be  sufficient as a kind of inducement to remain is is a tricky one there is a seventh circuit case that by judge posner that held that just allowing someone to live in your apartment a woman left and harboring isn't encouraging right but i think i can't i don't think the analysis would be any different it's judge posner held that allowing someone to stay in your apartment for two years was and was insufficient to constitute a harboring and unfortunately we don't have to impose them anymore nobody but i think that the question that you're right heart was saying and i think it's a good idea if you stay here i encourage you to do that that's a perfectly good use of the word encourage why should we think it's not the use of the word encourage and distraction because i think in the context of this statute when you look at this subsection of thirty twenty four and you compare it to the other subsections of thirteen twenty four what you see is that the statute is aimed at actions at action and actually it cuts least arguably cuts in the other direction because you all the actions are still yarn distraction what is it that we're talking about it here with words that don't sound like you're talking about action others and things that aren't actions i think want one meaning of encourage is to help cases that have been decided and all of those cases look at the question of whether what the defendant do was substantial enough to assist that's that was the case i mean we've been told that a prosecutor in the case of massachusetts told the court that exactly the hypotheticals we've been coming up with do violate the statue well they weren't exactly hypotheticals because there are two things about henderson first of all in henderson the defendant had employed the alien so it was a mixture of employment and s requirement that i'm mentioning the government filed a notice of appeal which it ultimately ultimately dismissed and ultimately dismissed the entire case so i don't think you can draw any lessons from pender said about other manned mission the language is open to that williams case that's the case that had to do with transactions and child pornography and there was an overbroad argument on that and that was the one of those cases where you had a string of verbs and one of them was promote it was unlawful to promote child pornography the supreme court said in the context of that case promote could mean a lot of things sure it has a number of different meanings but it doesn't have to struggle as it only has two words encourage trying to say paul have the same problem i mean we're taking the most likely meaning of encourage encourage i don't i assisting or offering to assist someone suffices and it doesn't you don't have to also prove that they actually do remain in the united states so it's slightly different from aiding and abetting but this is a call to solicitation now just involves saying you know why don't you do that and where is aiding and abetting involves actually providing some kind of assistance this court has a wealth of cases that establish that aiding and abetting criminal violations are not protected speech cases involving for example someone who hyped up a list of instructions on how to how to make illegal drugs that is not protected speech or someone and just seminars in which they explain to you how to defraud the united states on your taxes that's not protected speech so to the extent that the statute is limited to aiding and abetting violations of law in the united states it's  not trench on protected speech now there's the point that judge person made and that the defendants made that you can violate the provision remain in the united states without without engaging in a crime and in that in apply there's no doubt that it applies and i'm not sure what you mean by it applies to this statute definitely applies to non criminal yes in our view in our view and i think emma key agree with us you have to be here in violation of law and some people are here in violation of the law and that's and you would not support a limitation that took that out i don't and i'd like to point out that that limitation is not just in this in this provision but it's also in two and three right and i think we don't support  limitation that takes that out so let me let me explain why first of all i think that the plain error standard clearly applies here this is an over breath argument that wasn't raised before and i think i think that if you look at the williams case and read it discussion of pittsburgh press together those two cases make clear that that if you aid and abet civil violations that conduct is not protected speech in pittsburgh press the underlying misconduct was sex discrimination in employment and the newspaper was aiding and abetting the sex discrimination in employment by publishing advertisements for employment that had female and male c the court considered first whether that was commercial speech but then pittsburgh press said well we don't think that this should be treated as commercial speech we think it should be treated as regular speech and the court said regardless it doesn't matter whether you tweeted us commercial so and so pittsburgh press was saying you should decide central hudson you should give more protection to commercial speech in fact they were saying you should give the sink and the supreme court said we don't need to decide that because this isn't protected at all relevant because of it what if you pittsburgh press said it doesn't matter whether it's commercial speech or not put that to incite this is an offer to engage in an illegal transaction and that speech is not protected and then if you go look at williams the number one case that williams relies on is pittsburgh press williams specifically says that offers to engage in illegal transactions not criminal transactions but illegal transactions have no protection under the first amendment and the case that it cites in support of that is pittsburgh press and if you look at the drugs and in a legal or illegal transaction and it's it's not a transaction if somebody gives somebody advice no but it's the same pittsburgh press didn't actually involve the transaction either what it involves  right was was the newspaper aiding and abetting the employer's illegal employment discrimination so the employer was engaging in civil misconduct and the newspaper was aiding and abetting and the supreme court said that's not protected whether it's commercial side or not commercial speech because you can't as you can't assist in this illegal transaction which was a simple transaction which was which was simply a lawful and then if you go look at williams williams involved child child pornography so the underlying misconduct was criminal but williams specifically used this office to engage in illegal transactions and the reason why they do that is because they're relying a pittsburgh press which w misconduct so if you read those two cases together i think they clearly demonstrate that offers or aiding and abetting or offering to engage in illegal trade transactions even if they are civil is unprotected activity under continue engaging in illegal activity but it's not itself transactional and i think i think they're equivalent aiding and abetting an illegal transaction and offering  was doing there was a regulation that said it's unlawful to assist in sex discrimination and what the newspaper was doing was assisting the employer in sex discrimination i think the offer language has come in because williams itself involved offers with child pornography but the fundamental principle is that whether you whether you're offering to do it or whether you're assisting in doing it there is no distinction between cases where the underlying  was a case involving a similar immigration statute and this is the language is somewhat different but it has encouraged it was anyone who knowingly encouraged induced assisted aided abetted any other alien but it has the encouraging laughed at this court in about whether someone could properly be rendered in admissible for coming to the border with an alien concealed in the car and the person said i didn't do anything i'm just their right person to conceal in my car i didn't do anything and this court said yes that's not sufficient under the statute because it requires affirmative acts of assistance and the same is true of the vast majority of cases actually interpreting the statute this is not something that we pulled out of a hat this is the way we have always charge someone said earlier that you had eight different things you're writing to the stash my understanding is a you're hitting your century ending at some kind of an act instead of speech requirement meaning this notion that it has to be law you will see that our interpretation of what it means to encourage and induce is the way we have charged this statute and the way the courts have understood it the vast majority of cases interpreting this statute define encouraged to mean to help or to assist unconstitutional if that language sweeps too broadly and we think it does this court should simply say so it's simply confined this to the statute to the to the core that the government has always charged and that the cases have always  acknowledged which is assisting and helping or in the case of missing ending smith appearing to assist or help in order to induce someone to remain in the united states you mean by that that speech alone is not enough or so it should mean by and that help me can't do it just space by getting up and i mean we have various examples of the university president gets up and says well do everything we can to help you stay here that can't be a crime and you know well i but i doubt that they i don't know enough about the programs to say but i doubt that they have programs that are lower than it was somebody else but it's because that they're they're undocumented aliens that they're waving it for them but there are as we said in our brief if you're offering charity or you're offering assistance to people on a on a generalized basis then then that doesn't constitute aiding me i'm going to give free legal advice to anybody who's being  their own awful lot of people are in trouble well i'm not sure i don't know that there are charities out there that are offering their services only to people who are here illegally well but we will not help you if you are here legally if you're following the law or get it where you are only  a mean for example there are groups that go to detention centers i mean they can be nice to the prosecutors have some idea of what's actually out there there are organizations who purpose is to provide legal assistance to people in detention with the government is at right now trying to deport that is what they do right and they go in there and they don't charge them and they go in there and they give them advice and some of the vice might well be at the kind i was saying before that is some of them well i think i'd have to know more about that case but let me let me say that if the court thinks there are problems relating to legal advice then the then the proper result here would be to create some kind of limited that there are a number of groups that do provide and encourage people to stay in the united states even though they overstay that they haven't committed a crime but they're here i think i think that the problem would arise only if they were providing substantial assistance of this efficient nature that would actually make a difference in whether someone stayed and they did that only to people who were here illegally  and didn't offer it to other people they say i have a program exclusively for you just because you're here illegally million this other centers actually but as long as it includes them but there was a well i think it does because services  groups but they believe they also have a heart for homeless people and others who are pursed or who are of some kind of disadvantage and one of those groups they feel are the people who have overstayed well i don't think those examples probably don't satisfy the intent requirement that this court put forth in the ocean and that is that they would have to any prosecution would have to show that that was done by the university with an intent to cause the person to remain here illegally well it's done because they want to help the rain here and they said quite openly that the universities and a lot of people don't know whether it's a good thing for them to stay here or to leave and maybe not be able to come back for twenty years to get on another list and a lot of people think that just and want to encourage them to stay here encourages the word because that's what encourage means to me i mean i must say that the whole idea of taking a word his primary meaning to most average people is encourage means i urge you to do something i i think you ought to do it that's what encourage is the basic meaning of it you can average person and her i think i think in the criminal context it may be different when you use the word encourage in fact particularly in next to the word induce and in a in a statute like this that's talking about you know have the subsection one two and three all of which involve conduct and actions i think it's appropriate to assign a different meaning the same way in williams the supreme court assigned to the word promote you might think promote means to to speak well off it carefully doesn't mean that i don't think that's a problem but if the court thinks that it's a problem the proper solution is to tell it's to write an opinion that explains what encourage means in this circumstance the court doesn't over breath is a is strong medicine is the supreme court has said in the court does have a duty to avoid striking a statute down on over breath grounds when it could when it can target it in such a way that the statute is constitutional and there is no question that the that the taken no when your system adjusts the statute does not require that it has to be as we say ninety minutes by which i mean it has to be capable of influencing the person's actions and it doesn't have to influence but it doesn't have to influence although certainly not under encourage i think there is case law that suggests that the word induce actually requires that someone do something i think encouraged is not there's case law that says that induce does this court in the case  called which involved a statute that involved inducing minors to engage in sexual activity interpreted the word induce to not require that someone actually do something but there are some cases suggesting that induce does require that but i don't think encourage the government's argument that their their interpretation of this rule which is subjective is based on a series of eight textual limitations that appear nowhere in the text or legislative history of the statute while counsel cited the law correctly it bears literally no relation to the actual text of the statute which is predicated entirely on two verbs and as the court has noticed these two verbs include encouragement not only of criminal activity but civil activity i think the first and most important point to know is that the government appears to have settled on an eating abetting theory under hornbook law in this circuit aiding and abetting requires a completed crime as counsel just told this court the government's interpretation requires neither a crime nor a completion of any kind so it is fundamentally in apas it as a doctrine to apply to the statute if that weren't enough it's also clear that this court has stated in cases like sanchez vargas that age on the one congressional tent that is clear behind subsection a one is that they should there should not be redundant charges under the identify the kind of conduct that might be included in an aiding and abetting rationale that is criminal that is completed and is not totally and wholly redundant to the other subsections here it simply doesn't representation and i think it bears repeating that it is the government's burden to demonstrate that this is a narrowly tailored law because it's a content based criminal poor vision on speech you know where i mean for example the supreme court  has shown because i'm not i think if it wasn't threatening to be chilling speech maybe we would do this i mean it might make more sense in some ways there's but it would take six or seven different sexes i think that's exactly right and as mr fleming began with we're talking about radical surgery and i think unlike say the skilling case if we look at other cases where the supreme court has addressed overbroad laws impacting  speech there are two themes that emerge number one the court has a duty to consider the chill on third parties not before the court in this case and although defendant here did absolutely brief and raise the first amendment issues a mickey are here collectively to tell you that they are objective lee chilled by the breath of this law in providing counsel to people in sneered in a matter not only of immense political importance and debate in the country  today that's true and i think all of the counsel in an enemy here are here to ensure that we can do the duty without running afoul of a felony prosecution and land in the pen for five to ten years and have a first i mean there was that those two things that anything like we're afraid of is happening or would happen yes your honor well first of all i think it is important to highlight the actual government position the henderson case which i think was not totally accurately represented during this argument the government did explicitly i am reading from the court's opinion takes the position that giving illegal indians advice to remain in the united states whether satis is disputing constitutes funniest conduct the government made the explicit argument separately or together the speech activity was itself enough to satisfy the criminal probation separately i would point the court to the government's opening brief in this case where it wrote and i quote the theory of liability against missing smith was that she quote inspired hope and quote or quote influence the position and quote of her clients that's on the government's opening brief and on page twenty three so not only is the government's documents with the government she may have done so but of course your honor that requirement of assistance of an actual act outside of speech appears nowhere in the statute and i think the government's changing position not only in this case but in the various cases where they have very vehemently asserted the right to use this crime against speech i would also combine that with the amicus curiae brief filed by the city of france in san francisco noting that city officials have been threatened by d o and the court was having none of it fortunately but what this amounts to is an argument by the government that we rely on their prosecutorial discretion in applying the statute that is infallibly what the supreme court has said in cases involving speech the government and the constitution cannot do that the constitution does not permit for example in the stevens case the court was very sensitive not only to the chill on the parties but on the fact that the over breath actually directly caused that chill and refused judge first on like you mentioned in skilling to rewrite the statute in part for that reason right because the statute on the books broadly included a lot of protected speech  application to actual criminal activity that could be prescribed and we were dealing with verbs that judge reiner as you eloquently and i think in common sense stated we're dealing with verbs that every person believes on first blush  speech encourage induce the courts have a long list of interpreting those statutes and the only cases in which those words have been found to have stand alone valence or when they are in a list of verbs that gives this court context on how to interpret that consistent with the legislative history here there is no such scaffolding and judge for is on i see my time is up by if i might i'd like to add one point to a question that's really that i believe went on answered which is you asked if there were cases that injunction that prevented the national organization from women from encouraging or inducing trespass and the court said that was an intolerable limitation on speech and here we're talking about an area that is not simply criminal but includes civil violations which is an inherently fluid in complex status which this panel knows as well as anyone on the planet the idea that we rely on the government's noblesse oblige not to bring charges against those who express their opinions about a matter of immense public crn or seek to aid or advocate for those within their own realm of duty is astounding and if there is no case in the supreme court that would support