United States v. Sineneng-Smith

No. 19-67 - Argued February 25, 2020
At Issue

Whether the federal criminal prohibition against encouraging or inducing illegal immigration for commercial advantage or private financial gain is facially unconstitutional.

Background and Case Commentary

The opinion in this case was unusual because, rather than addressing the merits of the presented issues, the Supreme Court reprimanded the Ninth Circuit panel for reaching out to decide a question that the respondent had not raised.  Writing for a unanimous Court, Justice Ginsburg held that the Ninth Circuit abused its discretion by drastically departing from the principle of party presentation.

This outcome is frustrating for several reasons.  First, by reaching a decision that was unrelated to the parties’ arguments, the Court engaged in the very type of conduct for which it was reprimanding the Ninth Circuit.  Moreover, when deciding Citizens United v. FEC in 2010, the Supreme Court itself reached out and raised a new issue for the parties to brief after oral argument was over.  Finally, and most relevant here, none of the justices asked Mr. Fleming, Ms. Sineneng-Smith’s attorney, a single question that directly pertained to what became their unanimous holding.

Such a question might have read: “Counsel, prior to the extraordinary action of the Ninth Circuit in taking control of this case from the lawyers, had your client ever raised the overbreadth issue in either the District Court or at the first oral argument in the 9th Circuit? Why should we shift the focus of this case to protecting third persons when you never raised an “other-regarding” argument until being forced into it by the 9th Circuit?”

Mr. Fleming did an excellent job arguing for Ms. Sineneng-Smith and, without a question such as the hypothetical inquiry I posed above, he could not have known in advance how the Court would end up deciding this case.  However, Justice Alito posed one question that, with the benefit of hindsight, provided a narrow opportunity for Mr. Fleming to address the unexpectedly dispositive issue.  Therefore, in my answer below, in addition to addressing Justice Alito’s mischaracterization of Ms. Sineneng-Smith’s speech as conduct, I also explain why it was appropriate for her to raise and for the Court to address the overbreadth issue in this case.

United States v. Sineneng-Smith on Oyez: https://www.oyez.org/cases/2019/19-67

Key Questions from Oral Argument

Justice Alito: One more -- one more question that -- about something that seems unusual about your overbreadth argument. Usually, in a free speech overbreadth 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, your client was not prosecuted for engaging in speech. She was prosecuted for encouragement through conduct. And 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. Now free speech -- overbreadth is a -- is a strong doctrine, but are there other -- are there other cases where this has happened? And if not, why should we extend it into this new area?

Burt Neuborne: Two points, Justice Alito. First, our position is that our client was prosecuted for speech, even if it was unprotected speech. She stood accused of using her “dangerous words” to convince three undocumented noncitizens to stay in the country. In its closing, the government contended that my client had communicated to the undocumented noncitizens: if you “stay [in the country], your patience is going to be rewarded” and “What is she telling her clients through these leniency letters? She’s telling them to stay.” Using words to convince people to do something is speech, and the fact that it may be unprotected does not convert the speech into conduct. Classifying unprotected speech as conduct would eliminate the overbreadth doctrine; the purpose of this doctrine is that it necessarily extends to unprotected speech, enabling more plaintiffs to guard protected speech.

Second, as to whether my client is appropriately situated to raise an overbreadth claim, it is helpful to draw our attention to a different distinction between two types of claims that Ms. Sineneng-Smith raised below: self-regarding and other-regarding. Had she raised only self-regarding claims—claims aimed at protecting her legal rights alone—the nature of her speech as protected or unprotected would be important and a finding of overbreadth might be inappropriate. But Ms. Sineneng-Smith also challenged the unconstitutional vagueness of the statute with an “other-regarding” claim, namely the void for vagueness doctrine, starting in both the District and Circuit courts. The void-for-vagueness doctrine is self-regarding to the extent it claims lack of notice to the defendant; but it is "other-regarding" in seeking to protect third parties from the unquestionable deterrent effect of a vague statute that might be construed to turn speech into a federal felony. Together, the doctrines of vagueness and overbreadth—closely related “other-regarding” challenges—overlap in the First Amendment area. They provide a web of protection for potential and actual third-party speakers who will be deterred from speaking because they risk indictment under unduly broad and/or vague statutes. That is why, relying on her vagueness challenge, the Ninth Circuit recognized that Ms. Sineneng-Smith was raising an “other-regarding” First Amendment challenge; rather than making the mistake of requiring the defendant to invoke a technical set of magic words to raise the overbreadth challenge, the court found the statute at issue to be overbroad. And with respect to vagueness and overbreadth challenges, the exact speech and conduct of the defendant is secondary to concerns about chilling speech. In Smith v. Goguen for example, this Court invalidated vague flag desecration statutes as facially vague even when their application to the defendant’s actions seemed clear. And Coates v. Cincinnati provides the best example in the overbreadth context. In fact, Coates suggests that even if Ms. Sineneng-Smith had engaged in only conduct, and not speech, she could still raise an overbreadth challenge. [Mr. Fleming’s actual answer follows perfectly here, detailing Coates v. Cincinnati].