Into the Breach: The Ninth Circuit Rides Again!

By Dan Cadman on September 21, 2017

A few days ago, Politico published a piece by Josh Gerstein exposing the latest in novel legal theories from those jocose judicial jokesters at the Ninth Circuit Court of Appeals, one which had slipped my attention.

Last April 18, the circuit court heard oral arguments on appeal by an individual who was convicted of inducing several aliens to stay in the United States illegally. The provision of law used to convict was a portion of the same law that covers smuggling, transporting, and harboring or shielding illegal aliens from detection: 8 U.S.C. Section 1324. The particular clause at play prohibits "encourag[ing] or inducing an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law".

Exactly five months to the day after oral argument, the court entered an order, "inviting" the "Federal Defender Organizations of the Ninth Circuit (as a group), and the Immigrant Defense Project and the National Immigration Project of the National Lawyers Guild to file amicus [friend of the court] briefs" on, among other things, whether the law was either unconstitutionally broad or vague, or whether it infringes on a person's First Amendment free speech rights.

Note that the organizations specifically invited to submit briefs on those subjects are all tilted toward the defendant and toward open borders and immigrant advocacy. Being in a liberal (pardon the turn of phrase) mood, the court showed its magnanimity by adding that, "This order shall not preclude any other interested organizations or groups from filing amicus or amici briefs on either side." Such generosity of spirit!

I'm a simple kind of guy. If it's unconstitutionally vague to incite someone to enter or reside in the United States illegally, or if it in some way infringes on the free speech rights of the inciter, then does that mean the same would apply to anyone who incites a riot? How about inciting someone to murder? Would appealing convictions for those crimes result in similar invitations for amicus briefs?

It seems to me that the threshold is pretty clear. When you move people to act in illegal ways, then haven't you crossed the line from exercising your right to free speech and instead become principal to a crime? But, as I said, I'm a simple kind of guy.