United States v. Evelyn Sineneng-Smith ( 2018 )


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  •                      FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                         No. 15-10614
    Plaintiff-Appellee,
    D.C. No.
    v.                          CR 10-414 RMW
    EVELYN SINENENG-SMITH,
    Defendant-Appellant.                     OPINION
    Appeal from the United States District Court
    for the Northern District of California
    Ronald M. Whyte, Senior District Judge, Presiding
    Argued and Submitted April 18, 2017
    San Francisco, California
    Reargued and Resubmitted February 15, 2018
    Pasadena, California
    Filed December 4, 2018
    Before: A. Wallace Tashima, Marsha S. Berzon,
    and Andrew D. Hurwitz,* Circuit Judges.
    Opinion by Judge Tashima
    *
    Judge Reinhardt, who was originally a member of this panel, died
    after this case was reargued and resubmitted for decision. Judge Hurwitz
    was randomly drawn to replace him. Judge Hurwitz has read the briefs,
    reviewed the record, and watched video recordings of the oral arguments.
    2             UNITED STATES V. SINENENG-SMITH
    SUMMARY**
    Criminal Law
    The panel reversed the district court’s judgment with
    respect to the defendant’s convictions on two counts of
    encouraging and inducing an alien to remain in the United
    States for the purposes of financial gain, in violation of
    8 U.S.C. §§ 1324(a)(1)(A)(iv) & 1324(a)(1)(B)(i); vacated
    the defendant’s sentence; and remanded for resentencing.
    The panel held that subsection (iv) – which permits a
    felony prosecution of any person who “encourages or
    induces” an alien to come to, enter, or reside in the United
    States if the encourager knew, or recklessly disregarded the
    fact that such coming to, entry, or residence is or will be in
    violation of law – is unconstitutionally overbroad in violation
    of the First Amendment because it criminalizes a substantial
    amount of protected expression in relation to its narrow band
    of legitimately prohibited conduct and unprotected
    expression.
    In a concurrently filed memorandum disposition, the
    panel affirmed the judgment with respect to the defendant’s
    convictions on two counts of mail fraud in violation of
    18 U.S.C. § 1341.
    **
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    UNITED STATES V. SINENENG-SMITH               3
    COUNSEL
    Daniel F. Cook (argued), Bodega Bay, California, for
    Defendant-Appellant.
    Susan B. Gray (argued), Assistant United States Attorney;
    J. Douglas Wilson, Chief, Appellate Section; United States
    Attorney’s Office, San Francisco, California; Elizabeth D.
    Collery (argued), Attorney, Criminal Division; John P.
    Cronan, Principal Deputy Assistant Attorney General;
    Kenneth A. Blanco, Acting Assistant Attorney General;
    United States Department of Justice, Washington, D.C.; for
    Plaintiff-Appellee.
    Mark C. Fleming (argued) and Megan E. Barriger, Wilmer
    Cutler Pickering Hale & Dorr LLP, Boston, Massachusetts;
    Beth C. Neitzel, Wilmer Cutler Pickering Hale & Dorr LLP,
    Washington, D.C.; for Amici Curiae Immigrant Defense
    Project, and National Immigration Project of the National
    Lawyers Guild.
    Annie Hudson-Price (argued) and Mark Rosenbaum, Public
    Counsel, Los Angeles, California, for Amicus Curiae Public
    Counsel.
    Stephen R. Sady (argued), Chief Deputy Federal Public
    Defender; Lisa Ma, Research and Writing Attorney, Portland,
    Oregon; Carmen A. Smarandoiu, Assistant Federal Public
    Defender, San Francisco, California; for Amicus Curiae
    Federal Defender Organizations of the Ninth Circuit.
    4          UNITED STATES V. SINENENG-SMITH
    Lee Rowland (argued), Cecillia D. Wang, Anand
    Balakrishnan, ACLU Foundation, New York, New York;
    Christine Patricia Sun, American Civil Liberties Union
    Foundation of Northern California, Inc.; for Amici Curiae
    American Civil Liberties Union, and American Civil
    Liberties Union of Northern California.
    Eugene Volokh, Scott & Cyan Banister First Amendment
    Clinic, UCLA School of Law, Los Angeles, California, as
    Amicus Curiae.
    Elliott Schulder, Tina M. Thomas, Nicole Y. Roberts,
    Covington & Burling LLP, Washington, D.C.; Robin
    Wechkin, Sidley Austin LLP, Seattle, Washington; for
    Amicus Curiae National Association of Criminal Defense
    Lawyers.
    Dennis J. Herrera, City Attorney; Christine Van Aken, Chief
    of Appellate Litigation; Yvonne T. Mere, Chief of Complex
    and Affirmative Litigation; Molly M. Lee and Matthew S.
    Lee, Deputy City Attorneys; Office of the City Attorney, San
    Francisco, California; for Amicus Curiae City and County of
    San Francisco.
    Stephen W. Manning, Innovation Law Lab, Portland, Oregon;
    Kari Hong, Boston College Law School, Newton,
    Massachusetts; for Amici Curiae Oregon Interfaith
    Movement for Immigrant Justice, Causa Immigrant Rights
    Coalition of Oregon, Catholic Charities of Oregon, and
    Immigration Counseling Services of Oregon.
    UNITED STATES V. SINENENG-SMITH                          5
    Emily T. Kuwahara, Crowell & Moring LLP, Los Angeles,
    California; Harry P. Cohen and Gary A. Stahl, Crowell &
    Moring LLP, New York, New York; Noor Taj, Crowell &
    Moring LLP, Washington, D.C.; Niyati Shah, John C. Yang,
    Asian Americans Advancing Justice | AAJC, Washington,
    D.C.; for Amicus Curiae Asian Americans Advancing
    Justice | AAJC.
    OPINION
    TASHIMA, Circuit Judge:
    INTRODUCTION
    Defendant-Appellant Evelyn Sineneng-Smith was
    convicted on two counts of encouraging and inducing an alien
    to remain in the United States for the purposes of financial
    gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) &
    § 1324(a)(1)(B)(i).1 Section 1324(a)(1)(A)(iv) (“Subsection
    (iv)”) permits a felony prosecution of any person who
    “encourages or induces an alien to come to, enter, or reside in
    the United States” if the encourager knew, or recklessly
    disregarded “the fact that such coming to, entry, or residence
    is or will be in violation of law.” We must decide whether
    Subsection (iv) abridges constitutionally-protected speech.
    To answer this question, we must decide what “encourages or
    induces” means.
    1
    Sineneng-Smith was also convicted of two counts of mail fraud in
    violation of 18 U.S.C. § 1341. We affirm those convictions in a separate,
    concurrently filed memorandum disposition.
    6           UNITED STATES V. SINENENG-SMITH
    The parties have widely divergent views about how to
    interpret the statute. Sineneng-Smith and several amici
    contend that encourage and induce carry their plain meaning
    and, therefore, restrict vast swaths of protected expression in
    violation of the First Amendment. The government counters
    that the statute, in context, only prohibits conduct and a
    narrow band of unprotected speech.
    We do not think that any reasonable reading of the statute
    can exclude speech. To conclude otherwise, we would have
    to say that “encourage” does not mean encourage, and that a
    person cannot “induce” another with words. At the very
    least, it is clear that the statute potentially criminalizes the
    simple words – spoken to a son, a wife, a parent, a friend, a
    neighbor, a coworker, a student, a client – “I encourage you
    to stay here.”
    The statute thus criminalizes a substantial amount of
    constitutionally-protected expression. The burden on First
    Amendment rights is intolerable when compared to the
    statute’s legitimate sweep.       Therefore, we hold that
    Subsection (iv) is unconstitutionally overbroad in violation of
    the First Amendment.
    FACTUAL AND PROCEDURAL BACKGROUND
    A. Underlying Facts
    Sineneng-Smith operated an immigration consulting firm
    in San Jose, California. Her clients were mostly natives of
    the Philippines, unlawfully employed in the home health care
    industry in the United States, who sought authorization to
    work and adjustment of status to obtain legal permanent
    residence (green cards). Sineneng-Smith assisted clients with
    UNITED STATES V. SINENENG-SMITH                    7
    applying for a “Labor Certification,” and then for a green
    card. She signed retainer agreements with her clients that
    specified the purpose of the retention as “assisting [the client]
    to obtain permanent residence through Labor Certification.”
    The problem was that the Labor Certification process expired
    on April 30, 2001; aliens who arrived in the United States
    after December 21, 2000, were not eligible to receive
    permanent residence through the program. See Esquivel-
    Garcia v. Holder, 
    593 F.3d 1025
    , 1029 n.1 (9th Cir. 2010).
    Sineneng-Smith knew that the program had expired. She
    nonetheless continued to sign retainer agreements with her
    clients and tell them that they could obtain green cards via
    Labor Certifications. And she also continued to sign new
    retainer agreements purportedly to assist additional clients
    in obtaining Labor Certification. At least two of Sineneng-
    Smith’s clients testified that they would have left the country
    if Sineneng-Smith had told them that they were not eligible
    for permanent residence. Sineneng-Smith’s words and acts
    which allegedly violated the statute were alleged to have
    occurred from 2001 to 2008.
    B. Procedural History
    On July 14, 2010, a grand jury returned a ten-count
    superseding indictment charging Sineneng-Smith with, as
    relevant to this appeal, three counts of violating 8 U.S.C.
    § 1324(a)(1)(A)(iv) & § 1324(a)(1)(B)(i) – encouraging or
    inducing an alien to reside in the country, knowing and in
    reckless disregard of the fact that such residence is in
    violation of the law.
    Before trial, Sineneng-Smith moved to dismiss the
    immigration counts of the superseding indictment. Sineneng-
    Smith argued that: (1) her conduct was not within the scope
    8              UNITED STATES V. SINENENG-SMITH
    of Subsection (iv); (2) Subsection (iv) is impermissibly vague
    under the Fifth Amendment; and (3) Subsection (iv) violates
    the First Amendment because it is a content-based restriction
    on her speech. The district court denied the motion to
    dismiss, but did not explicitly address the First Amendment
    argument.
    After a twelve-day trial, the jury found Sineneng-Smith
    guilty on all three counts of violating Subsection (iv) and
    § 1324(a)(1)(B)(i), and all three counts of mail fraud.
    Sineneng-Smith then moved for a judgment of acquittal
    pursuant to Federal Rule of Criminal Procedure 29(c),
    renewing the arguments from her motion to dismiss and
    contending that the evidence elicited at trial did not support
    the verdicts. The district court concluded that sufficient
    evidence supported the convictions for two of the three
    § 1324 counts and two of the three mail fraud counts.2
    Sineneng-Smith timely appealed, again arguing that the
    charges against her should have been dismissed for the
    reasons asserted in her motion to dismiss, and that the
    evidence did not support the convictions. We first held oral
    argument on April 18, 2017, and submitted the case for
    decision. Subsequent to submission, however, we determined
    that our decision would be significantly aided by further
    briefing. On September 18, 2017, we filed an order inviting
    interested amici to file briefs on the following issues:
    2
    The court sentenced Sineneng-Smith to 18 months on each of the
    remaining counts, to be served concurrently; three years of supervised
    release on the § 1324 and mail fraud counts, and one year of supervised
    release on the filing of false tax returns count, all to run concurrently. She
    was also ordered to pay $43,550 in restitution, a $15,000 fine, and a $600
    special assessment.
    UNITED STATES V. SINENENG-SMITH                          9
    1. Whether the statute of conviction is overbroad or
    likely overbroad under the First Amendment, and if
    so, whether any permissible limiting construction
    would cure the First Amendment problem?
    2. Whether the statute of conviction is void for
    vagueness or likely void for vagueness, either under
    the First Amendment or the Fifth Amendment, and if
    so, whether any permissible limiting construction
    would cure the constitutional vagueness problem?
    3. Whether the statute of conviction contains an implicit
    mens rea element which the Court should enunciate.
    If so: (a) what should that mens rea element be; and
    (b) would such a mens rea element cure any serious
    constitutional problems the Court might determine
    existed?
    We received nine amicus briefs,3 as well as supplemental
    briefs from both Sineneng-Smith and the government. On
    February 15, 2018, we again held oral argument and
    resubmitted the case for decision.
    STANDARD OF REVIEW
    The government urges us to review Sineneng-Smith’s
    First Amendment overbreadth claim for plain error, arguing
    that she waived the issue by not raising it until we requested
    supplemental briefing.
    Although Sineneng-Smith never specifically argued
    overbreadth before our request for supplemental briefing, she
    3
    We thank all amici for their helpful briefs and oral advocacy.
    10          UNITED STATES V. SINENENG-SMITH
    has consistently maintained that a conviction under the statute
    would violate the First Amendment. Sineneng-Smith’s
    motion to dismiss argued that “[t]he crime alleged here is
    rooted in speech content – performing immigration
    consultancy work on behalf of aliens and their employers by
    petitioning the government on their behalf – not in conduct
    lacking any First Amendment protection.” Likewise, her
    opening brief on appeal reasserted a First Amendment
    challenge: “Such communication is ‘pure’ speech entitled to
    the highest level of protection.”
    “Once a federal claim is properly presented, a party can
    make any argument in support of that claim; parties are not
    limited to the precise arguments they made below.” Yee v.
    City of Escondido, 
    503 U.S. 519
    , 534 (1992). Because
    Sineneng-Smith has asserted a First Amendment claim
    throughout the litigation, her overbreadth challenge “is – at
    most – a new argument to support what has been a consistent
    claim.” Citizens United v. FEC, 
    558 U.S. 310
    , 331 (2010)
    (internal quotation marks omitted). We thus conclude that
    she preserved her overbreadth argument, and review it de
    novo.
    ANALYSIS
    The First Amendment dictates that “Congress shall make
    no law . . . abridging the freedom of speech.” “[A] law
    imposing criminal penalties on protected speech is a stark
    example of speech suppression.” Ashcroft v. Free Speech
    Coal., 
    535 U.S. 234
    , 244 (2002).
    Of course, like most constitutional principles, the right to
    free speech “is not absolute.” Ashcroft v. Am. Civil Liberties
    Union, 
    535 U.S. 564
    , 573 (2002). For example, laws or
    UNITED STATES V. SINENENG-SMITH                            11
    policies that target conduct but only incidentally burden
    speech may be valid. See, e.g., Virginia v. Hicks, 
    539 U.S. 113
    , 122–23 (2003). Further, traditional narrow carve-outs
    to the First Amendment, “long familiar to the bar,” allow
    Congress to restrict certain types of speech “including
    obscenity, defamation, fraud, incitement, and speech integral
    to criminal conduct.” United States v. Stevens, 
    559 U.S. 460
    ,
    468 (2010) (internal quotation marks and citations omitted).
    Sineneng-Smith and several amici argue that the statute
    explicitly criminalizes speech through its use of the term
    “encourages or induces,” and that the speech restriction is
    content-based and viewpoint-discriminatory, because it
    criminalizes only speech in support of aliens coming to or
    remaining in the country. Alternatively, Sineneng-Smith
    asserts that even if the statute targets some conduct, it
    sweeps in too much protected speech and is therefore
    unconstitutionally overbroad. The government counters that
    Subsection (iv) should be read as referring only to conduct
    and, to the extent it affects speech, restricts only unprotected
    speech.
    We address those competing constructions below,
    beginning with the topic of overbreadth.4
    4
    We follow the Supreme Court’s lead in assessing the statute’s
    overbreadth before engaging in the strict scrutiny analysis that would
    follow if we concluded that Subsection (iv) was a content-based restriction
    on speech. See 
    Stevens, 559 U.S. at 474
    (recognizing that the statute at
    issue explicitly regulated expression based on content, but analyzing the
    statute for overbreadth rather than for whether it survived strict scrutiny).
    12          UNITED STATES V. SINENENG-SMITH
    I. First Amendment Overbreadth
    Because of the “sensitive nature of protected expression,”
    New York v. Ferber, 
    458 U.S. 747
    , 768 (1982), “[t]he
    Constitution gives significant protection from overbroad laws
    that chill speech within the First Amendment’s vast and
    privileged sphere,” Free Speech 
    Coal., 535 U.S. at 244
    . To
    implement this protection, the general rules governing facial
    attacks on statutes are relaxed under the First Amendment.
    Typically, to succeed on a facial attack, a challenger would
    need “to establish that no set of circumstances exists under
    which [the statute] would be valid, or that the statute lacks
    any plainly legitimate sweep.” 
    Stevens, 559 U.S. at 472
    (internal quotation marks and citations omitted).
    However, “[i]n the First Amendment context . . . a law
    may be invalidated as overbroad if ‘a substantial number of
    its applications are unconstitutional, judged in relation to the
    statute’s plainly legitimate sweep.’” 
    Id. at 473
    (quoting
    Wash. State Grange v. Wash. State Republican Party,
    
    552 U.S. 442
    , 449, n. 6 (2008)). This exception to the typical
    rule is based on the idea that speakers may be chilled from
    expressing themselves if overbroad criminal laws are on the
    books. See 
    Farber, 458 U.S. at 768
    –69 (citing Vill. of
    Schaumburg v. Citizens for a Better Env’t, 
    444 U.S. 620
    , 634
    (1980)). To combat that chilling effect, even a person whose
    activity is clearly not protected may challenge a law as
    overbroad under the First Amendment. See 
    id. To determine
    whether Subsection (iv) is overbroad, we
    must first construe the statute. Next, we must ask whether
    Subsection (iv), as construed, restricts speech and, if so,
    whether that speech is protected. Finally, we must weigh the
    UNITED STATES V. SINENENG-SMITH                         13
    amount of protected speech that the statute restricts against
    the statute’s legitimate sweep.
    Recognizing that striking down a statute as overbroad is
    “strong medicine,” and the justification for facially striking
    down a statute “attenuates as the otherwise unprotected
    behavior that it forbids the State to sanction moves from
    ‘pure speech’ toward conduct,” we conclude that the chilling
    effect of Subsection (iv) is both real and substantial.
    Broadrick v. Oklahoma, 
    413 U.S. 601
    , 615–16 (1973). The
    only reasonable construction of Subsection (iv) restricts a
    substantial amount of protected speech in relation to the
    narrow band of conduct and unprotected expression that the
    statute legitimately prohibits. Therefore, we hold that
    Subsection (iv) is facially invalid.
    A. Construing the Statute
    “The first step in overbreadth analysis is to construe the
    challenged statute; it is impossible to determine whether a
    statute reaches too far without first knowing what the statute
    covers.” United States v. Williams, 
    553 U.S. 285
    , 293 (2008).
    Subsection (iv) reads: “Any person who . . . encourages or
    induces an alien to come to, enter, or reside in the United
    States, knowing or in reckless disregard of the fact that such
    coming to, entry, or residence is or will be in violation of law
    . . . shall be punished as provided in subparagraph (B).”5
    5
    The government argues that the “statute of conviction is not
    8 U.S.C. § 1324(a)(1)(A)(iv), standing alone. Rather, the indictment
    charged and the jury found that Sineneng-Smith acted ‘for the purpose of
    commercial advantage or private financial gain’ under 8 U.S.C.
    § 1324(a)(1)(B)(i) . . . . Accordingly, the ‘statute[s] of conviction’ are
    8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i).” Subsection (B)(i) is a
    commercial enhancement of Subsection (A)(iv). For the purposes of our
    14            UNITED STATES V. SINENENG-SMITH
    Construing the statute also requires us to look beyond the
    plain text of Subsection (iv). See 
    Stevens, 559 U.S. at 474
    .
    Thus, to interpret Subsection (iv), we analyze: the mens rea
    required for conviction; what “encourages or induces” means;
    whether “an alien” limits the scope of the statute; and whether
    “in violation of law” refers to both criminal and civil laws.
    The government contends that a defendant runs afoul of
    Subsection (iv) only when she (1) knowingly undertakes,
    (2) a non-de-minimis, (3) act that, (4) could assist, (5) a
    specific alien (6) in violating, (7) civil or criminal
    immigration laws.
    While we endeavor to “construe[] [a statute] to avoid
    serious constitutional doubts,” we can only do so if the statute
    is “readily susceptible to such a construction.” 
    Stevens, 559 U.S. at 481
    (internal quotation marks and citations omitted).
    “We will not rewrite a law to conform it to constitutional
    requirements, for doing so would constitute a serious invasion
    of the legislative domain, and sharply diminish Congress’
    incentive to draft a narrowly tailored law in the first place.”
    
    Id. (internal quotation
    marks and citations omitted).
    The government’s interpretation of Subsection (iv)
    rewrites the statute. For the following reasons, we hold that
    to violate Subsection (iv), a defendant must knowingly
    encourage or induce a particular alien – or group of aliens –
    overbreadth analysis, the commercial enhancement is irrelevant.
    Subsection (A)(iv) is the predicate criminal act; without the encouraging
    or inducing, Sineneng-Smith could not have been convicted. And, as the
    meaning of § 1324(a)(1)(A)(iv) does not vary depending upon whether the
    financial gain enhancement also applies, the chilling effect of the
    “encourage or induce” statute extends to anyone who engages in behavior
    covered by it, whether for financial gain or not.
    UNITED STATES V. SINENENG-SMITH                  15
    to come to, enter, or reside in the country in reckless
    disregard of whether doing so would constitute a violation of
    the criminal or civil immigration laws on the part of the alien.
    As properly construed, “encourage or induce” can mean
    speech, or conduct, or both, and there is no substantiality or
    causation requirement.
    1. Mens Rea
    We first address what mens rea is required to sustain a
    conviction under Subsection (iv). As an initial matter, the
    most natural reading of Subsection (iv) requires us to break
    it into two prongs for the purposes of determining the
    requisite mens rea: first, the “encourage or induce” prong;
    and, second, the violation of law prong. Subsection (iv) is
    silent about the mens rea required for the encourage prong,
    but explicitly provides that a defendant must “know[] or
    reckless[ly] disregard” the fact that an alien’s “coming to,
    entry, or residence is or will be in violation of law.” 8 U.S.C.
    § 1324(a)(1)(A)(iv).
    a. Mens Rea for “encourage or induce” Prong
    In United States v. Yoshida, the defendant was indicted
    for “knowingly encouraging and inducing” three aliens to
    enter the United States. 
    303 F.3d 1145
    , 1149 (9th Cir. 2002).
    On appeal, Yoshida argued that “there [was] insufficient
    evidence that she . . . knowingly encouraged or induced in
    some way [the aliens’] presence in the United States.” 
    Id. at 1149–50.
    In affirming the conviction, we concluded that “[a]
    number of events revealed at trial creates a series of
    inescapable inferences leading to the rational conclusion that
    Yoshida knowingly ‘encouraged and induced’ [the aliens] to
    enter the United States.” 
    Id. at 1150.
    We repeatedly
    16          UNITED STATES V. SINENENG-SMITH
    emphasized the knowledge requirement. See 
    id. (“The government
    also offered circumstantial evidence that Yoshida
    knowingly encouraged [the aliens] to enter the United
    States”); 
    id. at 1151
    (“a reasonable jury could easily conclude
    that Yoshida knowingly led the aliens to the flight”).
    Therefore, we think it clear that Subsection (iv) has a
    knowledge mens rea for the encourage prong.
    b. Mens Rea for the Violation of Law Prong
    Despite the fact that Subsection (iv) explicitly states that
    a defendant must “know[] or reckless[ly] disregard” the fact
    that an alien’s “coming to, entry, or residence is or will be in
    violation of law,” the government argues that we have
    increased that mens rea requirement to an “intent” to violate
    the immigration laws. We disagree, but recognize that our
    prior cases provide some support for the government’s
    position.
    The government’s argument is based on United States v.
    Nguyen, 
    73 F.3d 887
    (9th Cir. 1995), in which we reviewed
    a conviction under subsection (i) of § 1324(a)(1)(A).
    Subsection (i) criminalizes “bring[ing]” an alien “to the
    United States . . . at a place other than a designated port of
    entry” when the defendant “know[s] that [such] person is an
    alien.” 8 U.S.C. § 1324(a)(1)(A)(i). “Read literally, then, the
    statute criminalizes bringing, purposefully or otherwise, any
    alien, illegal or otherwise, into the country other than at a
    designated port of entry.” 
    Nguyen, 73 F.3d at 890
    . In the
    absence of an explicit mens rea standard, we considered the
    legislative history of the statute and concluded that Congress
    did not intend to “dispense with a mens rea requirement for
    the felony offense.” 
    Id. at 893.
    “Accordingly, we [held] that
    to convict a person of violating [§] 1324(a)(1)(A), the
    UNITED STATES V. SINENENG-SMITH                        17
    government must show that the defendant acted with criminal
    intent.”6 
    Id. Subsequent cases
    adding a mens rea element to the other
    subsections of § 1324(a)(1)(A) adopted Nguyen’s criminal
    intent language. See United States v. Barajas-Montiel,
    
    185 F.3d 947
    , 951–53 (9th Cir. 1999). Central to the
    government’s argument, in Yoshida we stated, “[w]e have
    held that ‘to convict a person of violating section
    1324(a)(1)(A), the government must show that the defendant
    acted with criminal intent, i.e., the intent to violate United
    States immigration laws.’” 
    Yoshida, 303 F.3d at 1149
    (quoting 
    Barajas-Montiel, 185 F.3d at 951
    ).
    However, the passing reference to “criminal intent” in
    Yoshida did not increase the mens rea of the violation of law
    prong to intent. We affirmed Yoshida’s conviction because
    “the jury had ample evidence before it to conclude, beyond a
    reasonable doubt, that Yoshida encouraged the aliens to enter
    the United States, with knowledge or in reckless disregard of
    the fact that the aliens’ entry was in violation of law.” 
    Id. at 1151
    (emphasis added). Not only does Yoshida foreclose the
    government’s argument that we have increased the mens rea
    level of Subsection (iv), it confirms that we have not read out
    of the statute the “reckless disregard” standard that appears
    explicitly in it.
    6
    “Criminal intent” is an amorphous term that can signify different
    levels of culpability. For example, Black’s Law Dictionary defines the
    term as “mens rea,” or “[a]n intent to commit an actus reus without any
    justification, excuse, or other defense.” Intent, Black’s Law Dictionary,
    930–31 (10th ed. 2014). However, Black’s also recognizes that
    sometimes “criminal intent” means “an intent to violate the law, —
    implying a knowledge of the law violated.” 
    Id. (citations omitted).
    18          UNITED STATES V. SINENENG-SMITH
    2. “Encourages or Induces”
    a. Our Construction of “encourage or induce”
    Next, we turn to the meaning of “encourage or induce.”
    As always, we begin with the language of the statute to
    determine whether it has “a plain and unambiguous meaning
    with regard to the particular dispute in the case.” Barnhart v.
    Sigmon Coal Co., 
    534 U.S. 438
    , 450 (2002) (quoting
    Robinson v. Shell Oil Co., 
    519 U.S. 337
    , 340 (1997)). A
    critical dispute in this case is whether, and to what extent, the
    words “encourage and induce” criminalize protected speech.
    We have previously recognized that “encourage” means
    “to inspire with courage, spirit, or hope . . . to spur on . . . to
    give help or patronage to.” United States v. Thum, 
    749 F.3d 1143
    , 1147 (9th Cir. 2014) (alterations in original) (quoting
    United States v. He, 
    245 F.3d 954
    , 960 (7th Cir. 2001)
    (quoting Merriam Webster’s Collegiate Dictionary 381 (10th
    ed. 1996))). This definition is well-accepted. See, e.g.,
    Encourage, Oxford English Dictionary Online (3d ed. 2018)
    (“to inspire with courage, animate, inspirit . . . . [t]o incite,
    induce, instigate”). Similarly, induce means “[t]o lead (a
    person), by persuasion or some influence or motive that acts
    upon the will . . . to lead on, move, influence, prevail upon
    (any one) to do something.” Induce, Oxford English
    Dictionary Online (3d ed. 2018).
    In isolation, “encourage or induce” can encompass both
    speech and conduct. It is indisputable that one can encourage
    or induce with words, or deeds, or both. The dictionary
    definitions do not, however, necessarily resolve the dispute in
    this case. We must also examine the context in which the
    words are used to determine whether we can avoid First
    UNITED STATES V. SINENENG-SMITH                 19
    Amendment concerns. See 
    Williams, 553 U.S. at 294
    –95.
    We look to the principle of noscitur a sociis to determine
    whether the language surrounding “encourage or induce”
    provides those words with a more precise definition. 
    Id. at 294.
    In Williams, the Supreme Court analyzed whether
    18 U.S.C. § 2252A(a)(3)(B)’s prohibition on “advertis[ing],
    promot[ing], present[ing], distribut[ing], or solicit[ing]”
    purported child pornography was overbroad. 
    Id. at 293–94.
    In construing the statute, the Court narrowed the meanings of
    “promotes” and “presents” in light of their neighboring verbs.
    
    Id. at 294.
          The Court reasoned that “advertises,”
    “distributes,” and “solicits” all had an obvious transactional
    connotation: “Advertising, distributing, and soliciting are
    steps taken in the course of an actual or proposed transfer of
    a product.” 
    Id. “Promotes” and
    “presents,” on the other
    hand, are not obviously transactional. In context, however,
    the Supreme Court read them as having a transactional
    meaning as well. 
    Id. at 294–95.
    Thus, the Court interpreted
    “promotes” to mean “recommending purported child
    pornography to another person for his acquisition,” and
    “presents” to “mean[] showing or offering the child
    pornography to another person with a view to his
    acquisition.” 
    Id. at 295.
    By contrast, Subsection (iv) does not have a string of five
    verbs – it is limited to only two: “encourages or induces.”
    Here, the proximity of encourage and induce to one another
    does not aid our analysis. As discussed above, both
    encourage and induce can be applied to speech, conduct, or
    both. Therefore, unlike the string of verbs in Williams,
    neither of these verbs has clear non-speech meanings that
    would inform and limit the other’s meaning. In other words,
    20          UNITED STATES V. SINENENG-SMITH
    when read together, they do not provide a more precise
    definition or one that excludes speech. Nor are the words
    necessarily transactional like those in Williams. Thus, the
    application of noscitur a sociis to the two operative verbs
    here, does not narrow our search; our conclusion that
    Subsection (iv) could cover speech, as well as conduct,
    remains.
    Beyond their immediate neighbors in Subsection (iv),
    encourage and induce also “keep company” with the verbs in
    the other subsections of § 1324(a)(1)(A). The neighboring
    subsections prohibit: (i) “bring[ing]” an alien to the United
    States “at a place other than a designated port of entry;”
    (ii) “transport[ing] or mov[ing]” an alien in furtherance of a
    violation of the immigration laws; and (iii) “conceal[ing],
    harbor[ing], or shield[ing] from detection” an alien in the
    country in violation of the immigration laws. 8 U.S.C.
    § 1324(a)(1)(A)(i), (ii), & (iii). Bringing, transporting,
    moving, concealing, harboring, and shielding all clearly refer
    to some type of action.
    The government contends, in light of these other verbs in
    the other subsections, that “encourage or induce” “should
    likewise be interpreted to require specific actions that
    facilitate an alien’s coming to, entering, or residing in the
    United States illegally. So understood, § 1324(a)(1)(A)[(iv)]
    serves as a ‘catch-all’ provision that covers actions other than
    ‘bringing,’ ‘transporting,’ etc., that might facilitate illegal
    immigration.” (Citation omitted.) Conversely, Amicus
    American Civil Liberties Union contends that subsections
    (i)–(iii) criminalize so much conduct that the only thing left
    to criminalize in Subsection (iv) is pure speech.
    UNITED STATES V. SINENENG-SMITH                    21
    The government’s proposed interpretation of “encourage
    or induce” in the context of §1324(a)(1)(A) is strained.
    While we agree that the statute is intended to restrict the
    facilitation of illegal immigration and that subsections (i)–(iii)
    prohibit specific actions, it does not follow that Subsection
    (iv) covers only actions. Instead, the structure of the section
    lends itself to the more obvious conclusion that the verbs in
    the subsections must mean different things because they form
    the basis of separate charges. See 
    Thum, 749 F.3d at 1146
    –47.
    In § 1324, “Congress created several discrete immigration
    offenses including,” among others, the crimes outlined in
    subsections (a)(1)(A)(i)–(iv). United States v. Lopez,
    
    484 F.3d 1186
    , 1190–91, 1193–94 (9th Cir. 2007) (en banc);
    see 
    Thum, 749 F.3d at 1146
    . We have held that construing
    § 1324(a)(1)(A) “so that effect is given to all its provisions,
    so that no part will be inoperative or superfluous, void or
    insignificant,” requires Subsection (iv) to be read as
    excluding the conduct criminalized in the remaining
    subsections. 
    Thum, 749 F.3d at 1147
    (quoting Corley v.
    United States, 
    556 U.S. 303
    , 314 (2009)). If encouraging or
    inducing cannot mean bringing, transporting, moving,
    concealing, harboring, or shielding, what is left?
    The government offers a few limited examples of other
    actions that could potentially be covered under Subsection
    (iv), but not reached by subsections (i)–(iii). These examples
    include: (1) providing aliens with false documents; (2) selling
    a border-crossing kit to aliens, including a map of “safe
    crossing” points and backpacks filled with equipment
    designed to evade border patrol; (3) duping foreign tourists
    into purchasing a fake “visa extension;” or (4) providing a
    “package deal” to foreign pregnant women who wish to give
    22          UNITED STATES V. SINENENG-SMITH
    birth in the United States that includes a year of room and
    board, a six-month tourist visa, and instructions on how to
    overstay the visa without detection. But we doubt Congress
    intended to limit Subsection (iv) to actions such as these, as
    the provision does not appear necessary to prosecute any of
    these actions. Subsection (i), (iii), and (v)(II), which,
    respectively, restrict bringing, shielding from detection, and
    aiding and abetting the commission of any of these acts,
    cover the examples raised by the government. Additionally,
    8 U.S.C. § 1324c and 18 U.S.C. § 1546 provide broad
    criminal prohibitions against document fraud in violation of
    the immigration laws. These few, unpersuasive examples
    therefore do not convince us that “encourage” and “induce”
    can be read so as not to encompass speech, even though their
    plain meaning dictates otherwise.
    In sum, the structure of the statute, and the other verbs in
    the separate subsections, do not convince us to stray from the
    plain meaning of encourage and induce – that they can mean
    speech, or conduct, or both. Although the “encourage or
    induce” prong in Subsection (iv) may capture some conduct,
    there is no way to get around the fact that the terms also
    plainly refer to First Amendment-protected expression. In
    fact, in Williams, one of the seminal overbreadth cases,
    Justice Scalia used the statement, “I encourage you to obtain
    child pornography” as an example of protected 
    speech. 553 U.S. at 300
    . We see no reason why “I encourage you to
    overstay your visa” would be any different. And interpreting
    “encourage or induce” to exclude such a statement would
    require us to conclude that “encourage” does not mean
    encourage. The subsection is not susceptible to that
    construction.     Subsection (iv), therefore, criminalizes
    encouraging statements like Justice Scalia’s example and
    other similar expression.
    UNITED STATES V. SINENENG-SMITH                    23
    b. Other Courts’ Construction of “encourage or
    induce”
    Only one other Circuit has considered a First
    Amendment overbreadth challenge to Subsection (iv), and
    that was in an unpublished disposition. In United States v.
    Tracy, the defendant “pled guilty to one count of conspiring
    to encourage non-citizens to enter the United States illegally
    . . . but reserved the right to appeal the district court’s denial
    of his motion to dismiss that charge.” 456 F. App’x 267, 268
    (4th Cir. 2011) (per curiam). The Fourth Circuit rejected the
    defendant’s argument “that speech that encourages illegal
    aliens to come to the United States is protected by the First
    Amendment in certain instances.” 
    Id. at 272.
    Instead, the
    court stated “that speech that constitutes criminal aiding and
    abetting does not enjoy the protection of the First
    Amendment,” and concluded that the statute did not prohibit
    a substantial amount of protected speech. 
    Id. (alteration and
    citations omitted). We will address the extent to which
    Subsection (iv) can be read to prohibit only aiding and
    abetting in more detail below, but it is clear that Tracy
    recognized that the subsection reaches some speech. 
    Id. (“[T]here may
    be some instances in which we might find that
    the statute chills protected speech.”).
    Although not addressing Subsection (iv) from a First
    Amendment perspective, other courts have interpreted what
    “encourage or induce” means in the subsection. Somewhat
    recently, we touched upon the issue in Thum. Amici put quite
    a bit of stock in our use of a “broad” definition of
    “encourage” in Thum, but we agree with the government that
    Thum is inconclusive about whether “encourage” (or
    “induce”) includes speech.
    24            UNITED STATES V. SINENENG-SMITH
    In Thum, we considered whether the defendant
    encouraged or induced an alien to reside in the United States
    when the defendant escorted an alien from a fast food
    restaurant near the San Ysidro Port of Entry – on the U.S.
    side of the border – to a nearby vehicle headed 
    north. 749 F.3d at 1144
    –45. In interpreting “encourage,” we relied
    on the general dictionary definition. 
    Id. at 1147.
    We also
    recognized that we “ha[d] previously equated ‘encouraged’
    with ‘helped.’” 
    Id. (citing Yoshida,
    303 F.3d at 1150). But
    the main question in that case was whether the defendant had
    done enough to encourage the alien to reside in the U.S.
    
    Thum, 749 F.3d at 1147
    . On that point, we agreed with the
    defendant that escorting an alien to a van bound for Northern
    California was at most “aid[ing] in the attempted
    transportation of the alien, which would be covered under
    8 U.S.C. § 1324(a)(1)(A)(ii),” and did not “convince the
    illegal alien to stay in this country . . . or . . . facilitate the
    alien’s ability to live in this country indefinitely.” 
    Id. at 1148
    (internal quotation marks and citations omitted). Thum thus
    stands for the proposition that “[e]ncouraging an illegal alien
    to reside in the United States must mean something more than
    merely transporting such an alien within this country.” 
    Id. at 1149.7
    We did not address whether the statute reached
    speech.
    Many other courts have concluded that encourage can
    mean “to help.” See United States v. Lopez, 
    590 F.3d 1238
    ,
    1249–52 (11th Cir. 2009) (upholding a supplemental jury
    7
    Likewise, Yoshida does not aid our analysis. Yoshida, examining
    whether there was sufficient evidence to sustain the defendant’s
    conviction under Subsection (iv), held only that escorting aliens through
    an airport to a United States-bound flight constituted encouragement.
    
    Yoshida, 303 F.3d at 1150
    –51.
    UNITED STATES V. SINENENG-SMITH                 25
    instruction which, in part, defined “encourage” as “to help”);
    United States v. Fujii, 
    301 F.3d 535
    , 540 (7th Cir. 2002); 
    He, 245 F.3d at 957
    –58; United States v. Oloyede, 
    982 F.2d 133
    ,
    135–37 (4th Cir. 1993) (per curiam). However, as mentioned
    above, none of these cases considered a First Amendment
    challenge to Subsection (iv), nor do they foreclose the
    conclusion that “encourage or induce” can mean speech. To
    “help” is not a helpful limitation in terms of excluding
    expression, because speech can help someone decide to enter
    or to reside in the United States.
    Additionally, the government cites out-of-circuit cases for
    the argument that encouraging or inducing “requires
    substantial assistance (or offers of assistance) that the
    defendant expects to make an alien lacking lawful
    immigration status more likely to enter or remain in the
    United States than she otherwise would have been.” For
    example, in DelRio-Mocci v. Connolly Props. Inc., the Third
    Circuit
    read subsection (iv) as prohibiting a person
    from engaging in an affirmative act that
    substantially encourages or induces an alien
    lacking lawful immigration status to come to,
    enter, or reside in the United States where the
    undocumented person otherwise might not
    have done so. Thus, subsection (iv) has the
    distinct character of foreclosing the type of
    substantial assistance that will spur a person
    to commit a violation of immigration law
    where they otherwise might not have.
    
    672 F.3d 241
    , 249 (3d Cir. 2012) (emphasis added). The
    court reasoned that if it interpreted “encourage or induce” too
    26          UNITED STATES V. SINENENG-SMITH
    broadly it would “render subsections (i)–(iii)] redundant or
    superfluous.” 
    Id. The court
    thus read the following elements
    into what constituted encouragement under Subsection (iv):
    it must be (1) an affirmative act that (2) substantially
    encourages (3) an alien lacking lawful immigration status to
    (4) come to, enter, or reside in the United States where (5) the
    undocumented person otherwise might not have done so. 
    Id. At least
    one other court has adopted the Third Circuit’s
    interpretation. See United States v. Henderson, 
    857 F. Supp. 2d
    191, 204–08 (D. Mass. 2012).
    There is a lot to unpack in this interpretation of the
    statute, but at bottom, DelRio-Mocci added an act
    requirement, a substantiality requirement, and a causation
    requirement to the text of Subsection (iv). The Third Circuit
    adopted the substantiality requirement from its “harboring”
    decisions under § 1324(a)(1)(A)(iii), which hold that a
    defendant can only be convicted where his “conduct tend[s]
    to substantially facilitate an alien’s remaining in the United
    States illegally and to prevent government authorities from
    detecting the alien’s unlawful presence.” 
    Id. at 246–48
    (quoting United States v. Ozcelik, 
    527 F.3d 88
    , 97 (3d Cir.
    2008) (internal quotation marks omitted)). The Ninth Circuit,
    however, does not have such a precedent and we do not think
    the statute is reasonably susceptible to this interpretation in
    the absence of statutory text to that effect. See Valle del Sol
    Inc. v. Whiting, 
    732 F.3d 1006
    , 1017 n.9 (9th Cir. 2013)
    (recognizing that the Ninth Circuit broadly defines harboring
    “to mean ‘afford shelter to’”) (quoting United States v. Acosta
    de Evans, 
    531 F.2d 428
    , 430 (9th Cir. 1976)). We therefore
    reject the government’s proposed interpretation that
    “encourage or induce” must mean an act that provides
    substantial assistance (or non-de-minimis help) to an alien for
    entering or remaining in the country.
    UNITED STATES V. SINENENG-SMITH                  27
    We also disagree with the Third Circuit that a causation
    requirement can be read into the statute. On its face “the
    plain language of the statute makes clear that the relevant
    inquiry is the conduct of the defendant,” and not the alien.
    See United States v. Dhingra, 
    371 F.3d 557
    , 561 (9th Cir.
    2004) (rejecting vagueness and overbreadth challenges to
    18 U.S.C. § 2422(b), which prohibits “knowingly
    persuad[ing], induc[ing], entic[ing], or coerc[ing] any
    individual who has not attained the age of 18 years, to engage
    in prostitution or any sexual activity for which any person can
    be charged with a criminal offense”).
    One district court’s struggle to interpret Subsection (iv)
    illustrates our concerns. In Henderson, defendant was
    convicted pursuant to Subsection (iv) because she had
    “employed a person she came to learn was an illegal alien to
    clean her home from time to time and, when asked, advised
    the cleaning lady generally about immigration law practices
    and consequences.” 
    857 F. Supp. 2d
    at 193. Considering a
    post-verdict motion for judgment of acquittal, the district
    court reviewed the “Developing Appellate Case Law” to
    determine the scope of Subsection (iv), and adopted the Third
    Circuit’s test from DelRio-Mocci. 
    Id. at 204,
    208.
    In arguing against the motion, the government took “the
    position that giving illegal aliens advice to remain in the
    United States while their status is disputed constitutes
    felonious conduct under § 1324(a)(1)(A)(iv) because it
    constitutes encouragement or inducement under the statute.”8
    Doubling down, “the government contended that an
    immigration lawyer would be prosecutable for the federal
    8
    The defendant in Henderson does not appear to have made an
    explicit First Amendment argument.
    28          UNITED STATES V. SINENENG-SMITH
    felony created by § 1324(a)(1)(A)(iv) if he advised an illegal
    alien client to remain in the country because, if the alien were
    to leave, the alien could not return to seek adjustment of
    status.” 
    Id. at 203.
    The district court expressed discomfort with the
    government’s position and incredulity that the government
    would continue to pursue the felony prosecution. See 
    id. at 193–94,
    211–14. However, applying the DelRio-Mocci test,
    the district court concluded that “a jury could find that
    [defendant’s] employment together with her [immigration]
    advice could have caused [the alien], or a person in her
    position, to reside here when she otherwise might not have.”
    
    Id. at 208.
    The court denied the motion for acquittal, but
    granted defendant’s motion for a new trial in order to give
    new jury instructions. 
    Id. at 210,
    214.
    Despite Henderson, the government now argues that “[n]o
    reported decision applies Subsection (iv) to efforts to
    persuade, expressions of moral support, or abstract advocacy
    regarding immigration.” Even if this were correct, it misses
    the point. “[T]he First Amendment protects against the
    Government; it does not leave us at the mercy of noblesse
    oblige. We would not uphold an unconstitutional statute
    merely because the Government promised to use it
    responsibly.” Stevens, 559 U.S at 480. Thus, the absence of
    convictions based purely on protectable expression is not
    evidence that the statute does not criminalize speech. Just
    because the government has not (yet) sought many
    prosecutions based on speech, it does not follow that the
    government cannot or will not use an overbroad law to obtain
    such convictions. Further, the lack of convictions says
    nothing about whether Subsection (iv) chills speech. Indeed,
    Henderson exemplifies why we cannot take the government’s
    UNITED STATES V. SINENENG-SMITH                  29
    word for how it will enforce a broadly written statute, and
    suggests that any would-be speaker who has thought twice
    about expressing her views on immigration was not being
    paranoid.
    3. “An alien”
    The government contends that Subsection (iv) is limited
    to encouraging “a particular alien or aliens,” rather than “the
    general public.” For the purposes of this appeal, and to avoid
    serious constitutional concerns, we think the government’s
    proposed interpretation is reasonable, but not ultimately
    dispositive to our overbreadth analysis. And while it is easy
    to foresee arguments about what constitutes a group of
    particular aliens versus the “general public,” we accept that
    Subsection (iv) requires a defendant to direct his or her
    encouragement or inducement toward some known audience
    of undocumented individuals.
    4. “In Violation of Law”
    Recognizing the breadth of the statute, the government
    admits that “in violation of law” refers not only to criminal
    law, but also to civil violations of the immigration laws. We
    agree. Amicus Professor Eugene Volokh argues that we could
    narrow the scope of the statute by reading “violation of law”
    to mean only violations of the criminal law. But, because
    simple residence in the United States without legal status is
    not a crime, and the statute reaches inducing or encouraging
    an alien to “reside” in the United States, the subsection is not
    susceptible to this limiting construction. See Arizona v.
    United States, 
    567 U.S. 387
    , 407 (2012) (“As a general rule,
    it is not a crime for a removable alien to remain present in the
    30          UNITED STATES V. SINENENG-SMITH
    United States.”). The proposed limiting construction would
    render “reside” superfluous.
    5. Construction of the Statute
    To recap, we interpret Subsection (iv) as follows: to
    violate the subsection, a defendant must knowingly encourage
    or induce a particular alien – or group of aliens – to come to,
    enter, or reside in the country, knowing or in reckless
    disregard of whether doing so would constitute a violation of
    the criminal or civil immigration laws. As construed,
    “encourage or induce” can mean speech, or conduct, or both,
    and there is no substantiality or causation requirement.
    Ultimately, the government asks us to rewrite the statute.
    Under no reasonable reading are the words “encourage” and
    “induce” limited to conduct. We think the statute is only
    susceptible to a construction that affects speech. As an
    illustration – under the government’s reading of the statute,
    it would argue that a mother telling an undocumented adult
    child “If you leave the United States, I will be very lonely. I
    encourage you to stay and reside in the country” would not
    subject the mother to prosecution. But, in this example, the
    mother is merely repeating the words of the statute in an
    attempt to get her child to stay. We think any reasonable
    person reading the subsection would assume that the mother’s
    statement makes her vulnerable to prosecution, that the words
    of the statute have their plain meaning, and that a person can
    encourage or induce another by verbally, explicitly
    encouraging or inducing her.
    UNITED STATES V. SINENENG-SMITH                             31
    B. Subsection (iv) Restricts Protected Speech
    The conclusion that Subsection (iv) reaches speech does
    not end our inquiry. We must now examine: (1) whether the
    statute reaches protected speech and, if so, (2) whether the
    statute restricts a substantial amount of such speech in
    relation to the statute’s legitimate sweep. See, e.g., 
    Hicks, 539 U.S. at 118
    –19.
    Not all speech is protected under the First Amendment.
    Congress is allowed to restrict certain types of speech,
    including obscenity, defamation, fraud, incitement, and
    speech integral to criminal conduct. See 
    Stevens, 559 U.S. at 468
    . The most relevant exception to the First Amendment for
    this case is speech integral to criminal conduct, but
    incitement also deserves mention.
    The government asserts that even if we interpret
    Subsection (iv) to reach speech, it does not constrain
    protected speech because the speech is integral to assisting
    others in violating the immigration laws. In the government’s
    reading, Subsection (iv) is analogous to an aiding and
    abetting statute. But, to repeat, continuing to reside in the
    U.S. is not a criminal offense; therefore, assisting one to
    continue to reside here cannot be aiding and abetting a crime.
    One amicus, supporting the constitutionality of the statute,
    reads it as a solicitation restriction.9
    9
    Amicus Professor Eugene Volokh proposes construing the statute to
    restrict a defendant from “directly, specifically, and purposefully
    encouraging” criminal violations of the immigration laws. We do not
    think that the statute is reasonably susceptible to this interpretation. First,
    we decline to read a specificity or directness requirement into the statute
    because the plain meanings of encourage and induce do not include such
    principles. Second, Congress clearly knows how to write a solicitation
    32            UNITED STATES V. SINENENG-SMITH
    1. Incitement
    Under the incitement exception to the First Amendment,
    the government may not “proscribe advocacy of the use of
    force or of law violation except where such advocacy is
    directed to inciting or producing imminent lawless action and
    is likely to incite or produce such action.” Brandenburg v.
    Ohio, 
    395 U.S. 444
    , 447 (1969). “Abstract advocacy,” even
    of a crime, on the other hand, is protected speech. See
    
    Williams, 553 U.S. at 298
    –99. As we have construed
    Subsection (iv), it does not require that an alien imminently
    violate the immigration law. Nor does Subsection (iv) require
    that any encouragement or inducement make it “likely” that
    an alien will violate the immigration law. Plainly, the
    incitement doctrine is a poor fit for this particular statute,
    especially considering that other incitement cases typically
    involve incitements to violence, riot, or breach of the peace.
    See, e.g., 
    Brandenburg, 395 U.S. at 447
    –48; see also Hess v.
    Indiana, 
    414 U.S. 105
    , 109 (1973); United States v. Poocha,
    
    259 F.3d 1077
    , 1080-81 (9th Cir. 2001); 
    id. at 1084–85
    (Tashima, J., concurring in part and dissenting in part)
    (agreeing that speech must be likely to incite violence to be
    proscribed). If Subsection (iv) reaches any speech that is
    exempted from the First Amendment as incitement, it is an
    extremely narrow band of speech and does not significantly
    reduce the scope of the statute.
    statute as evidenced by 18 U.S.C. § 373(a): “Whoever . . . solicits,
    commands, induces, or otherwise endeavors to persuade such other person
    to engage in” a violent felony is subject to prosecution. If Congress
    wanted Subsection (iv) to restrict only solicitation, it could have done so.
    Finally, as discussed above, we cannot limit “in violation of law” to
    criminal laws and, like Professor Volokh, we are not aware of any
    precedent for treating speech soliciting merely civil violations as a crime.
    UNITED STATES V. SINENENG-SMITH                 33
    2. Speech Integral to Criminal Conduct
    The government’s primary argument is that any covered
    speech is “integral” to a violation of the immigration law.
    “[S]peech or writing used as an integral part of conduct in
    violation of a valid criminal statute” does not enjoy First
    Amendment protection. Giboney v. Empire Storage & Ice
    Co., 
    336 U.S. 490
    , 498 (1949); 
    id. at 498–502
    (picketing for
    “the sole immediate purpose” of compelling a company to
    stop selling to nonunion peddlers was not protected speech
    because it was part of “a single and integrated course of
    conduct” in violation of criminal restraint of trade laws). For
    this reason, speech that aids and abets criminal activity does
    not necessarily benefit from First Amendment protection.
    United States v. Freeman, 
    761 F.2d 549
    , 552 (9th Cir. 1985).
    In Freeman, we reviewed “convict[ions] on fourteen
    counts of aiding and abetting and counseling violations of the
    tax laws, an offense under 26 U.S.C. § 7206(2).” 
    Id. at 551.
    We held that the defendant was entitled to a jury instruction
    on a First Amendment defense as to twelve of the counts
    because, at least arguably, the defendant made statements
    about the “unfairness of the tax laws generally.” 
    Id. at 551–52.
    Conversely, the defendant was not entitled to the
    First Amendment instruction on the remaining two counts
    because the defendant actually assisted in the preparation of
    false tax returns. 
    Id. at 552.
    We reasoned that “[e]ven if the
    convictions on these [two] counts rested on spoken words
    alone, the false filing was so proximately tied to the speech
    that no First Amendment defense was established.” 
    Id. As Freeman
    illustrates, although some speech that aids or abets
    a crime is so integral to the crime itself that it is not
    constitutionally protected, other speech related to criminal
    activity is not so integral as to be unprotected.
    34            UNITED STATES V. SINENENG-SMITH
    Based on Freeman, the government contends that any
    speech that Subsection (iv) reaches is integral to a violation
    of the immigration laws.10 However, there are relevant
    differences between an aiding and abetting statute and
    Subsection (iv). For one, as explained above, the statute is
    not limited only to speech that substantially assists an alien in
    violating the immigration laws. Freeman exposes the
    relevant distinction. The statute in Freeman prohibited
    “[w]illfully aid[ing] or assist[ing] in, or procur[ing],
    counsel[ing], or advis[ing] the preparation or presentation” of
    false tax returns. 26 U.S.C. § 7206(2). On the twelve counts
    for which the court reversed Freeman’s convictions, the court
    focused on the fact that Freeman may have generally
    advocated the filing of false returns. 
    Id. at 551–52.
    On the
    other hand, for the two convictions that the court affirmed, it
    emphasized that Freeman “not only counseled but also
    assisted in the filing of false returns.” 
    Id. at 552
    (emphasis
    added). The assistance on the two affirmed counts, even if
    only words, was more directly related to the completed crime.
    
    Id. Thus, Freeman’s
    conclusion is that only some speech that
    the statute restricted was so related to the predicate crime that
    it was considered “integral.”11 Likewise, here, the statute
    10
    The government cites Pittsburgh Press Co. v. Pittsburgh
    Commission on Human Relations, 
    413 U.S. 376
    (1973), but the holding
    in that case relies on the since-weakened distinction between commercial
    and non-commercial speech. See Cent. Hudson Gas & Elec. Corp. v. Pub.
    Serv. Comm’n of N.Y., 
    447 U.S. 557
    , 562 (1980). More fundamentally,
    the defendant in Pittsburgh Press violated an ordinance that made it
    unlawful “to aid” in employment 
    discrimination. 413 U.S. at 389
    .
    “Encourage” and “induce” are broader than “aid,” and sweep in protected
    speech.
    11
    Freeman was an as-applied First Amendment challenge to the false
    tax returns statute. We note that the string of verbs in the statute involved
    UNITED STATES V. SINENENG-SMITH                    35
    criminalizes speech beyond that which is integral to
    violations of the immigration laws.
    Second, as the government recognizes, aiding and
    abetting convictions require the government to prove certain
    elements that are not present in Subsection (iv):
    In this circuit, the elements necessary for an
    aiding and abetting conviction are: (1) that
    the accused had the specific intent to facilitate
    the commission of a crime by another, (2) that
    the accused had the requisite intent of the
    underlying substantive offense, (3) that the
    accused assisted or participated in the
    commission of the underlying substantive
    offense, and (4) that someone committed the
    underlying substantive offense.
    
    Thum, 749 F.3d at 1148
    –49 (quoting United States v. Shorty,
    
    741 F.3d 961
    , 969–70 (9th Cir. 2013)). The first obvious
    difference is that aiding and abetting requires the commission
    of a crime by another, but Subsection (iv) applies to both
    criminal and civil violations of the immigration laws. The
    government asserts that the civil/criminal distinction should
    not matter in the First Amendment context, but points to no
    case where a defendant was convicted for aiding and abetting
    a civil offense. We are not aware of any case that upholds a
    statute restricting such speech. Therefore, even if certain
    speech would constitute aiding and abetting when directed
    toward the commission of a crime, it would be
    constitutionally protected when aimed at inducing a civil
    in Freeman is more similar to the one at issue in Williams than the
    operative verbs in Subsection (iv). See pp. 
    19–21, supra
    .
    36          UNITED STATES V. SINENENG-SMITH
    violation of law. And because unauthorized presence in the
    country is a civil violation rather than a crime, Subsection (iv)
    reaches beyond speech integral to a crime.
    Next, aiding and abetting requires that the accused
    “assisted or participated” in the commission of the offense.
    For the reasons described above, we cannot construe
    Subsection (iv) as applying only to assistance for or
    participation in a violation of the immigration law; it is
    enough to encourage.
    Further, aiding and abetting requires that a principal
    actually commit the underlying offense. See 
    id. at 1149.
    There is no such requirement in Subsection (iv). The
    government argues that this should not matter for the First
    Amendment analysis because, citing the Model Penal Code
    § 2.06(3)(a)(ii), Subsection (iv) resembles an attempted
    aiding and abetting statute. The government’s argument fails,
    however, because “[t]here is no general federal ‘attempt’
    statute. [A] defendant . . . can only be found guilty of an
    attempt to commit a federal offense if the statute defining the
    offense also expressly proscribes an attempt.” United States
    v. Hopkins, 
    703 F.2d 1102
    , 1104 (9th Cir. 1983). Subsection
    (iv) does not restrict attempt, unlike the other subsections of
    the statute.
    Most fundamentally, Subsection (iv) looks nothing like an
    aiding and abetting statute. Just two lines below Subsection
    (iv)’s text, Congress required that anyone who “aids or abets
    the commission of any of the preceding acts” shall be
    punished as a principal. 8 U.S.C. § 1324(a)(1)(A)(v)(II).
    Further, Congress authored a general aiding and abetting
    statute, 18 U.S.C. § 2, which states that “[w]hoever commits
    an offense against the United States or aids, abets, counsels,
    UNITED STATES V. SINENENG-SMITH                  37
    commands, induces or procures its commission, is punishable
    as a principal.” Clearly, if Congress wanted Subsection (iv)
    to be an aiding and abetting statute, it would have included
    the words aiding and abetting. The statute instead manifests
    Congress’ intent to restrict a broader range of activity, and
    that activity stretches beyond unprotected speech.
    C. Subsection (iv) Restricts A Substantial Amount of
    Protected Speech in Relation to its Legitimate
    Sweep
    Because we conclude that Subsection (iv) reaches
    protected speech, we must now analyze whether the amount
    of protected speech the statute restricts is substantial in
    relation to its legitimate sweep. In plain terms, are the
    statute’s improper applications too numerous to allow the
    statute to stand? “The concept of ‘substantial overbreadth’ is
    not readily reduced to an exact definition.” Members of City
    Council of L.A. v. Taxpayers for Vincent, 
    466 U.S. 789
    , 800
    (1984). But, “[c]riminal statutes must be scrutinized with
    particular care” and “those that make unlawful a substantial
    amount of constitutionally protected conduct may be held
    facially invalid even if they also have legitimate application.”
    City of Houston v. Hill, 
    482 U.S. 451
    , 459 (1987). Although
    “substantial” does not have a precise meaning in this context,
    the Supreme Court has explained that a statute may be struck
    down if it is “susceptible of regular application to protected
    expression.” 
    Id. at 467.
    In other words, “there must be a
    realistic danger that the statute itself will significantly
    compromise recognized First Amendment protections of
    parties not before the Court for it to be facially challenged on
    overbreadth grounds.” Taxpayers for 
    Vincent, 466 U.S. at 801
    .
    38             UNITED STATES V. SINENENG-SMITH
    It is apparent that Subsection (iv) is susceptible to regular
    application to constitutionally protected speech and that there
    is a realistic (and actual) danger that the statute will infringe
    upon recognized First Amendment protections. Some of the
    situations raised in the supplemental briefing and at oral
    argument demonstrate the improper scope of this statute.
    While we are aware that the Supreme Court is skeptical of
    “fanciful hypotheticals” in overbreadth cases, we do not think
    that the scenarios raised here are fanciful. See 
    Williams, 553 U.S. at 301
    . We think that they are part of every-day
    discussions in this country where citizens live side-by-side
    with non-citizens. Buttressing our assessment that the
    following hypotheticals are not overly speculative, the
    government has already shown a willingness to apply
    Subsection (iv) to potentially protected speech. See
    Henderson, 
    857 F. Supp. 2d
    at 193–94, 203–04.12
    We begin with an obvious example from one of the
    amicus briefs: “a loving grandmother who urges her grandson
    12
    Additionally, the City and County of San Francisco in its amicus
    brief represents that the government has repeatedly threatened its officials
    with violations of 8 U.S.C. § 1324. For example, “ICE Director Thomas
    Homan announced that he had asked Attorney General Sessions to
    determine whether sanctuary cities like San Francisco are ‘committing a
    statutory crime’ under section 1324.” Further, San Francisco relates that
    “Director Homan renewed his threat in even starker terms. According to
    Director Homan, ‘when a sanctuary city intentionally or knowingly shields
    an illegal alien from federal law enforcement, that is a violation of
    8 U.S.C. 1324.’ Director Homan announced that he was ‘putting together
    a response plan’ with ‘the highest levels of the Department of Justice,’ and
    ominously declared, ‘This is not over.’” True, San Francisco reports that
    “[t]o the extent these threats have been tied to any specific prong of
    section 1324, they have been tied to the ‘harboring’ or ‘transporting’
    prongs of that statute.” 
    Id. But not
    all of the threats were tied to a specific
    subsection, and the government might well turn to Subsection (iv).
    UNITED STATES V. SINENENG-SMITH                 39
    to overstay his visa,” by telling him “I encourage you to
    stay.” Nothing in Subsection (iv) would prevent the
    grandmother from facing felony charges for her statement.
    Again, in Williams, the Supreme Court used almost identical
    language – “I encourage you to obtain child pornography” –
    to describe abstract advocacy immune from government
    
    prohibition. 553 U.S. at 300
    . The government has not
    responded persuasively to this point; it simply argues that the
    grandmother would not be subject to criminal charges
    because her statement was “not accompanied by assistance or
    other inducements.” However, as we have detailed above,
    Subsection (iv) does not contain an act or assistance
    requirement.
    Further, implying a mens rea requirement into the statute,
    and applying it only to speech to a particular person does not
    cure the statute’s impermissible scope. Just because the
    grandmother wanted her words to encourage her grandson
    and said them directly to him does not render those words
    less protected under the First Amendment. We think that
    situations like this one, where a family member encourages
    another to stay in the country, or come to the country, are
    surely the most common form of encouragement or
    inducement within Subsection (iv)’s ambit.
    The government similarly dismisses “marches, speeches,
    publications, and public debate expressing support for
    immigrants,” as being subject to Subsection (iv)’s
    restrictions. Again, however, the government relies on its
    faulty construction of the statute to argue that such speech
    does not “assist” or “incentivize” an immigrant to come to,
    enter, or reside in the United States in violation of law. The
    statute, however, does not criminalize assistance or
    incentivizing; it makes it a felony to “encourage” or “induce.”
    40            UNITED STATES V. SINENENG-SMITH
    A speech addressed to a gathered crowd,13 or directed at
    undocumented individuals on social media,14 in which the
    speaker said something along the lines of “I encourage all you
    folks out there without legal status to stay in the U.S.! We
    are in the process of trying to change the immigration laws,
    and the more we can show the potential hardship on people
    who have been in the country a long time, the better we can
    convince American citizens to fight for us and grant us a path
    to legalization,” could constitute inducement or
    encouragement under the statute. But, this general advocacy
    could not be considered incitement because there is no
    imminent breach of the peace. It would not be aiding and
    abetting or solicitation because it is general and is not
    advocating a crime. Instead, it is pure advocacy on a hotly-
    debated issue in our society. Such “speech on public issues
    occupies the highest rung of the hierarchy of First
    Amendment values, and is entitled to special protection.”
    Snyder v. Phelps, 
    562 U.S. 443
    , 452 (2011) (quoting Connick
    v. Myers, 
    461 U.S. 138
    , 145 (1983)). Criminalizing
    expression like this threatens almost anyone willing to weigh
    in on the debate. Cf. Alameda Newspapers, Inc. v. City of
    Oakland, 
    95 F.3d 1406
    , 1414 (9th Cir. 1996) (“Cities,
    counties, and states have a long tradition of issuing
    pronouncements, proclamations, and statements of principle
    on a wide range of matters of public interest, including . . .
    immigration.”).
    13
    Speaking directly to a particular group of aliens, as opposed to the
    public at large, is within the scope of Subsection (iv) as we have construed
    it.
    14
    The Supreme Court has made clear that “cyberspace . . . . and social
    media in particular” is “the most important place[] . . . for the exchange of
    views.” Packingham v. North Carolina, 
    137 S. Ct. 1730
    , 1735 (2017).
    UNITED STATES V. SINENENG-SMITH                41
    Additionally, amici present several examples of
    professionals who work with immigrants whose speech might
    be chilled on account of Subsection (iv)’s breadth. The most
    common example cited is an attorney who tells her client that
    she should remain in the country while contesting removal –
    because, for example, non-citizens within the United States
    have greater due process rights than non-citizens outside the
    United States, or because, as a practical matter, the
    government may not physically remove her until removal
    proceedings are completed. See Zadvydas v. Davis, 
    533 U.S. 678
    , 693 (2001). Under the statute’s clear scope, the
    attorney’s accurate advice could subject her to a felony
    charge. The government’s arguments to the contrary are
    unavailing. First, undoubtedly, the attorney would know that
    telling an immigrant she would have greater rights if she
    remained here or that she may not be removed while in
    removal proceedings would encourage the immigrant to stay.
    And, we do not think construing Subsection (iv) to reach
    advice from attorneys endangers statutes like 18 U.S.C.
    § 2(a), the general aiding and abetting statute. An attorney
    can knowingly encourage a course of action without aiding or
    abetting it. Moreover, as we have explained, remaining in the
    country while undocumented, without more, is not a crime.
    More fundamentally, though, the government has already
    shown its intent to prosecute those citizens (attorneys or
    sympathetic lay persons) who give even general immigration
    advice. See Henderson, 
    857 F. Supp. 2d
    at 193.
    The foregoing examples are not some parade of fanciful
    horribles. Instead, they represent real and constitutionally-
    protected conversations and advice that happen daily. They
    demonstrate that Subsection (iv)’s impermissible applications
    are real and substantial. Because Subsection (iv)’s legitimate
    sweep – which only reaches conduct not criminalized in the
    42           UNITED STATES V. SINENENG-SMITH
    other subsections of § 1324(a)(1)(A), and unprotected speech
    – is narrow, we hold that Subsection (iv) is overbroad under
    the First Amendment.15
    CONCLUSION
    Subsection (iv) criminalizes a substantial amount of
    protected expression in relation to the statute’s narrow
    legitimate sweep; thus, we hold that it is unconstitutionally
    overbroad in violation of the First Amendment. The
    judgment of the district court is REVERSED with respect to
    the “encourage or induce” counts, Counts 2 and 3 of the First
    Superseding Indictment.           In accordance with the
    Memorandum disposition filed concurrently herewith, with
    respect to the mail fraud counts, Counts 5 and 6, the judgment
    of the district court is AFFIRMED.
    Because two of the five counts of conviction are reversed,
    the sentence must be vacated and the case remanded for
    resentencing. See United States v. Carter, 
    2018 WL 5726694
    , at *8 (9th Cir. Nov. 2, 2018); United States v.Davis,
    
    854 F.3d 601
    , 606 (9th Cir. 2017).
    REVERSED in part, AFFIRMED in part, sentence
    VACATED and REMANDED for resentencing.
    15
    Because we strike down Subsection (iv) as overbroad, we need not
    reach the separate issue of whether the statute is void for vagueness.