Last year, I wrote about the Anti-Riot Act, which not one, but two federal appeals courts declared partly unconstitutional. In those cases, white supremacists were partially successful in challenging a federal law that broadly prohibited the “incitement”, “urge”, “encouragement” to riot. That law defined "incitement" to riot to include the "advocacy of" or the "assertion of the rightness of" acts of violence.
I present another First Amendment case where a federal statute was invalidated for overbreadth.
One week ago, the U.S. Court of Appeals for the Ninth Circuit declared that part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 was unconstitutional.
8 U.S.C. § 1324(a)(1)(A)(iv) states:
In United States v. Hansen (9th Cir. 2022), the Ninth Circuit noted that the plain meaning of 1324(a)(1)(A)(iv) covered a substantial amount of protected speech:
For those of you who oppose illegal immigration, you're probably asking why this should be "lifefuel". It's because this decision, similar to the two that partially struck down the Anti-Riot Act, reaffirms a key principle of First Amendment jurisprudence: the Constitution protects the mere or abstract advocacy of illegal activity, as distinct from the likely and imminent incitement of lawless action. See Brandenburg v. Ohio, 395 U.S. 444 (1969).
It is for this reason that the First Amendment protects a Stormfag's right to say "Let's round up and send the niggers back to Africa", an Antifa cuck's right to say "We should punch these Nazis", and an edgelord's right to say "Child pornography should be legal".
This is not to draw any moral equivalence between these activities, but to point out that the moral value of speech has no bearing on its constitutionality. Instead, the courts draw and apply rigid categorical analyses to determine if the speech in question falls into a well-defined and narrowly limited category of unprotected speech.
The federal judiciary has made it clear that even if a law punishes unprotected speech, it is unconstitutional if it is overbroad and sweeps up a substantial amount of protected speech. As Justice Kennedy noted in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), "The Government may not suppress lawful speech as the means to suppress unlawful speech," Id. at 255. This is because "the possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted," Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973).
In the present case, the U.S. Department of Justice did not contest that saying "I encourage you to reside in the United States," to an illegal immigrant is protected speech. Instead, their argument was basically that they would only and have only used it to prosecute individuals in cases who had in fact actively solicited, aided or abetted illegal immigration. But the Ninth Circuit rejected this:
Glad to see judicial review in action.
I present another First Amendment case where a federal statute was invalidated for overbreadth.
One week ago, the U.S. Court of Appeals for the Ninth Circuit declared that part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 was unconstitutional.
8 U.S.C. § 1324(a)(1)(A)(iv) states:
In United States v. Hansen (9th Cir. 2022), the Ninth Circuit noted that the plain meaning of 1324(a)(1)(A)(iv) covered a substantial amount of protected speech:
For those of you who oppose illegal immigration, you're probably asking why this should be "lifefuel". It's because this decision, similar to the two that partially struck down the Anti-Riot Act, reaffirms a key principle of First Amendment jurisprudence: the Constitution protects the mere or abstract advocacy of illegal activity, as distinct from the likely and imminent incitement of lawless action. See Brandenburg v. Ohio, 395 U.S. 444 (1969).
It is for this reason that the First Amendment protects a Stormfag's right to say "Let's round up and send the niggers back to Africa", an Antifa cuck's right to say "We should punch these Nazis", and an edgelord's right to say "Child pornography should be legal".
This is not to draw any moral equivalence between these activities, but to point out that the moral value of speech has no bearing on its constitutionality. Instead, the courts draw and apply rigid categorical analyses to determine if the speech in question falls into a well-defined and narrowly limited category of unprotected speech.
The federal judiciary has made it clear that even if a law punishes unprotected speech, it is unconstitutional if it is overbroad and sweeps up a substantial amount of protected speech. As Justice Kennedy noted in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), "The Government may not suppress lawful speech as the means to suppress unlawful speech," Id. at 255. This is because "the possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted," Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973).
In the present case, the U.S. Department of Justice did not contest that saying "I encourage you to reside in the United States," to an illegal immigrant is protected speech. Instead, their argument was basically that they would only and have only used it to prosecute individuals in cases who had in fact actively solicited, aided or abetted illegal immigration. But the Ninth Circuit rejected this:
Glad to see judicial review in action.
Last edited:
