Page:United States v. Hansen.pdf/23

Rh of a particular piece of contraband, id., at 299, solicitation of unlawful employment, Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U. S. 376, 388 (1973), and picketing with the “sole, unlawful [and] immediate objective” of “induc[ing]” a target to violate the law, Giboney, 336 U. S., at 502. It applies to clause (iv) too.

Hansen has no quibble with that conclusion to the extent that clause (iv) criminalizes speech that solicits or facilitates a criminal violation, like crossing the border unlawfully or remaining in the country while subject to a removal order. See §§1253(a), 1325(a), 1326(a). He agrees that these applications of §1324(a)(1)(A)(iv) are permissible—in fact, he concedes that he would lose if clause (iv) covered only solicitation and facilitation of criminal conduct. Tr. of Oral Arg. 61–62. But he resists the idea that the First Amendment permits Congress to criminalize speech that solicits or facilitates a civil violation—and some immigration violations are only civil. Brief for Respondent 38. For instance, residing in the United States without lawful status is subject to the hefty penalty of removal, but it generally does not carry a criminal sentence. See Arizona v. United States, 567 U. S. 387, 407 (2012).

Call this the “mismatch” theory: Congress can impose criminal penalties on speech that solicits or facilitates a criminal violation and civil penalties on speech that solicits or facilitates a civil violation—but it cannot impose criminal penalties on speech that solicits or facilitates a civil violation. See Tr. of Oral Arg. 62–63; Brief for Eugene Volokh as Amicus Curiae 5–7. If this theory is sound, then clause