Amicus Curiae Brief — United States, Petitioner v. Evelyn Sineneng-Smith

No. 19-67

In the

Supreme Court of the United States

UNITED STATES OF AMERICA,

Petitioner,

v.

EVELYN SINENENG-SMITH,

Respondent.

On Writ of Certiorari to the United States

Court of A ppeals for the Ninth Circuit

BRIEF OF AMICI CURIAE The Electronic

Frontier Foundation, Immigrants Rising,

The Internet Archive and Daphne Keller

IN SUPPORT OF RESPONDENT

David Greene

Counsel of Record

Saira Hussain

Naomi Gilens

Electronic Frontier Foundation

815 Eddy Street

San Francisco, CA 94109

(415) 436-9333

davidg@eff.org

Attorneys for Amici Curiae

293760

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . ii

STATEMENT OF INTERESTS OF AMICI

CURIAE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 3

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I.

THE ENCOURAGEMENT PROVISION’S

BROA D S W EEP T H R E AT ENS

THE SPEECH OF IMMIGR ATION

A DVOCAC Y A N D SERV ICES

ORGANIZATIONS ONLINE . . . . . . . . . . . . . . . 6

II. THE ENCOURAGEMENT PROVISION

WILL CHILL ONLINE PLATFORMS

FROM HOSTING CONSTITUTIONALLY

PROTECTED SPEECH . . . . . . . . . . . . . . . . . . 10

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

ii

TABLE OF CITED AUTHORITIES

Page

Cases

New York Times v. Sullivan,

376 U.S. 254 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . 9, 16

Packingham v. North Carolina,

137 S. Ct. 1730 (2017) . . . . . . . . . . . . . . . . . . . . . . . . 3, 5

Reed v. Town of Gilbert,

135 S. Ct. 2218 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . 15

Reno v. Am. Civil Liberties Union,

521 U.S. 844 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . 13-14

United States v. Sineneng-Smith,

910 F.3d 461 (9th Cir. 2018) . . . . . . . . . . . . . . . . . . . . . 4

United States v. Williams,

553 U.S. 285 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Universal Commc’n Sys., Inc. v. Lycos, Inc.,

478 F.3d 413 (1st Cir. 2007) . . . . . . . . . . . . . . . . . . . . 11

Statutes

8 U.S.C. § 1324(a)(1)(A)(iv) . . . . . . . . . . . . . . . . . . . . passim

8 U.S.C. § 1324(a)(1)(A)(v) . . . . . . . . . . . . . . . . . . . . . . . . 10

47 U.S.C. § 230(e)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

iii

Cited Authorities

Page

Other Authorities

Abdul Rahman A l Jaloud, Hadi A l Khatib,

Jeff Deutch, Dia Kayyali, and Jillian C.

York, Caught in the Net: The Impact of

“Extremist” Speech Regulations on Human

Ri gh t s C o n t e n t , Ele c t r on i c F r ont i e r

Foundation et al. (May 2019) . . . . . . . . . . . . . . . . . . . 14

Aja Romano, A New Law Intended to Curb

Sex Trafficking Threatens the Future of the

Internet As We Know It, Vox, July 2, 2018 . . . . . . . 11

A lexa , Reddit .com Competitive Analysis ,

Marketing Mix and Traffic, https://www.alexa.

com/siteinfo/reddit.com#section_traffic . . . . . . . . . . 7

Alexis Ohanian, An Open Letter to the Reddit

Community, Reddit, Jan. 30, 2017 . . . . . . . . . . . . 1612

Am. Civil Liberties Union, Know Your Rights:

Immigrants’ Rights, https: // w w w.aclu.

org/know-your-rights/immigrants-rights/ . . . . . . . . . 8

Associated Press, Arizona Border Activist

Acquitted of Harboring Immigrants, Nov.

20, 2019, https:// ktar.com/story/2849078/

prosecutor-a r izona-border-activ isttried-to-hide-migrants/ . . . . . . . . . . . . . . . . . . . . . . . . 9

iv

Cited Authorities

Page

Bijan Stephen, Porn: You Know It When You

See It, But Can A Computer?, The Verge,

Jan. 30, 2019 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Casey Newton, The Trauma Floor, The Verge,

Feb. 25, 2019 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Craigslist, FOSTA, https://www.craigslist.org/

about/FOSTA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Elliot Harmon, Facebook’s Sexual Solicitation

Policy is a Honeypot for Trolls, Electronic

Frontier Foundation, Dec. 7, 2018 . . . . . . . . . . . . . . . 11

I m m i g r a nt s R i s i n g, R e s o u r c e s, ht t p s: //

immigrantsrising.org/resources/ . . . . . . . . . . . . . . . . 7

Infor med Immig rant, Know Your Rights,

https://www.informedimmigrant.com/guides/

know-your-rights/ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Is it safe to fly (posted Apr. 27, 2019), https://

www.reddit.com/r/immigration/comments/

bi1mbg/is_it_safe_to_fly/ . . . . . . . . . . . . . . . . . . . . . . . 7

J. Clement, Number of Monthly Active Facebook

Users Worldwide, Statista, Nov. 19, 2019 . . . . . . . . . 12

Jennifer M. Urban et al., Notice and Takedown

in Eve r yd ay Pr a c ti ce, Un iv. of Ca l.–

Berkeley P ubl ic Law Resea rch Paper

No. 2755628 (Mar. 22, 2017) . . . . . . . . . . . . . . . . . . . . 13

v

Cited Authorities

Page

Kate Crawford & Tarleton Gillespie, What

Is a Flag For?: Social Media Reporting

Tools and the Vocabulary of Complaint,

New Media & Society (2014) . . . . . . . . . . . . . . . . 12-13

NAKASEC, Know Your Rights!, https://nakasec.

org/rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Nat’l Immigration Law Ctr., Know Your Rights,

https://www.nilc.org/get-involved/communityeducation-resources/know-your-rights/ . . . . . . . . . . . 8

Ra fa el Ca r ra n za , Ai d Volunt eers Fo un d

Guilty of Dropping Off Water, Food for

Migrants in Protected Par t of Ar izona

Desert, Arizona Republic, Jan 18, 2019 . . . . . . . . . . . 9

Sarah T. Roberts, Meet the People Who Scar

Themselves to Clean Up Our Social Media

Networks, Macleans, June 15, 2018 . . . . . . . . . . . . . . 13

Taylor Lorenz , Zuckerberg Debates

Immigration with Facebook Commenters,

The Hill, Sept. 1, 2017 . . . . . . . . . . . . . . . . . . . . . . . . . 12

Visa Jou r ney, US Immi gr ati o n Fo r um s,

https://www.visajourney.com/forums . . . . . . . . . . . . . 7

1

STATEMENT OF INTERESTS OF

AMICI CURIAE1

Amici curiae represent a variety of stakeholders

united in their concern that the federal criminal prohibition

in 8 U.S.C. § 1324(a)(1)(A)(iv) silences constitutionally

protected speech, and if upheld here, will work a

unique and pervasive chilling effect on online speech in

particular. Amici—a digital rights advocacy organization,

an immigrant services organization, an online library

seeking to preserve a record of online speech, and an

expert on intermediary liability—represent both the

speakers themselves as well as the intermediaries that

make such speech possible. Because of the statute’s broad

and ambiguous scope, amici—along with other direct

online speakers in support of immigrant rights and the

platforms that host such content—face the risk of criminal

liability.

The Electronic Frontier Foundation (EFF) is a

nonprofit organization that has worked for more than 29

years to protect free speech and civil liberties in the digital

world. EFF and its more than 34,000 active donors have

a powerful interest in ensuring that the Internet serves

as a venue for free speech and the open communication

of ideas for all users.

1. No counsel for a party authored this brief in whole or in part,

and no such counsel or party made a monetary contribution intended

to fund the preparation or submission of this brief. No person

other than the amici curiae, or their counsel, made a monetary

contribution intended to fund its preparation or submission. All

parties have consented in writing to the filing of this brief.

All websites cited in this brief were last visited on January 17,

2020.

2

Immigrants Rising is a fiscally-sponsored project

of Community Initiatives, a nonprofit organization.

Founded in 2006, Immigrants Rising provides resources

and support to undocumented young people to help them

obtain an education, pursue careers, and build a brighter

future for themselves and their community. Immigrants

Rising offers a website aimed at undocumented young

people that provides information on financial resources

for higher education, income generation, immigration legal

assistance, and more.

The Internet Archive is a nonprofit organization that

is building an Internet library to prevent online and other

“born-digital” materials from disappearing into the past.

The Archive collects and displays web materials on behalf

of entities such as the Library of Congress, the National

Archives, state archives, libraries, universities, and other

countries, with the vast majority in its collection consisting

of material authored by third parties. Founded in 1997,

the Archive is among the 300 most visited websites in the

world, with millions of visitors and users daily. Because

the Archive hosts billions of web materials, both collected

by the Archive and uploaded by users, it is functionally

impossible for the Archive to police its contents or respond

to all takedown notices.

Daphne Keller is the Director of Intermediary

Liability at the Center for Internet and Society, a public

interest technology law and policy program at Stanford

Law School. Ms. Keller works to promote well-designed

platform regulation laws, in order to protect the free

exchange of ideas on the Internet. Ms. Keller has

published both academically and in popular press, testified

and participated in legislative processes, and taught and

lectured extensively.

3

SUMMARY OF ARGUMENT

The Encouragement Provision, 8 U.S.C. § 1324(a)(1)

(A)(iv), uniquely threatens constitutionally protected online

speech. As this Court has recognized, the Internet is

where people “engage in a wide array of protected First

Amendment activity on topics as diverse as human thought.”

Packingham v. North Carolina, 137 S. Ct. 1730, 1735-36 (2017)

(citation omitted). Thus, it is of little surprise that

immigrant rights advocates and services providers use

the Internet to share messages of hope and resources that

allow undocumented immigrants to make better lives for

themselves—all of which can be seen as “encouragement,”

and thus illegal, under the Encouragement Provision.

First, the variety and prevalence of speech online in

support of immigrants and the ways in which any Internet

user can amplify such speech illustrates the Encouragement

Provision’s uncertain and overly broad sweep.

Second, by prohibiting an enormous amount of

commonplace speech, the Encouragement Provision also

burdens the online platforms that host this type of speech.

These platforms may themselves be exposed to liability

as the publishers or aiders and abettors of such speech.

The Provision thereby incentivizes platforms to censor

“encouraging” speech on their websites. And because

platforms face great difficulty in enforcing finely drawn

distinctions between prohibited and permitted speech,

they are likely to censor lawful speech about immigration

more broadly.

This Court should affirm the Ninth Circuit, which

correctly recognized the sweeping breadth of speech

that the Encouragement Provision necessarily affects,

from “a loving grandmother who urges her grandson to

4

overstay his visa” to a post “directed at undocumented

individuals on social media” that encourages them to stay

in the United States. United States v. Sineneng-Smith,

910 F.3d 461, 483-84 (9th Cir. 2018).

ARGUMENT

Shortly after this Court heard oral arguments

in Department of Homeland Security v. Regents of

the University of California, 2 thousands of Twitter

users weighed in on the case using the hashtags

#HereToStay and #HomeIsHere. People from across

the country tweeted out in support of undocumented

youth, emphasizing that immigrants make the country

stronger, that the United States is their home, and that

undocumented immigrants should continue to reside

here. Among them was Julián Castro, former Secretary

of Housing and Urban Development and, at the time, a

presidential candidate, who shared:

Home is here.

Roots have been planted here.

Families have been created here.

Degrees have been earned here.

Dreams have been built here.

Futures are here.

#HomeIsHere.

And dreamers3 are #HereToStay

2. Supreme Court Case No. 18-587 (argued Nov. 12, 2019).

3. Recipients of Deferred Action for Childhood Arrivals

(DACA) are often referred to as “Dreamers.”

5

@JulianCastro, Twitter (Nov. 12, 2019, 3:06 PM).4

The Encouragement Provision calls the legality of this

act of tweeting, and the others like it from less prominent

individuals, into question. And given the inherent nature

of social media, the Encouragement Provision poses a risk

of criminal liability to a wide range of speakers beyond

Secretary Castro himself, including anyone who liked or

retweeted it or posted a supportive reply, and Twitter

itself, which provided the platform for this encouragement.

Given its interactive nature, international reach,

and the capacity for both one-to-one and mass real-time

communications, the Internet is an especially effective

medium for the protected speech that the Encouragement

Provision chills. As this Court has recognized, the “vast

democratic forums of the Internet” have become one of

the “most important places . . . for the exchange of views”

today. Packingham, 137 S. Ct. at 1735 (citation omitted).

“Encouraging” speech directed to noncitizens seeking

to enter or remain in the United States without legal

authorization is found across the Internet, not merely

on social media platforms. Websites, applications, cloudbased document-sharing systems, and messaging services

abound with such speech. And the speakers represent a

wide range of interests, from concerned private individuals

to governmental officials, from advocacy organizations to

“aliens” themselves.

The overbreadth and ambiguity of the Encouragement

Provision thus poses special threats to online speech.

4. https://twitter.com/JulianCastro/status/1194391098606665730.

6

I.

T H E E NC OU R AGEM E N T PR OV I S ION ’ S

BROAD SWEEP THREATENS THE SPEECH

OF IMMIGRATION ADVOCACY AND SERVICES

ORGANIZATIONS ONLINE.

Advocacy and services organizations use a wide

variety of online tools to provide information to both the

general public and noncitizens specifically.

Hundreds of community-based organizations

utilize websites to provide undocumented immigrants

with resources on how to obtain healthcare, housing,

and other services. Amicus Immigrants Rising, a

nonprofit organization whose mission is to “empower

undocumented young people to achieve educational and

career goals through personal, institutional, and policy

transformation,” provides a number of online resources

for undocumented people, including:

• Information about undergraduate and graduate

scholarships;

• In-State Tuition Tool, a survey that helps determine

whether a student qualifies for in-state tuition in

California and advises on how to achieve future

eligibility;

• Resources on entrepreneurship opportunities and

how immigrant entrepreneurs can protect their

assets;

• Mental Health Connector, a questionnaire that

connects young people with psychological support;

and

7

• Legal Intake, a survey to learn about possible

immigration options. 5

***

Several websites allow users to solicit advice from

other users regarding immigration matters. Reddit, a

social news aggregation and discussion website, is the

sixth-most visited website in the United States.6 Users

can submit posts to boards arranged by topic, known

as “subreddits.” The Immigration subreddit has 21,000

members, and users submit and respond to posts seeking

advice on immigration matters.7 On any given day, several

of the top threads include questions about whether and

how an undocumented immigrant can remain in the United

States. For example, in one post, a user asked whether

her undocumented friend would be able to fly within the

United States. 8 Other users responded with statements

such as “I’d risk it” and “I have friends that fly often. Is

safe.” Through these threads, users often receive advice

about their immigration options, including coming into

or remaining in the United States without authorization.

5. Immigrants Rising, Resources, https://immigrantsrising.

org/resources/.

6. Alexa, Reddit.com Competitive Analysis, Marketing Mix

and Traffic, https://www.alexa.com/siteinfo/reddit.com#section_

traffic.

7. Reddit, Immigration Subreddit, https://w w w.reddit.

com/r/immigration/. Visa Journey, a website that bills itself

“America’s Largest Immigration Community,” also provides similar

functionality. See Visa Journey, US Immigration Forums, https://

www.visajourney.com/forums.

8. Reddit, Is it safe to fly (posted Apr. 27, 2019), https://www.

reddit.com/r/immigration/comments/bi1mbg/is_it_safe_to_fly/.

8

***

Many legal organizations provide materials on their

websites to inform undocumented immigrants about

their legal rights. The American Civil Liberties Union,

for example, provides an in-depth “know your rights”

page with resources available in 14 languages to counsel

undocumented immigrants on their rights if immigration

agents come to their home or if they are stopped at the

border. 9 Such materials accurately inform immigrants

that they need not answer questions if law enforcement

asks about their immigration status and should not open

their door if immigration officers come to their home

without a search or arrest warrant.

***

Tweets assuring undocumented youth that their

#HomeIsHere and that they are #HereToStay are

intended to inspire, inspirit, embolden, and give hope or

courage to those youth facing revocation of the DACA

policy. Speech informing undocumented immigrants about

their legal rights when conversing with immigration agents

similarly embolden those immigrants to remain within

the country. And speakers who direct undocumented

immigrants to resources that will allow them to build

meaningful and productive lives within the United States

9. Am. Civil Liberties Union, Know Your Rights: Immigrants’

Rights, https://www.aclu.org/know-your-rights/immigrants-rights/.

See also, e.g., Informed Immigrant, Know Your Rights, https://

www.informedimmigrant.com/guides/know-your-rights/; Nat’l

Immigration Law Ctr., Know Your Rights, https://www.nilc.org/

get-involved/community-education-resources/know-your-rights/;

NAKASEC, Know Your Rights!, https://nakasec.org/rights.

9

inspirit and enable immigrants to remain unlawfully in

the country, and give immigrants hope that this country

wants them here.

The Encouragement Provision, on its face, prohibits

all these examples of speech found across the Internet.

As set forth in the constitutional and legal analysis

in Respondent’s brief, the Encouragement Provision

bans exactly what it says: any speech that tends to

inspire, inspirit, embolden, or give hope or courage to

noncitizens regarding the prospect of residing unlawfully

in the United States. See Resp. Br. at 17-34. And,

regardless of the government’s late-hour assurances

about what it will and will not prosecute, the existence

of the Provision will inhibit reasonable speakers from

engaging in this constitutionally protected speech for

fear of criminal punishment.10 Our nation’s profound

commitment to uninhibited, robust, and wide-open

debate on public issues cannot permit such a result. See

New York Times v. Sullivan, 376 U.S. 254, 270 (1964).

10. A speaker may legitimately fear that the Department of

Justice will prosecute immigration laws to the fullest extent their

plain language indicates. See, e.g., Associated Press, Arizona Border

Activist Acquitted of Harboring Immigrants, Nov. 20, 2019, https://

ktar.com/story/2849078/prosecutor-arizona-border-activist-triedto-hide-migrants/; Rafael Carranza, Aid Volunteers Found Guilty

of Dropping Off Water, Food for Migrants in Protected Part of

Arizona Desert, Arizona Republic, Jan. 18, 2019, https://www.

azcentral.com/story/news/2019/01/18/no-more-deaths-volunteersfound-guilty-dropping-water-food-migrants-cabeza-prieta-refugearizona/2617961002/.

10

II. THE ENCOURAGEMENT PROVISION WILL

CHILL ONLINE PLATFORMS FROM HOSTING

CONSTITUTIONALLY PROTECTED SPEECH

It is not only the speakers themselves who may face

criminal liability for their “encouraging” statements

online. Internet speech typically requires several layers of

intermediaries: web hosts, social media platforms, domain

name registers, security-service providers, and numerous

others. If only one of these intermediaries is chilled by

the law—either for fear of direct liability as a publisher

of “encouraging” speech, or for fear of liability as an aider

and abettor of such speech11—the online speaker will lose

their ability to reach their audience.12

To avoid the risk of criminal penalties, intermediaries

would need to moderate speech about immigration on

their platforms, censoring users’ speech that crosses the

line—or that risk-averse platforms fear may cross the

line—into “encouragement” in violation of the statute.

Thus, even if a speaker is, in fact, willing to risk the threat

of criminal prosecution and engage in speech encouraging

noncitizens to reside in the United States regardless of

the Encouragement Provision’s prohibition, they may well

find themselves stifled by the online platforms on which

they rely.

11. See 8 U.S.C. § 1324(a)(1)(A)(v).

12. In some circumstances, federal law protects online

intermediaries from legal responsibility for users’ speech that the

intermediaries host, but the statute contains an exception allowing

for federal criminal enforcement. 47 U.S.C. § 230(e)(1). Platforms

would thus receive no immunity from intermediary liability under

the Encouragement Provision.

11

Moreover, even users engaging in perfectly lawful

speech about immigration may find themselves censored,

because intermediaries are ill-equipped to accurately

moderate the content of their users’ speech. When faced

with the risk that the speech they are transmitting may

be illegal, intermediaries commonly choose to broadly

restrict all speech about a topic rather than take on the

expensive and unmanageable burden of distinguishing

lawful from unlawful speech—a task that becomes even

more unmanageable when the bounds of lawfulness are

ill-defined. When Congress banned online advertisements

for sex work, for example, platforms including Facebook,

Tumblr, Craigslist, and others responded by adopting

sweeping prohibitions on content that reached far beyond

the specific category of speech that the law targeted.13

Imposing broad restrictions on wide swaths of speech

may be a platform’s only practical way of enforcing a

narrower legal prohibition, in light of both the enormous

volume of speech that platforms host, and the difficulty of

parsing prohibited and permissible speech. See Universal

Commc’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 418-19 (1st

Cir. 2007) (citing cases).

13. See, e.g., Craigslist, FOSTA, https://www.craigslist.org/

about/FOSTA; Aja Romano, A New Law Intended to Curb Sex

Trafficking Threatens the Future of the Internet As We Know It,

Vox, July 2, 2018, https://www.vox.com/culture/2018/4/13/17172762/

fosta-sesta-backpage-230 -internet-freedom; Elliot Harmon,

Facebook’s Sexual Solicitation Policy is a Honeypot for Trolls,

Electronic Frontier Foundation, Dec. 7, 2018, https://www.eff.org/

deeplinks/2018/12/facebooks-sexual-solicitation-policy-honeypottrolls.

12

First, online intermediaries deal with a staggering

volume of expression. Although these companies are quite

clearly aware that debate over immigration is occurring

through their services—at times even provoking and

participating in that debate themselves on their own

platforms14 —it would require a monumental dedication of

resources to monitor how each of their thousands, millions,

and sometimes billions of users15 engage on the topic.

Already, to enforce internal standards for user speech,

platforms must necessarily rely on their users to flag

content that violates the platforms’ standards.16 At large

14. See, e.g., Alexis Ohanian, An Open Letter to the Reddit

Community, Reddit, Jan. 30, 2017, https://w w w.reddit.com/r/

blog/comments/5r43td/an_open_letter_to_the_reddit_community/

(Reddit founder and executive chairman stating that “Reddit, Inc.

will continue to welcome all citizens of the world to our digital

community and our office,” and inviting Reddit users to share

their own immigration stories and receiving 30,900 responses);

@Twitter, Twitter (Jan. 28, 2017, 5:20 PM), https://twitter.com/

twitter/status/825513865794293761 (Twitter’s official company

account stating: “Twitter is built by immigrants of all religions. We

stand for and with them, always.”; and receiving 10,000 responses);

Taylor Lorenz, Zuckerberg Debates Immigration with Facebook

Commenters, The Hill, Sept. 1, 2017, https://thehill.com/blogs/

ballot-box/348865-mark-zuckerberg-debates-immigration-withfacebook-commenters (reporting that Facebook founder and CEO

Mark Zuckerberg publicly expressed support for DACA and debated

immigration with members of the public on Facebook).

15. See, e.g., J. Clement, Number of Monthly Active Facebook

Users Worldwide, Statista, Nov. 19, 2019, https://www.statista.

com/statistics/264810/number-of-monthly-active-facebook-usersworldwide/ (noting that Facebook has 2.45 billion active users each

month).

16. See, e.g., Kate Crawford & Tarleton Gillespie, What Is a

Flag For?: Social Media Reporting Tools and the Vocabulary of

13

platforms, thousands of staff and contractors then review

the flagged material, often making snap judgments about

each item in order to get through the enormous volume of

material awaiting review.17 At smaller ones, where such

staffing is impossible, employees may simply honor any

takedown demand, no matter how legally unfounded.18 It is

simply not conceivable that intermediaries would, or could,

dedicate the human labor that would be needed to sift

through the enormous volume of speech shared on their

platforms to remove speech that encourages noncitizens

to reside in the United States unlawfully.

Where platforms face the threat of criminal penalties,

community policing inevitably results in the heckler’s veto,

whereby an intermediary will choose to delete content

that is subject to a complaint rather than taking on the

time and expense to investigate the legitimacy of the

complaint. See Reno v. Am. Civil Liberties Union, 521 U.S.

Complaint, New Media & Society (2014), https://pdfs.semanticscholar.

org/96e8/d4d6f325b9173fba4d17aadf1c5c6f48edbe.pdf (describing

user flags as “a ubiquitous mechanism of governance” online that

serves “as a solution to the problem of curating massive collections

of user-generated content”).

17. See Casey Newton, The Trauma Floor, The Verge,

Feb. 25, 2019, https://w w w.theverge.com/2019/2/25/18229714/

cognizant-facebook-content-moderator-interviews-trauma-workingconditions-arizona; Sarah T. Roberts, Meet the People Who Scar

Themselves to Clean Up Our Social Media Networks, Macleans,

June 15, 2018, https://www.macleans.ca/opinion/meet-the-peoplewho-scar-themselves-to-clean-up-our-social-media-networks/.

18. See Jennifer M. Urban et al., Notice and Takedown in

Everyday Practice, Univ. of Cal.–Berkeley Public Law Research

Paper No. 2755628 (Mar. 22, 2017), at 41 (noting that some platforms

honor all requests).

14

844, 880 (1997) (explaining that law prohibiting indecent

messages to minors online “would confer broad powers

of censorship, in the form of a ‘heckler’s veto,’ upon any

opponent of indecent speech”). Here the heckler’s veto is of

special concern because of the Encouragement Provision’s

broad and uncertain scope.

Artificial intelligence and algorithms do little to help.

Such tools have consistently proved faulty, and remove

content with little to no transparency or public oversight.19

Drawing the inherently contextual line between speech

that lawfully discusses immigration issues from speech

that, under the Encouragement Provision, unlawfully

expresses encouragement for noncitizens to reside

in the country is a daunting enough task for a human

being. It is an even more difficult one for a machine,

even if it were clear what the Encouragement provision

criminalized. Again, this difficulty is only exacerbated by

the uncertainty in the Encouragement Provision’s reach.

19. See generally Abdul Rahman Al Jaloud, Hadi Al Khatib,

Jeff Deutch, Dia Kayyali, and Jillian C. York, Caught in the Net:

The Impact of “Extremist” Speech Regulations on Human Rights

Content, Electronic Frontier Foundation et al. (May 2019), https://

www.eff.org/files/2019/05/30/caught_in_the_net_whitepaper_2019.

pdf (explaining that automated take-down systems are inaccurate

and opaque, and describing effect on marginalized speakers).

See also Bijan Stephen, Porn: You Know It When You See It,

But Can A Computer?, The Verge, Jan. 30, 2019, https://www.

theverge.com/2019/1/30/18202474/tumblr-porn-ai-nudity-artificialintelligence-machine-learning (explaining difficulty in training

artificial intelligence to parse content).

15

Internet platforms have little incentive to expend

enormous effort and resources in a Sisyphean battle to sift

through a massive volume of speech in order to precisely

identify user speech that the Encouragement Provision

prohibits. Instead, platforms seeking to minimize their

own criminal exposure under the statute are likely

to simply censor all expression about immigration

wholesale, or—perhaps even more troublingly—remove

all expression favoring an immigration policy based on

principles of inclusion and decriminalization because such

expression is likeliest to violate the statute, while allowing

speech favoring more restrictive and punitive immigration

policies to remain online. 20

As a result, even users seeking to engage in lawful

speech about immigration may find themselves refused

entry to the modern public square. Such a result would

stifle debate over one of the most important public issues

confronting the nation today.

20. The Provision’s “intent or effect of favoring some ideas over

others . . . raises the specter that the Government may effectively

drive certain ideas or viewpoints from the marketplace.” Reed v.

Town of Gilbert, 135 S. Ct. 2218, 2238 (2015) (Kagan, J., concurring

in the judgment) (citation omitted). Such laws are constitutionally

suspect and subject to the most exacting form of scrutiny. Id. See

also Resp. Br. at 43-47.

16

Conclusion

The Encouragement Provision threatens to stifle

the free exchange of ideas online about one of the most

contentious and important political questions of our

time. See United States v. Williams, 553 U.S. 285, 293

(2008). Such a result is antithetical to our nation’s unique

and profound commitment to the protection of speech. See

New York Times v. Sullivan, 376 U.S. at 270. In light of

the foregoing, the judgment of the Ninth Circuit should

be affirmed.

January 22, 2020

Respectfully submitted,

David Greene

Counsel of Record

Saira Hussain

Naomi Gilens

Electronic Frontier Foundation

815 Eddy Street

San Francisco, CA 94109

(415) 436-9333

davidg@eff.org

Attorneys for Amici Curiae