Is Federal Criminal Solicitation Unconstitutionally Overbroad?

“He who kills the president to save the country has broken no laws.” “If we’re planning murders, I’d like to suggest an orange one.” “Would someone just take care of it? Someone with the right skills and tools.” “Take the shot. We’ll deal with the fallout.”

Is it a crime – specifically, solicitation of the assassination of President Trump – to post messages like these (and dozens more) on microblogging sites like X and BlueSky? A jury in the Eastern District of Virginia just answered “no” by finding the person who posted those messages not guilty of soliciting a crime of violence in violation of federal criminal law 18 U.S.C. § 373. I’m the Federal Public Defender for the Eastern District of Virginia, and I represented him.

The case raised the following question: does the mere encouragement of another to commit a crime, without any additional inducement but with the requisite intent, constitute criminal solicitation?

If you skim the 2023 U.S. Supreme Court case United States v. Hansen, you might think the answer is yes. Hansen involved an offense that makes it unlawful to encourage or induce an alien to unlawfully come to, enter, or reside in the United States, and the Court limited the scope of the offense to criminal solicitation and aiding and abetting. Hansen defines criminal solicitation as “the intentional encouragement of an unlawful act.”

But it’s also clear from the opinion that the Court defined “encouragement” in a “specialized, criminal-law sense” that is far narrower than its ordinary meaning. As the dissenters point out, an offense limited to criminal solicitation should exclude a grandmother who merely encourages her noncitizen grandchild to move illegally to the United States. To avoid holding that the statute was unconstitutionally overbroad, the Court held that a statute that prohibits “encouragement” of unlawful immigration requires proof of more than mere “encouragement,” as that term is ordinarily understood, of unlawful immigration.

Nonetheless, criminal law treatises imply a broader definition of criminal solicitation offenses. Wayne Lafave’s treatise Substantive Criminal Law, for example, explains that “the essence of the crime of solicitation is ‘asking a person to commit a crime,’ [and] it ‘requires neither a direction to proceed nor the fulfillment of any conditions,’ nor, for that matter, a quid pro quo.” According to that treatise, advising, counseling, encouraging, entreating, importuning, and urging are all equivalent to requesting that someone else commit a crime. Section 5.02 of the Model Penal Code similarly defines criminal solicitation broadly to encompass speech that requests another to commit any offense. Like the federal solicitation statute, which prohibits anyone who “solicits, commands, induces, or otherwise endeavors to persuade” another person to commit a violent crime, the Model Penal Code proscribes “command[ing], encourag[ing], or request[ing].”

But what of the First Amendment? At the time of the founding, it was a crime to “compass” or imagine the death of the King, and saying as much out loud was a form of treason. A representative government, by contrast, is premised on the idea that vehement opposition to the President is not a crime. The principle “that opposition to [the government’s] abuses is not treason,” the Supreme Court has explained, “had made our government tolerant of opposition based on differences of opinion that in some parts of the world would have kept the hangman busy.”

The Supreme Court’s 1969 landmark decision in Brandenburg v. Ohio even bars the government from prohibiting “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.” According to Brandenburg, “mere advocacy, unrelated to its tendency to produce forcible action[,]” remains protected speech.

The Court has thus explained that “[t]he mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it.” Indeed, it has noted that words like, “I encourage you to obtain child pornography,” although certainly advocating that someone commit a crime, remains protected by the First Amendment.

So how do we reconcile the crime of solicitation on the one hand with the First Amendment’s protection for speech that encourages others to violate the law on the other?

According to the federal prosecutors in the Eastern District of Virginia, speech that satisfies the elements of criminal solicitation is categorically excluded from First Amendment protection, which they argued protects only theoretical statements justifying violence in the abstract. Just as certain narrow categories of speech such as obscenity, “true threats,” fighting words, and offers to engage in illegal transactions are categorically excluded from First Amendment protection, the prosecutors argued, so is speech that amounts to a criminal solicitation.

The problem with this argument is that it fails to explain the First Amendment’s protection of what the Court has described as “’mere advocacy’ of illegal acts—a kind of speech falling within the First Amendment’s core[.]” If speech advocating or encouraging others to commit unlawful acts, without more, satisfies the elements of solicitation and can be prohibited, there’s nothing left of Brandenburg’s holding.

U.S. District Judge Anthony Trenga thus instructed the jury that the First Amendment protects “speech that merely, without more, encourages or advocates that others should engage in violence—even violence against political figures or the government—at some indefinite point in the future.” The court then explained that if the jury determined that the defendant’s conduct satisfied the elements of federal solicitation of a crime of violence, 18 U.S.C. § 373, it must then decide whether it constituted “the mere or abstract advocacy of violence or lawlessness at some indefinite time in the future,” and therefore was protected speech, or “was directed and likely to produce imminent lawlessness,” and thus unprotected by the First Amendment.

If the elements of criminal solicitation can be satisfied by “mere advocacy” – meaning pure speech encouraging others to commit a crime without providing any assistance, offers to partner or hire, or otherwise proposing to conspire, as the prosecutors maintained -- this was undoubtedly a correct instruction. It ensured that a conviction could not rest upon speech protected by the First Amendment. But it also means that criminal solicitation in violation of § 373 encompasses a significant amount of protected speech.

There’s an easier path to reconciling criminal solicitation and the First Amendment, which is to construe the elements of solicitation statutes to require more than mere advocacy — like the majority did in Hansen. As a 1997 DOJ report on the publication of bombmaking materials noted, “[i]n the prototypical solicitation case, the ‘persuasion’ is accompanied by some form of inducement, such as a money payment, or a threat. Such a case raises no First Amendment issues[.]” The report goes on, however, to observe that “insofar as Congress also intended § 373 to cover cases of ‘persuasion’ taking the form of mere advocacy or urging of unlawful action – without any threat or inducement – many such cases could be subject to significant First Amendment constraints under the Brandenburg doctrine.”

The legislative history of 18 U.S.C. § 373 reveals that Congress intended the crime of federal solicitation to require proof of a serious offer to conspire to commit a violent felony or engage in an illegal transaction to do so. As Senate Report 98-225, which accompanied the Comprehensive Crime Control Act of which § 373 is a part, explains, “[s]olicitation involves a hiring or partnership arrangement, designed to accomplish a specific action in violation of law, where the communication is an essential link in a direct chain leading to criminal action.” If that’s what the elements of the crime of federal solicitation required – proof of a serious offer to hire or partner with someone to commit a violent crime – then the offense of criminal solicitation would be categorically excluded from First Amendment protection. And no one, like my client, would be prosecuted for speech that falls within the core of the First Amendment’s protections.

Federal courts, First Amendment, Free Speech