Jackson, J., dissenting
appears to criminally punish someone who merely encourages or induces a civil violation.[1]
That feature of the provision does not sit easily with its categorization as a solicitation or facilitation statute, because, ordinarily, a person may only be held criminally liable for aiding and abetting or solicitation when the underlying offense is itself a crime. Aiding-and-abetting liability is “a centuries-old view of culpability: that a person may be responsible for a crime he has not personally carried out if he helps another to complete its commission.” Rosemond v. United States, 572 U. S. 65, 70 (2014) (citing J. Hawley & M. McGregor, Criminal Law 81 (1899)); see also 18 U. S. C. §2(a) (the general federal aiding-and-abetting statute, providing that someone who “aids, abets, counsels, commands, induces or procures” the commission of a federal crime “is punishable as a principal”). As for solicitation, at common law, the solicited offense had to be a felony or a serious misdemeanor; otherwise, “the solicitor [was] guilty of no offense.” 1 J. Ohlin, Wharton’s Criminal Law §9:2 (16th ed. 2021) (Wharton’s). Today, “in some jurisdictions, the offense solicited may be a felony or a misdemeanor; but in others, it can only be a felony”—either way, though, the underlying offense must be criminal. Ibid. (footnotes omitted); see also 18 U. S. C. §373 (the general federal solicitation statute, which is limited to the solicitation of violent felonies).
Here, by contrast, the encouragement provision on its face appears to permit a person to be punished as a felon for merely encouraging a civil violation. Thus, the statute
- ↑ Hansen takes issue with this feature of the statute, arguing that the “ ‘speech integral to criminal conduct’ exception” to the First Amendment’s protection of free speech “does not permit the criminal punishment of speech encouraging only a civil law violation.” Brief for Respondent 39. The majority declines to address this argument, leaving it available in future as-applied challenges to this and other statutes. Ante, at 19, n. 5, 20.
