Whats the legality of prosecuting someone for doing something that is illegal in their home state, but legal in another state

[Martin_Hyde]

@Thing.Fish

I don’t get how that is an incorrect reading of the post, bearing in mind that the discussion of this issue was dicta and not the actual reason why the conviction was overturned. The appellant in Bigelow had purchased advertisements in newspapers published and distributed in Virginia, and was being prosecuted for that, not for referring women to providers in New York. So they were prosecuting him for things he had done in Virginia, not just for impure thoughts he had had in Virginia. It seems like the jurisdictional fig leaf in that case was actually much more credible than the “driving in a certain direction with evil intent is now a crime” approach of these new laws.

Specifically–if you think the ruling in Bigelow makes it clearly unconstitutional for Missouri to punish you for taking actions as part of actioned intent to commit some act outside Missouri, Bigelow makes no such determinations [if that was not what you were saying, I apologize for the misunderstanding, as we get further into the weeds it becomes difficult to keep track of all the hypotheticals and different claims being made]. It needs to be carefully understood–the entirety of the precedential ruling in Bigelow is saying that no state can infringe on the 1A rights of newspaper publishers for the reasons Virginia sought to do so. These are pure 1A claims, which are simply not involved in a purported law that criminalizes conspiracy to commit some specific act.

Let me repost the dicta that addresses what Virginia cannot do about things outside its borders:

Moreover, the placement services advertised in appellant’s newspaper were legally provided in New York at that time.[8] The Virginia Legislature could not have 823*823 regulated the advertiser’s activity in New York, and obviously could not have proscribed the activity in that State.[9] Huntington v. Attrill, 146 U. S. 657, 669 (1892). 824*824 Neither could Virginia prevent its residents from traveling to New York to obtain those services or, as the State conceded, Tr. of Oral Arg. 29, prosecute them for going there. See United States v. Guest, 383 U. S. 745, 757-759 (1966); Shapiro v. Thompson, 394 U. S. 618, 629-631 (1969); Doe v. Bolton, 410 U. S., at 200. Virginia possessed no authority to regulate the services provided in New York—the skills and credentials of the New York physicians and of the New York professionals who assisted them, the standards of the New York hospitals and clinics to which patients were referred, or the practices and charges of the New York referral services.

A State does not acquire power or supervision over the internal affairs of another State merely because the welfare and health of its own citizens may be affected when they travel to that State. It may seek to disseminate information so as to enable its citizens to make better informed decisions when they leave. But it may not, under the guise of exercising internal police powers, bar 825*825 a citizen of another State from disseminating information about an activity that is legal in that State.

Now what is this saying (and remember, it is dicta)

1. A state may not proscribe activity in another State
2. A state may not prevent a citizen from traveling to another state, or prosecute people for traveling to another state–more properly this cites United States v Guest, which pursuant to allowing a civil rights prosecution against conspirators in the murder of Lemuel Penn, establishes for sure that there is a “general” constitutional right to travel.
3. It may not bar a citizen of another State from disseminating information, specifically about things legal in that person’s State but really more broadly they are allowed to disseminate just about any information they want as per the 1A.

#2 would seem to fairly obviously support your claim that it would make this law unconstitutional, but unfortunately this is a situation where to get the “real story” you actually have to either be familiar with, or dig into, the cited cases. The statement in the 2nd point is supported by a reference to three precedents: Guest, Shapiro and Doe v Bolton.

Guest - establishes a general right to travel.
Shapiro - further establishes a general right to travel.
Doe v Bolton - strikes down a law on Roe grounds that affected travel.

Guest and Shapiro simply state what was already understood–that you have a right to travel between the States. However, if I walk into a police station in Virginia and tell a policeman, “I have a gun in my car and I plan to drive to New York tonight to murder someone”, he isn’t going to let me leave the station. The right to travel is not absolute, and in fact it is well understood it is subject to the proper police power of the State. The reason Virginia couldn’t stop its citizens from exercising their right to travel to get an abortion is because of Roe, in this case. So while the justices were certainly right, they of course were writing their opinion in the 1970s, not engaging in our somewhat silly hypothetical about a law that could be passed at some point in the future in the all too real likelihood that Roe is overturned, in which case the premise of their conclusion would no longer hold.

Now, let’s dispense with the hypothetical and say that I go into a police station and tell a policeman I’m traveling to say, Las Vegas to procure the services of a prostitute–activity that is illegal if done here in my home state of Virginia, but which, in state-approved brothels, is perfectly legal in Nevada. Could the Commonwealth of Virginia infringe on my travel to stop such act (assuming they passed relevant legislation)? That’s what we’d like to know, but unfortunately that we still do not clearly know from this case.

It should be also noted, in a footnote of his dissent (so we’re getting now into the real weeds) then-Justice Rehnquist took issue with how the majority court glibly summarized Huntington v. Attrill. Rehnquist specifically said this:

The Court, ante, at 822-823, relies on Huntington v. Attrill, 146 U.S. 657, 669 (1892), for its major premise that Virginia could not regulate the relations of the advertiser with its residents since these occurred in New York. To the extent that the Court reads Huntington to impose a rigid and unthinking territorial limitation, whose constitutional source is unspecified, on the power of the States to regulate conduct, it is plainly wrong. The passage referred to by the Court in the Huntington opinion is dictum and appears to be a statement of then-prevalent common-law rules rather than a constitutional holding. And the attempt to impose such a rigid limitation on the power of the States was first rejected by Mr. Justice Holmes, writing for the Court in Strassheim v. Daily, 221 U.S. 280, 285 (1911): “Acts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a State in punishing the cause of the harm as if he had been present at the effect . . . .” Mr. Justice McKenna in Hyde v. United States, 225 U.S. 347, 363 (1912), observed that “this must be so if we would fit the laws [421 U.S. 809, 835] and their administration to the acts of men and not be led away by mere `bookish theorick.'” See, e. g., Skiriotes v. Florida, 313 U.S. 69, 74 -75 (1941); Ford v. United States, 273 U.S. 593, 620 -621 (1927). To the extent that the Court’s conclusion that Virginia has a negligible interest in its statute proceeds from the assumption that the State was without power to regulate the extraterritorial activities of the advertiser involving Virginia residents, it is quite at war with our prior cases. [421 U.S. 809, 837]

Rehnquist obviously came loaded to bear with cites of his own–to other precedents that make a compelling case that the majority in its dicta about extra-territorial authority, was overbroad in its description of the State of the law, that it was possibly talking in a more common law sense, and that more firmly established court precedents are not so strictly defined as to what limits a State has on prosecutions it can conduct across jurisdictional lines. If you will, explore Rehnquist’s cites–they provide some interesting caselaw about things like the ability of States to prosecute across jurisdictional lines, jurisdictional limits, the locus of where crimes like conspiracy occur and et cetera. While interesting, none of them, unfortunately, directly settle the issue at hand as they all involve slightly different scenarios.

[PastTense]

See this case:

Teen’s jailing shows exactly how Facebook will help anti-abortion states