United States v. Hansen ( 2023 )

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Volume 599 U. S. Part 1
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June 23, 2023
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762 OCTOBER TERM, 2022
Syllabus
UNITED STATES v. HANSEN
certiorari to the united states court of appeals for
the ninth circuit
No. 22–179. Argued March 27, 2023—Decided June 23, 2023
Respondent Helaman Hansen promised hundreds of noncitizens a path to
U. S. citizenship through “adult adoption.” But that was a scam.
Though there is no path to citizenship through “adult adoption,” Hansen
earned nearly $2 million from his scheme. The United States charged
Hansen with, inter alia, violating 8 U. S. C. § 1324(a)(1)(A)(iv), which
forbids “encourag[ing] or induc[ing] an alien to come to, enter, or reside
in the United States, knowing or in reckless disregard of the fact that
such [activity] is or will be in violation of law.” Hansen was convicted
and moved to dismiss the clause (iv) charges on First Amendment over-
breadth grounds. The District Court rejected Hansen's argument, but
the Ninth Circuit concluded that clause (iv) was unconstitutionally
overbroad.
Held: Because § 1324(a)(1)(A)(iv) forbids only the purposeful solicitation
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and facilitation of specifcPending Publication
acts known to violate
is not unconstitutionally overbroad. Pp. 769–785.
federal law, the clause
(a) Hansen's First Amendment overbreadth challenge rests on the
claim that clause (iv) punishes so much protected speech that it cannot
be applied to anyone, including him. A court will hold a statute facially
invalid under the overbreadth doctrine if the law “prohibits a substan-
tial amount of protected speech” relative to its “plainly legitimate
sweep.” United States v. Williams, 553 U. S. 285, 292. In such a cir-
cumstance, society's interest in free expression outweighs its interest in
the statute's lawful applications. Otherwise, courts must handle uncon-
stitutional applications as they usually do—case-by-case. Pp. 769–770.
(b) The issue here is whether Congress used “encourage” and “in-
duce” in clause (iv) as terms of art referring to criminal solicitation and
facilitation (thus capturing only a narrow band of speech) or instead as
those terms are used in ordinary conversation (thus encompassing a
broader swath). Pp. 770–774.
(1) Criminal solicitation is the intentional encouragement of an un-
lawful act, and facilitation—i. e., aiding and abetting—is the provision
of assistance to a wrongdoer with the intent to further an offense's com-
mission. Neither requires lending physical aid; for both, words may be
enough. And both require an intent to bring about a particular unlaw-
ful act. The terms “encourage” and “induce,” found in clause (iv), are
Cite as: 599 U. S. 762 (2023) 763
Syllabus
among the “most common” verbs used to denote solicitation and facilita-
tion. 2 W. LaFave, Substantive Criminal Law § 13.2(a). Their special-
ized usage is displayed in the federal criminal code as well as the crimi-
nal laws of every State. If the challenged statute uses those terms as
they are typically understood in the criminal law, an overbreadth chal-
lenge would be hard to sustain. Pp. 771–773.
(2) Hansen, like the Ninth Circuit, insists that clause (iv) uses “en-
courages” and “induces” in their ordinary rather than specialized sense.
In ordinary parlance, “induce” means “[t]o lead on; to infuence; to pre-
vail on; to move by persuasion or infuence,” Webster's New Interna-
tional Dictionary 1269, and “encourage” means to “inspire with courage,
spirit, or hope,” Webster's Third New International Dictionary 747. If
clause (iv) conveys these ordinary meanings, it arguably reaches ab-
stract advocacy or general encouragement, and its applications to pro-
tected speech might render it vulnerable to an overbreadth challenge.
Pp. 773–774.
(c) The Court holds that clause (iv) uses “encourages or induces” in
its specialized, criminal-law sense—that is, as incorporating common-
law liability for solicitation and facilitation. Pp. 774–778.
(1) Context indicates that Congress used those words as terms of
art. “Encourage” and “induce” have well-established legal meanings—
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and when Congress “borrows terms of art in which are accumulated the
legal tradition and meaning of centuries of practice, it presumably
knows and adopts the cluster of ideas that were attached to each bor-
rowed word.” Morissette v. United States, 342 U. S. 246, 263. That
inference is even stronger here, because clause (iv) prohibits “encourag-
ing” and “inducing” a violation of law, which is the object of solicitation
and facilitation too. The Ninth Circuit stacked the deck in favor of
ordinary meaning, but it should have given specialized meaning a fair
shake. When words have several plausible defnitions, context differen-
tiates among them. Here, the context of these words indicates that
Congress used them as terms of art. Pp. 774–775.
(2) Statutory history is an important part of the relevant context.
When Congress enacted in 1885 what would become the template for
clause (iv), it criminalized “knowingly assisting, encouraging or solicit-
ing” immigration under a contract to perform labor. 23 Stat. 333.
Then, as now, “encourage” had a specialized meaning that channeled
accomplice liability. And the words “assisting” and “soliciting,” which
appeared alongside “encouraging,” reinforce the narrower criminal-law
meaning. When Congress amended that provision in 1917, it added “in-
duce,” which also carried solicitation and facilitation overtones. 39
Stat. 879. In 1952, Congress enacted the immediate predecessor for
clause (iv) and also simplifed the language from the 1917 Act, dropping
764 UNITED STATES v. HANSEN
Syllabus
the words “assist” and “solicit,” and making it a crime to “willfully or
knowingly encourag[e] or induc[e], or attemp[t] to encourage or induce,
either directly or indirectly, the entry into the United States of . . . any
alien . . . not lawfully entitled to enter or reside within the United
States.” 66 Stat. 229. Hansen believes these changes dramatically
broadened the scope of clause (iv)'s prohibition on encouragement, but
accepting that argument would require the Court to assume that Con-
gress took a circuitous route to convey a sweeping—and constitutionally
dubious—message. The better understanding is that Congress simply
streamlined the previous statutory language. Critically, the terms
Congress retained (“encourage” and “induce”) substantially overlap in
meaning with the terms it omitted (“assist” and “solicit”). Clause (iv)
is thus best understood as a continuation of the past. Pp. 775–778.
(d) Hansen argues that the absence of an express mens rea require-
ment in clause (iv) means that the statute is not limited to solicitation
and facilitation. But when Congress placed “encourages” and “induces”
in clause (iv), the traditional intent associated with solicitation and facili-
tation was part of the package. The federal aiding and abetting statute
works the same way: It contains no express mens rea requirement but
implicitly incorporates the traditional state of mind required for aiding
and abetting. Rosemond v. United States, 572 U. S. 65, 70–71. Clause
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(iv) is situated among other provisions that function in the same manner.
See, e. g., §§ 1324(a)(1)(A)(v)(I), (II). Since “encourages or induces”
draws on the same common-law principles, clause (iv) also incorporates
a mens rea requirement implicitly. Pp. 778–781.
(e) Finally, it bears emphasis that the canon of constitutional avoid-
ance counsels the Court to adopt the Government's reading if it is at
least “ ``fairly possible.' ” Jennings v. Rodriguez, 583 U. S. –––, –––.
P. 781.
(f) Section 1324(a)(1)(A)(iv) reaches no further than the purposeful
solicitation and facilitation of specifc acts known to violate federal law.
So understood, it does not “prohibi[t] a substantial amount of protected
speech” relative to its “plainly legitimate sweep.” Williams, 553 U. S.,
at 292. It is undisputed that clause (iv) encompasses a great deal of
nonexpressive conduct, which does not implicate the First Amendment
at all, e. g., smuggling noncitizens into the country. Because these
types of cases are heartland clause (iv) prosecutions, the “plainly legiti-
mate sweep” of the provision is extensive. To the extent clause (iv)
reaches any speech, it stretches no further than speech integral to un-
lawful conduct, which is unprotected. See, e. g., Giboney v. Empire
Storage & Ice Co., 336 U. S. 490, 502. Hansen, on the other hand, fails
to identify a single prosecution for ostensibly protected expression in
the 70 years since Congress enacted clause (iv)'s immediate predecessor.
Cite as: 599 U. S. 762 (2023) 765
Syllabus
Instead, he offers a string of hypotheticals, all premised on the expan-
sive ordinary meanings of “encourage” and “induce.” None of these
examples are fltered through the traditional elements of solicitation and
facilitation—most importantly, the requirement that a defendant intend
to bring about a specifc result. Because clause (iv) does not have the
scope Hansen claims, it does not produce the horribles he parades.
Hansen also resists the idea that Congress can criminalize speech that
solicits or facilitates a civil violation, and some immigration violations
are only civil. But even assuming that clause (iv) reaches some pro-
tected speech, and even assuming that its application to all of that
speech is unconstitutional, the ratio of unlawful-to-lawful applications is
not lopsided enough to justify facial invalidation for overbreadth.
Pp. 781–785.
25 F. 4th 1103, reversed and remanded.
Barrett, J., delivered the opinion of the Court, in which Roberts,
C. J., and Thomas, Alito, Kagan, Gorsuch, and Kavanaugh, JJ., joined.
Thomas, J., fled a concurring opinion, post, p. 785. Jackson, J., fled a
dissenting opinion, in which Sotomayor, J., joined, post, p. 792.
Principal Deputy Solicitor General Fletcher argued the
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cause for the United States. On the briefs were Solicitor
General Prelogar, Assistant Attorney General Polite, Dep-
uty Solicitors General Feigin and Gannon, Matthew Guar-
nieri and J. Benton Hurst.
Esha Bhandari argued the cause for respondent. With
her on the brief were Heather E. Williams, Carolyn M. Wig-
gin, Jeffrey L. Fisher, David D. Cole, and Cecillia D. Wang.*
*Briefs of amici curiae urging reversal were fled for the State of Mon-
tana et al. by Austin Knudsen, Attorney General of Montana, Christian
B. Corrigan, Solicitor General, Kathleen L. Smithgall, Deputy Solicitor
General, and Peter M. Torstensen, Jr., Assistant Solicitor General, and by
the Attorneys General for their respective States as follows: Steve Mar-
shall of Alabama, Treg Taylor of Alaska, Kristin K. Mayes of Arizona,
Tim Griffn of Arkansas, Ashley Moody of Florida, Christopher M. Carr
of Georgia, Raúl R. Labrador of Idaho, Theodore E. Rokita of Indiana,
Brenna Bird of Iowa, Kris Kobach of Kansas, Daniel Cameron of Ken-
tucky, Lynn Fitch of Mississippi, Andrew Bailey of Missouri, Mike Hil-
gers of Nebraska, Dave Yost of Ohio, Gentner F. Drummond of Oklahoma,
Alan Wilson of South Carolina, Marty J. Jackley of South Dakota, Jona-
than Skrmetti of Tennessee, Ken Paxton of Texas, Sean D. Reyes of Utah,
766 UNITED STATES v. HANSEN
Opinion of the Court
Justice Barrett delivered the opinion of the Court.
A federal law prohibits “encourag[ing] or induc[ing]” ille-
gal immigration. 8 U. S. C. § 1324(a)(1)(A)(iv). After con-
cluding that this statute criminalizes immigration advocacy
and other protected speech, the Ninth Circuit held it uncon-
stitutionally overbroad under the First Amendment. That
was error. Properly interpreted, this provision forbids only
the intentional solicitation or facilitation of certain unlawful
acts. It does not “prohibi[t] a substantial amount of pro-
tected speech”—let alone enough to justify throwing out the
law's “plainly legitimate sweep.” United States v. Wil-
liams, 553 U. S. 285, 292 (2008). We reverse.
I
In 2014, Mana Nailati, a citizen of Fiji, heard that he could
become a U. S. citizen through an “adult adoption” program
run by Helaman Hansen. Eager for citizenship, Nailati few
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Jason Miyares of Virginia, Patrick Morrisey of West Virginia, and
Bridget Hill of Wyoming; and for the Immigration Reform Law Institute
by Lawrence J. Joseph and Christopher J. Hajec.
Briefs of amici curiae urging affrmance were fled for the City and
County of San Francisco, California, et al. by Tara M. Steeley, Jaime M.
Huling Delaye, and Molly Alarcon; for Asian Americans Advancing Jus-
tice|AAJC et al. by Niyati Shah and Emily T. Kuwahara; for the Elec-
tronic Frontier Foundation et al. by David Greene; for the First Amend-
ment Coalition et al. by Penny Venetis; for Immigration Representatives
et al. by William C. Perdue, Kolya D. Glick, and Sirine Shebaya; for the
National Association of Criminal Defense Lawyers et al. by Stephen R.
Sady, Jeffrey T. Green, Xiao Wang, and Meredith R. Aska McBride; for
Religious Organizations by Matthew S. Hellman, David A. Strauss, and
Sarah M. Konsky; for the Reporters Committee for Freedom of the Press
by Bruce D. Brown; and for The Rutherford Institute et al. by Erin Glenn
Busby, Lisa R. Eskow, Michael F. Sturley, John W. Whitehead, and Daniel
M. Ortner.
Briefs of amici curiae were fled for the Cato Institute by Clark M.
Neily III; for Pfzer Inc., by Douglas Hallward-Driemeier, Stefan P.
Schropp, and Ilana H. Eisenstein; and for Eugene Volokh by Mr. Volokh,
pro se.
Cite as: 599 U. S. 762 (2023) 767
Opinion of the Court
to California to pursue the program. Hansen's wife told
Nailati that adult adoption was the “quickest and easiest way
to get citizenship here in America.” App. 88. For $4,500,
Hansen's organization would arrange Nailati's adoption, and
he could then inherit U. S. citizenship from his new parent.
Nailati signed up.
It was too good to be true. There is no path to citizenship
through “adult adoption,” so Nailati waited for months with
nothing to show for it. Faced with the expiration of his visa,
he asked Hansen what to do. Hansen advised him to stay:
“[O]nce you're in the program,” Hansen explained, “you're
safe. Immigration cannot touch you.” Id., at 92. Believ-
ing that citizenship was around the corner, Nailati took Han-
sen's advice and remained in the country unlawfully.
Hansen peddled his scam to other noncitizens too. After
hearing about the program from their pastor, one husband
and wife met with Hansen and wrote him a check for
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$9,000—initially saved for a payment on a house in Mexico—
so that they could participate. Another noncitizen paid
Hansen out of savings he had accumulated over 21 years as
a housepainter. Still others borrowed from relatives and
friends. All told, Hansen lured over 450 noncitizens into his
program, and he raked in nearly $2 million as a result.
The United States charged Hansen with (among other
crimes) violations of § 1324(a)(1)(A)(iv). That clause forbids
“encourag[ing] or induc[ing] an alien to come to, enter, or
reside in the United States, knowing or in reckless disregard
of the fact that such coming to, entry, or residence is or will
be in violation of law.” In addition to convicting him under
clause (iv), the jury found that Hansen had acted “for the
purpose of private fnancial gain,” triggering a higher maxi-
mum penalty. App. 116; see § 1324(a)(1)(B)(i).
After the verdict came in, Hansen saw a potential way out.
Another case involving § 1324(a)(1)(A)(iv), United States v.
Sineneng-Smith, was pending before the Ninth Circuit,
which had sua sponte raised the question whether the clause
768 UNITED STATES v. HANSEN
Opinion of the Court
was an unconstitutionally overbroad restriction of speech.
910 F. 3d 461, 469 (2018). Taking his cue from Sineneng-
Smith, Hansen moved to dismiss the clause (iv) charges on
First Amendment overbreadth grounds. The District
Court rejected Hansen's argument and sentenced him.
While Hansen's appeal was pending, the Ninth Circuit held
in Sineneng-Smith that clause (iv) is unconstitutionally over-
broad. Id., at 467–468. That holding was short-lived: We
vacated the judgment, explaining that the panel's choice to
inject the overbreadth issue into the appeal and appoint
amici to argue it “departed so drastically from the principle
of party presentation as to constitute an abuse of discretion.”
590 U. S. –––, ––– (2020). On remand, limited to the argu-
ments that Sineneng-Smith had actually made, the Ninth
Circuit affrmed her convictions. 982 F. 3d 766, 770 (2020).
But Hansen's appeal was waiting in the wings, giving the
Ninth Circuit a second chance to address the overbreadth
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question. It reprised its original holding in Sineneng-Smith.
As in Sineneng-Smith, the Ninth Circuit focused on
whether clause (iv) is a narrow prohibition covering solicita-
tion and facilitation of illegal conduct, or a sweeping ban that
would pull in “statements or conduct that are likely repeated
countless times across the country every day.” 25 F. 4th
1103, 1110 (2022). It adopted the latter interpretation, as-
serting that clause (iv) criminalizes speech such as “encour-
aging an undocumented immigrant to take shelter during
a natural disaster, advising an undocumented immigrant
about available social services, telling a tourist that she is
unlikely to face serious consequences if she overstays her
tourist visa, or providing certain legal advice to undocu-
mented immigrants.” Ibid. Concluding that clause (iv)
covers an “ ``alarming' ” amount of protected speech relative
to its narrow legitimate sweep, the Ninth Circuit held the
provision facially overbroad. Ibid.The Ninth Circuit denied the Government's petition for
rehearing en banc over the dissent of nine judges. Judge
Cite as: 599 U. S. 762 (2023) 769
Opinion of the Court
Bumatay, who wrote the principal dissent, attributed the
panel's overbreadth concern to a misreading of the statute.
See 40 F. 4th 1049, 1057–1058 (2022). Correctly interpreted,
he explained, clause (iv) reaches only criminal solicitation
and aiding and abetting. Ibid. On that reading, the pro-
vision raises no overbreadth problem because, “[e]ven if
§ 1324(a)(1)(A)(iv) somehow reaches protected speech, that
reach is far outweighed by the provision's broad legitimate
sweep.” Id., at 1072.
We granted certiorari. 598 U. S. ––– (2022).
II
The First Amendment provides that “Congress shall make
no law . . . abridging the freedom of speech.” Wisely, Han-
sen does not claim that the First Amendment protects the
communications for which he was prosecuted. Cf. Illinois
ex rel. Madigan v. Telemarketing Associates, Inc., 538 U. S.
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600, 612 (2003) (“[T]he First Amendment does not shield
fraud”). Instead, he raises an overbreadth challenge: He ar-
gues that clause (iv) punishes so much protected speech that
it cannot be applied to anyone, including him. Brief for Re-
spondent 9–10.
An overbreadth challenge is unusual. For one thing, liti-
gants typically lack standing to assert the constitutional
rights of third parties. See, e. g., Powers v. Ohio, 499 U. S.
400, 410 (1991). For another, litigants mounting a facial
challenge to a statute normally “must establish that no set
of circumstances exists under which the [statute] would be
valid.” United States v. Salerno, 481 U. S. 739, 745 (1987)
(emphasis added). Breaking from both of these rules, the
overbreadth doctrine instructs a court to hold a statute fa-
cially unconstitutional even though it has lawful applications,
and even at the behest of someone to whom the statute can
be lawfully applied.
We have justifed this doctrine on the ground that it pro-
vides breathing room for free expression. Overbroad laws
770 UNITED STATES v. HANSEN
Opinion of the Court
“may deter or ``chill' constitutionally protected speech,” and
if would-be speakers remain silent, society will lose their
contributions to the “marketplace of ideas.” Virginia v.
Hicks, 539 U. S. 113, 119 (2003). To guard against those
harms, the overbreadth doctrine allows a litigant (even an
undeserving one) to vindicate the rights of the silenced, as
well as society's broader interest in hearing them speak.
Williams, 553 U. S., at 292. If the challenger demonstrates
that the statute “prohibits a substantial amount of protected
speech” relative to its “plainly legitimate sweep,” then soci-
ety's interest in free expression outweighs its interest in the
statute's lawful applications, and a court will hold the law
facially invalid. Ibid.; see Hicks, 539 U. S., at 118–119.
Because it destroys some good along with the bad, “[i]nval-
idation for overbreadth is `` “strong medicine” ' that is not to
be ``casually employed.' ” Williams, 553 U. S., at 293. To
justify facial invalidation, a law's unconstitutional applica-
tions must be realistic, not fanciful, and their number must
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be substantially disproportionate to the statute's lawful
sweep. New York State Club Assn., Inc. v. City of New
York, 487 U. S. 1, 14 (1988); Members of City Council of Los
Angeles v. Taxpayers for Vincent, 466 U. S. 789, 800–801
(1984). In the absence of a lopsided ratio, courts must han-
dle unconstitutional applications as they usually do—case-
by-case.
III
A
To judge whether a statute is overbroad, we must frst
determine what it covers. Recall that § 1324(a)(1)(A)(iv)
makes it unlawful to “encourag[e] or induc[e] an alien to come
to, enter, or reside in the United States, knowing or in reck-
less disregard of the fact that such coming to, entry, or resi-
dence is or will be in violation of law.” 1 The issue is
1
Although the statutory terms are not coextensive, we use “alien” and
“noncitizen” as rough equivalents here. See 8 U. S. C. § 1101(a)(3); Barton
v. Barr, 590 U. S. –––, –––, n. 2 (2020).
Cite as: 599 U. S. 762 (2023) 771
Opinion of the Court
whether Congress used “encourage” and “induce” as terms
of art referring to criminal solicitation and facilitation (thus
capturing only a narrow band of speech) or instead as those
terms are used in everyday conversation (thus encompassing
a broader swath). An overbreadth challenge obviously has
better odds on the latter view.
1
We start with some background on solicitation and facilita-
tion. Criminal solicitation is the intentional encouragement
of an unlawful act. ALI, Model Penal Code § 5.02(1), p. 364
(1985) (MPC); 2 W. LaFave, Substantive Criminal Law § 11.1
(3d ed. 2022) (LaFave). Facilitation—also called aiding and
abetting—is the provision of assistance to a wrongdoer with
the intent to further an offense's commission. See, e. g.,
Twitter, Inc. v. Taamneh, 598 U. S. 471, 489–490 (2023).
While the crime of solicitation is complete as soon as the
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encouragement occurs, see LaFave § 11.1, liability for aiding
and abetting requires that a wrongful act be carried out, see
id., § 13.2(a). Neither solicitation nor facilitation requires
lending physical aid; for both, words may be enough. Reves
v. Ernst & Young, 507 U. S. 170, 178 (1993) (one may aid
and abet by providing “ ``assistance rendered by words, acts,
encouragement, support, or presence' ”); MPC § 5.02(2), at
365 (solicitation may take place through words or conduct);
LaFave § 11.1(c) (same). Both require an intent to bring
about a particular unlawful act. See, e. g., Hicks v. United
States, 150 U. S. 442, 449 (1893) (“[W]ords of encouragement
and abetting must” be used with “the intention as respects
the effect to be produced”). And both are longstanding
criminal theories targeting those who support the crimes of
a principal wrongdoer. See Central Bank of Denver, N. A.
v. First Interstate Bank of Denver, N. A., 511 U. S. 164, 181
(1994); LaFave § 11.1(a).
The terms “encourage” and “induce” are among the “most
common” verbs used to denote solicitation and facilitation.
Id., § 13.2(a); see also 1 J. Ohlin, Wharton's Criminal Law
772 UNITED STATES v. HANSEN
Opinion of the Court
§ 10:1, p. 298 (16th ed. 2021) (Wharton) (“[A]dditional lan-
guage—such as encourage, counsel, and command—usually
accompanies ``aid' or ``abet' ” (emphasis added)). In fact, their
criminal-law usage dates back hundreds of years. See 40
F. 4th, at 1062–1064 (opinion of Bumatay, J.). A prominent
early American legal dictionary, for instance, defnes “abet”
as “[t]o encourage or set another on to commit a crime.” 1 J.
Bouvier, Law Dictionary 30 (1839) (emphasis added). Other
sources agree. See, e. g., Wharton § 10:1, at 298 (“ ``abet,' ” at
common law, meant “to encourage, advise, or instigate the
commission of a crime” (emphasis added)); Black's Law Dic-
tionary 6 (1st ed. 1891) (to “abet” “[i]n criminal law” was
“[t]o encourage, incite, or set another on to commit a crime”
(emphasis added)); cf. id., at 667 (11th ed. 2019) (defning “en-
courage” with, in part, a cross-reference to “aid and abet”).
This pattern is on display in the federal criminal code,
which, for over a century, has punished one who “induces” a
crime as a principal. See Act of Mar. 4, 1909, § 332, 35 Stat.
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1152 (“Whoever . . . aids, abets, counsels, commands, induces,
or procures [the commission of an offense] is a principal” (em-
phasis added)); 18 U. S. C. § 2(a) (listing the same verbs
today). The Government offers other examples as well: The
ban on soliciting a crime of violence penalizes those who
“solici[t], comman[d], induc[e], or otherwise endeavo[r] to
persuade” another person “to engage in [the unlawful] con-
duct.” § 373(a) (emphasis added). Federal law also crimi-
nalizes “persuad[ing], induc[ing], entic[ing], or coerc[ing]”
one “to engage in prostitution” or other unlawful sexual
activity involving interstate commerce. §§ 2422(a), (b) (em-
phasis added). The Model Penal Code echoes these formula-
tions, defning solicitation as, in relevant part, “command-
[ing], encourag[ing] or request[ing] another person to en-
gage in specifc [unlawful] conduct.” MPC § 5.02(1), at 364
(emphasis added). And the commentary to the Model Penal
Code notes that similar prohibitions may employ other verbs,
such as “induce.” See id., Comment 3, at 372–373, n. 25 (col-
lecting examples).
Cite as: 599 U. S. 762 (2023) 773
Opinion of the Court
The use of both verbs to describe solicitation and facilita-
tion is widespread in the States too. Nevada considers
“[e]very person” who “aided, abetted, counseled, encouraged,
hired, commanded, induced or procured” an offense to be a
principal. Nev. Rev. Stat. § 195.020 (2021) (emphasis added).
Arizona provides that one who “commands, encourages, re-
quests, or solicits another person to engage in specifc con-
duct” commits the offense of solicitation. Ariz. Rev. Stat.
Ann. § 13–1002(A) (2020) (emphasis added). And New Mex-
ico imposes criminal liability on one who “with the intent”
for another to commit a crime “solicits, commands, requests,
induces . . . or otherwise attempts to promote or facilitate”
the offense. N. M. Stat. Ann. § 30–28–3(A) (2018) (emphasis
added). These States are by no means outliers—“induce” or
“encourage” describe similar offenses in the criminal codes
of every State. App. to Brief for State of Montana et al. as
Amici Curiae 1–44; see, e. g., Ala. Code § 13A–2–23(1) (2015)
(“induces”); Colo. Rev. Stat. § 18–1–603 (2022) (“encourages”);
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Fla. Stat. § 777.04(2) (2022) (“encourages”); Haw. Rev. Stat.
§ 705–510(1) (2014) (“encourages”); Ind. Code § 35–41–2–4
(2022) (“induces”); Kan. Stat. Ann. § 21–5303(a) (2020) (“en-
couraging”); N. D. Cent. Code Ann. § 12.1–06–03(1) (2021)
(“induces”); Tex. Penal Code Ann. § 7.02(a)(2) (West 2021)
(“encourages”); W. Va. Code Ann. § 61–11–8a(b)(1) (Lexis
2020) (“inducement”); Wyo. Stat. Ann. § 6–1–302(a) (2021)
(“encourages”).
In sum, the use of “encourage” and “induce” to describe
solicitation and facilitation is both longstanding and perva-
sive. And if 8 U. S. C. § 1324(a)(1)(A)(iv) refers to solicita-
tion and facilitation as they are typically understood, an
overbreadth challenge would be hard to sustain.
2
Hansen, like the Ninth Circuit, insists that clause (iv) uses
“encourages” and “induces” in their ordinary rather than
their specialized sense. While he offers defnitions from
multiple dictionaries, the terms are so familiar that two sam-
774 UNITED STATES v. HANSEN
Opinion of the Court
ples suffce. In ordinary parlance, “induce” means “[t]o lead
on; to infuence; to prevail on; to move by persuasion or in-
fuence.” Webster's New International Dictionary 1269 (2d
ed. 1953). And “encourage” means to “inspire with courage,
spirit, or hope.” Webster's Third New International Dic-
tionary 747 (1966).
In Hansen's view, clause (iv)'s use of the bare words “en-
courages” or “induces” conveys these ordinary meanings.
See Brief for Respondent 14. “[T]hat encouragement can
include aiding and abetting,” he says, “does not mean it is
restricted to aiding and abetting.” Id., at 25. And because
clause (iv) “proscribes encouragement, full stop,” id., at 14,
it prohibits even an “op-ed or public speech criticizing the
immigration system and supporting the rights of long-term
undocumented noncitizens to remain, at least where the
author or speaker knows that, or recklessly disregards
whether, any of her readers or listeners are undocumented.”
Id., at 17–18. If the statute reaches the many examples that
Page Proof Pending Publication
Hansen posits, its applications to protected speech might
swamp its lawful applications, rendering it vulnerable to an
overbreadth challenge.
B
We hold that clause (iv) uses “encourages or induces” in
its specialized, criminal-law sense—that is, as incorporating
common-law liability for solicitation and facilitation. In
truth, the clash between defnitions is not much of a contest.
“Encourage” and “induce” have well-established legal mean-
ings—and when Congress “borrows terms of art in which
are accumulated the legal tradition and meaning of centuries
of practice, it presumably knows and adopts the cluster of
ideas that were attached to each borrowed word.” Moris-
sette v. United States, 342 U. S. 246, 263 (1952); see also, e. g.,
United States v. Shabani, 513 U. S. 10, 13–14 (1994).
To see how this works, consider the word “attempts,”
which appears in clause (iv)'s next-door neighbors. See
§§ 1324(a)(1)(A)(i)–(iii). In a criminal prohibition, we would
Cite as: 599 U. S. 762 (2023) 775
Opinion of the Court
not understand “attempt” in its ordinary sense of “try.”
Webster's New Universal Unabridged Dictionary 133 (2d ed.
2001). We would instead understand it to mean taking “a
substantial step” toward the completion of a crime with the
requisite mens rea. United States v. Resendiz-Ponce, 549
U. S. 102, 107 (2007). “Encourages or induces” likewise car-
ries a specialized meaning. After all, when a criminal-law
term is used in a criminal-law statute, that—in and of itself—
is a good clue that it takes its criminal-law meaning. And
the inference is even stronger here, because clause (iv) pro-
hibits “encouraging” and “inducing” a violation of law. See
§ 1324(a)(1)(A)(iv). That is the focus of criminal solicitation
and facilitation too.
In concluding otherwise, the Ninth Circuit stacked the
deck in favor of ordinary meaning. See 25 F. 4th, at 1109–
1110; see also United States v. Hernandez-Calvillo, 39 F. 4th
1297, 1304 (CA10 2022) (“Our construction of [the verbs in
Page Proof Pending Publication
clause (iv)] begins with their ordinary meaning, not their
specialized meaning in criminal law”). But it should have
given specialized meaning a fair shake. When words have
several plausible defnitions, context differentiates among
them. That is just as true when the choice is between ordi-
nary and specialized meanings, see, e. g., Corning Glass
Works v. Brennan, 417 U. S. 188, 202 (1974) (“While a layman
might well assume that time of day worked refects one as-
pect of a job's ``working conditions,' the term has a different
and much more specifc meaning in the language of industrial
relations”), as it is when a court must choose among multiple
ordinary meanings, see, e. g., Muscarello v. United States,
524 U. S. 125, 127–128 (1998) (choosing between ordinary
meanings of “carry”). Here, the context of these words—
the water in which they swim—indicates that Congress used
them as terms of art.
Statutory history is an important part of this context. In
1885, Congress enacted a law that would become the tem-
plate for clause (iv). That law prohibited “knowingly assist-
776 UNITED STATES v. HANSEN
Opinion of the Court
ing, encouraging or soliciting” immigration under a contract
to perform labor. Act of Feb. 26, 1885, ch. 164, § 3, 23 Stat.
333 (1885 Act) (emphasis added). Then, as now, “encourage”
had a specialized meaning that channeled accomplice liability.
See 1 Bouvier, Law Dictionary 30 (“abet” means “[t]o encour-
age or set another on to commit a crime”); Black's Law Dic-
tionary 6 (1891) (to “abet” is “[t]o encourage, incite, or set
another on to commit a crime”). And the words “assisting”
and “soliciting,” which appeared alongside “encouraging” in
the 1885 Act, reinforce that Congress gave the word “encour-
aging” its narrower criminal-law meaning. See Dubin v.
United States, 599 U. S. 110, 124–125 (2023) (a word capable
of many meanings is refned by its neighbors, which often
“ ``avoid[s] the giving of unintended breadth to the Acts of
Congress' ”). Unsurprisingly, then, when this Court upheld
the 1885 Act against a constitutional challenge, it explained
that Congress “has the power to punish any who assist” in
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introducing noncitizens into the country—without suggest-
ing that the term “encouraging” altered the scope of the pro-
hibition. Lees v. United States, 150 U. S. 476, 480 (1893)
(emphasis added).
In the ensuing decades, Congress both added to and sub-
tracted from the “encouraging” prohibition in the 1885 Act.
Throughout, it continued to place “encouraging” alongside
“assisting” and “soliciting.” See Act of Mar. 3, 1903, § 5, 32
Stat. 1214–1215; Act of Feb. 20, 1907, § 5, 34 Stat. 900. Then,
in 1917, Congress added “induce” to the string of verbs. Act
of Feb. 5, 1917, § 5, 39 Stat. 879 (1917 Act) (making it a crime
“to induce, assist, encourage, or solicit, or attempt to induce,
assist, encourage, or solicit the importation or migration of
any contract laborer . . . into the United States”). Like “en-
courage,” the word “induce” carried solicitation and facilita-
tion overtones at the time of this enactment. See Black's
Law Dictionary 617 (1891) (defning “inducement” to mean
“that which leads or tempts to the commission of crime”).
In fact, Congress had just recently used the term in a catch-
Cite as: 599 U. S. 762 (2023) 777
Opinion of the Court
all prohibition on criminal facilitation. See Act of Mar. 4,
1909, § 332, 35 Stat. 1152 (“Whoever . . . aids, abets, counsels,
commands, induces, or procures [the commission of an of-
fense], is a principal” (emphasis added)). And as with “en-
courage,” the meaning of “induce” was clarifed and nar-
rowed by its statutory neighbors in the 1917 Act—“assist”
and “solicit.”
Congress enacted the immediate forerunner of the modern
clause (iv) in 1952 and, in doing so, simplifed the language
from the 1917 Act. Most notably, the 1952 version dropped
the words “assist” and “solicit,” instead making it a crime to
“willfully or knowingly encourag[e] or induc[e], or attemp[t]
to encourage or induce, either directly or indirectly, the entry
into the United States of . . . any alien . . . not lawfully enti-
tled to enter or reside within the United States.” Immigra-
tion and Nationality Act, § 274(a)(4), 66 Stat. 229. Three
decades later, Congress brought 8 U. S. C. § 1324(a)(1)(A)(iv)
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into its current form—still without the words “assist” or
“solicit.” Immigration Reform and Control Act of 1986,
§ 112(a), 100 Stat. 3382 (making it a crime to “encourag[e] or
induc[e] an alien to come to, enter, or reside in the United
States, knowing or in reckless disregard of the fact that such
coming to, entry, or residence is or will be in violation of
law”).
On Hansen's view, these changes dramatically broadened
the scope of clause (iv)'s prohibition on encouragement. Be-
fore 1952, he says, the words “assist” and “solicit” may have
cabined “encourage” and “induce,” but eliminating them sev-
ered any connection the prohibition had to solicitation and
facilitation. Brief for Respondent 25–26. In other words,
Hansen claims, the 1952 and 1986 revisions show that Con-
gress opted to make “protected speech, not conduct, a
crime.” Id., at 27.
We do not agree that the mere removal of the words “as-
sist” and “solicit” turned an ordinary solicitation and facilita-
tion offense into a novel and boundless restriction on speech.
778 UNITED STATES v. HANSEN
Opinion of the Court
Hansen's argument would require us to assume that Con-
gress took a circuitous route to convey a sweeping—and con-
stitutionally dubious—message. The better understanding
is that Congress simply “streamlined” the pre-1952 statutory
language—which, as any nonlawyer who has picked up the
U. S. Code can tell you, is a commendable effort. 40 F. 4th,
at 1066 (opinion of Bumatay, J.). In fact, the streamlined
formulation mirrors this Court's own description of the 1917
Act, which is further evidence that Congress was engaged in
a cleanup project, not a renovation. See United States v.
Lem Hoy, 330 U. S. 724, 727 (1947) (explaining that the 1917
Act barred “contract laborers, defned as persons induced or
encouraged to come to this country by offers or promises of
employment” (emphasis added)); id., at 731 (describing the
1917 Act as a “prohibition against employers inducing labor-
ers to enter the country” (emphasis added)). And critically,
the terms that Congress retained (“encourage” and “induce”)
substantially overlap in meaning with the terms it omitted
Page Proof Pending Publication
(“assist” and “solicit”). LaFave § 13.2(a). Clause (iv) is
best understood as a continuation of the past, not a sharp
break from it.
C
Hansen's primary counterargument is that clause (iv) is
missing the necessary mens rea for solicitation and facilita-
tion. Brief for Respondent 28–31. Both, as traditionally
understood, require that the defendant specifcally intend
that a particular act be carried out. Supra, at 771. “En-
courages or induces,” however, is not modifed by any ex-
press intent requirement. Because the text of clause (iv)
lacks that essential element, Hansen protests, it cannot possi-
bly be limited to either solicitation or facilitation.
Once again, Hansen ignores the longstanding history of
these words. When Congress transplants a common-law
term, the “ ``old soil' ” comes with it. Taggart v. Lorenzen,
587 U. S. –––, ––– – ––– (2019). So when Congress placed
“encourages” and “induces” in clause (iv), the traditional in-
Cite as: 599 U. S. 762 (2023) 779
Opinion of the Court
tent associated with solicitation and facilitation was part of
the package. That, in fact, is precisely how the federal
aiding-and-abetting statute works. It contains no express
mens rea requirement, providing only that a person who
“aids, abets, counsels, commands, induces or procures” a fed-
eral offense is “punishable as a principal.” 18 U. S. C. § 2(a).
Yet, consistent with “a centuries-old view of culpability,” we
have held that the statute implicitly incorporates the tradi-
tional state of mind required for aiding and abetting. Rose-
mond v. United States, 572 U. S. 65, 70–71 (2014).
Clause (iv) is situated among other provisions that work
the same way. Consider those that immediately follow it:
The frst makes it a crime to “engag[e] in any conspir-
acy to commit any of the preceding acts, ” 8 U. S. C.
§ 1324(a)(1)(A)(v)(I), and the second makes it a crime to “ai[d]
or abe[t] the commission of any of the preceding acts,”
§ 1324(a)(1)(A)(v)(II). Neither of these clauses explicitly
states an intent requirement. Yet both conspiracy and aid-
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ing and abetting are familiar common-law offenses that con-
tain a particular mens rea. See Rosemond, 572 U. S., at 76(aiding and abetting); Ocasio v. United States, 578 U. S. 282,
287–288 (2016) (conspiracy). Take an obvious example: If
the words “aids or abets” in clause (v)(II) were considered in
a vacuum, they could be read to cover a person who inadvert-
ently helps another commit a § 1324(a)(1)(A) offense. But a
prosecutor who tried to bring such a case would not succeed.
Why? Because aiding and abetting implicitly carries a
mens rea requirement—the defendant generally must intend
to facilitate the commission of a crime. LaFave § 13.2(b).
Since “encourages or induces” in clause (iv) draws on the
same common-law principles, it too incorporates them
implicitly.2
2
The Ninth Circuit believed that the Government's “solicitation and fa-
cilitation” reading of clause (iv) would create impermissible surplusage
with the aiding-and-abetting provision in clause (v)(II). 25 F. 4th 1103,
1108–1109 (2022). Hansen does not press that argument before this
780 UNITED STATES v. HANSEN
Opinion of the Court
Still, Hansen reiterates that if Congress had wanted to
require intent, it could easily have said so—as it did else-
where in clause (iv). The provision requires that the de-
fendant encourage or induce an unlawful act and that the
defendant “kno[w]” or “reckless[ly] disregard” the fact that
the act encouraged “is or will be in violation of law. ”
§ 1324(a)(1)(A)(iv). Yet while Congress spelled out this re-
quirement, it included no express mens rea element for “en-
courages or induces.” Indeed, Hansen continues, the stat-
ute used to require that the encouragement or inducement
be committed “willfully or knowingly,” but Congress deleted
those words in 1986. Brief for Respondent 30. Taken to-
gether, Hansen says, this evidence refects that Congress
aimed to make a defendant liable for “encouraging or induc-
ing” without respect to her state of mind.
But there is a simple explanation for why “encourages or
induces” is not modifed by an express mens rea require-
ment: There is no need for it. At the risk of sounding like
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a broken record, “encourage” and “induce,” as terms of art,
carry the usual attributes of solicitation and facilitation—
including, once again, the traditional mens rea. Congress
might have rightfully seen the express mens rea require-
ment as unnecessary and cut it in a further effort to stream-
line clause (iv). And in any event, the omission of the unnec-
essary modifer is certainly not enough to overcome the
“presumption of scienter” that typically separates wrongful
acts “from ``otherwise innocent conduct.' ” Xiulu Ruan v.
United States, 597 U. S. –––, ––– (2022); see also Elonis v.
United States, 575 U. S. 723, 736–737 (2015).
Nor does the scienter applicable to a distinct element
within clause (iv)—that the defendant “kno[w]” or “reck-
less[ly] disregard . . . the fact that” the noncitizen's “coming
Court—for good reason. Clause (iv) criminalizes the aiding and abetting
of an immigration violation, whereas clause (v)(II) prohibits the aiding and
abetting of “any of the preceding acts.” In other words, clause (v)(II)
applies to aiding and abetting a frst-line facilitator. Another difference:
Clause (iv) criminalizes not only facilitation, but solicitation too.
Cite as: 599 U. S. 762 (2023) 781
Opinion of the Court
to, entry, or residence is or will be in violation of law”—tell
us anything about the mens rea for “encourages or induces.”
Many criminal statutes do not require knowledge of illegal-
ity, but rather only “ ``factual knowledge as distinguished
from knowledge of the law.' ” Bryan v. United States, 524
U. S. 184, 192 (1998). So Congress's choice to specify a men-
tal state for this element tells us something that we might
not normally infer, whereas the inclusion of a mens rea re-
quirement for “encourages or induces” would add nothing.
It bears emphasis that even if the Government's reading
were not the best one, the interpretation is at least “ ``fairly
possible' ”—so the canon of constitutional avoidance would
still counsel us to adopt it. Jennings v. Rodriguez, 583 U. S.
–––, ––– (2018). This canon is normally a valuable ally for
criminal defendants, who raise the prospect of unconstitu-
tional applications to urge a narrower construction. But
Hansen presses the clause toward the most expansive read-
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ing possible, effectively asking us to apply a canon of “ ``con-
stitutional collision.' ” 40 F. 4th, at 1059 (opinion of Buma-
tay, J.). This tactic is understandable in light of the odd
incentives created by the overbreadth doctrine, but it is also
wrong. When legislation and the Constitution brush up
against each other, our task is to seek harmony, not to manu-
facture confict.3
IV
Section 1324(a)(1)(A)(iv) reaches no further than the pur-
poseful solicitation and facilitation of specifc acts known to
violate federal law. So understood, the statute does not
“prohibi[t] a substantial amount of protected speech” rela-
tive to its “plainly legitimate sweep.” Williams, 553 U. S.,
at 292.
3
The canon of constitutional avoidance is a problem for the dissent. At-
tempting to overcome it, Justice Jackson suggests that the canon has
less force in the context of an overbreadth challenge. Post, at 807–808.
Our cases offer no support for that proposition. In this context, as in
others, ordinary principles of interpretation apply.
782 UNITED STATES v. HANSEN
Opinion of the Court
Start with clause (iv)'s valid reach. Hansen does not dis-
pute that the provision encompasses a great deal of non-
expressive conduct—which does not implicate the First
Amendment at all. Brief for Respondent 22–23. Consider
just a few examples: smuggling noncitizens into the country,
see United States v. Okatan, 728 F. 3d 111, 113–114 (CA2
2013); United States v. Yoshida, 303 F. 3d 1145, 1148–1151
(CA9 2002), providing counterfeit immigration documents,
see United States v. Tracy, 456 Fed. Appx. 267, 269–270 (CA4
2011) (per curiam); United States v. Castillo-Felix, 539 F. 2d
9, 11 (CA9 1976), and issuing fraudulent Social Security num-
bers to noncitizens, see Edwards v. Prime, Inc., 602 F. 3d
1276, 1295–1297 (CA11 2010). A brief survey of the Federal
Reporter confrms that these are heartland clause (iv) pros-
ecutions. See 40 F. 4th, at 1072 (opinion of Bumatay, J.)
(listing additional examples, including arranging fraudulent
marriages and transporting noncitizens on boats). So the
“plainly legitimate sweep” of the provision is extensive.
Page Proof Pending Publication
When we turn to the other side of the ledger, we fnd it
pretty much blank. Hansen fails to identify a single prose-
cution for ostensibly protected expression in the 70 years
since Congress enacted clause (iv)'s immediate predecessor.
Instead, he offers a string of hypotheticals, all premised on
the expansive ordinary meanings of “encourage” and “in-
duce.” In his view, clause (iv) would punish the author of an
op-ed criticizing the immigration system, “[a] minister who
welcomes undocumented people into the congregation and
expresses the community's love and support,” and a govern-
ment offcial who instructs “undocumented members of the
community to shelter in place during a natural disaster.”
Brief for Respondent 16–19. Yet none of Hansen's examples
are fltered through the elements of solicitation or facilita-
tion—most importantly, the requirement (which we again re-
peat) that a defendant intend to bring about a specifc result.
See, e. g., Rosemond, 572 U. S., at 76. Clause (iv) does not
have the scope Hansen claims, so it does not produce the
horribles he parades.
Cite as: 599 U. S. 762 (2023) 783
Opinion of the Court
To the extent that clause (iv) reaches any speech, it
stretches no further than speech integral to unlawful con-
duct.4 “[I]t has never been deemed an abridgement of free-
dom of speech or press to make a course of conduct illegal
merely because the conduct was in part initiated, evidenced,
or carried out by means of language, either spoken, written,
or printed.” Giboney v. Empire Storage & Ice Co., 336 U. S.
490, 502 (1949). Speech intended to bring about a particular
unlawful act has no social value; therefore, it is unprotected.
Williams, 553 U. S., at 298. We have applied this principle
many times, including to the promotion of a particular piece
of contraband, id., at 299, solicitation of unlawful employ-
ment, Pi ttsburgh Press Co. v. Pi ttsburgh 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.5
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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 appli-
cations of § 1324(a)(1)(A)(iv) are permissible—in fact, he con-
4
We also note that a number of clause (iv) prosecutions (like Hansen's)
are predicated on fraudulent representations through speech for personal
gain. See, e. g., United States v. Sineneng-Smith, 982 F. 3d 766, 776 (CA9
2020); United States v. Kalu, 791 F. 3d 1194, 1198–1199 (CA10 2015).
“[F]alse claims [that] are made to effect a fraud or secure moneys or other
valuable considerations” are not protected by the First Amendment.
United States v. Alvarez, 567 U. S. 709, 723 (2012) (plurality opinion).
These examples increase the list of lawful applications.
5
Overbreadth doctrine traffcks in hypotheticals, so we do not (and can-
not) hold that all future applications of clause (iv) will be lawful, nor do we
suggest that they will necessarily fall into the speech-integral-to-conduct
category. That would require a crystal ball. Nothing in our opinion
today precludes a litigant from bringing an as-applied challenge to clause
(iv) in the future—whether based on the First Amendment or another
constitutional constraint.
784 UNITED STATES v. HANSEN
Opinion of the Court
cedes that he would lose if clause (iv) covered only solicita-
tion 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 facili-
tates 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 crim-
inal 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 Ami-
cus Curiae 5–7. If this theory is sound, then clause (iv)
Page Proof Pending Publication
reaches some expression that is outside the speech-integral-
to-unlawful-conduct exception. Of course, “that speech is
not categorically unprotected does not mean it is immune
from regulation, but only that ordinary First Amendment
scrutiny would apply.” Brief for Respondent 44.
We need not address this novel theory, because even if
Hansen is right, his overbreadth challenge fails. To suc-
ceed, he has to show that clause (iv)'s overbreadth is “sub-
stantial . . . relative to [its] plainly legitimate sweep.” Wil-
liams, 553 U. S., at 292. As we have discussed, the
provision has a wide legitimate reach insofar as it applies to
nonexpressive conduct and speech soliciting or facilitating
criminal violations of immigration law. Even assuming that
clause (iv) reaches some protected speech, and even assum-
ing that its application to all of that speech is unconstitu-
tional, the ratio of unlawful-to-lawful applications is not lop-
sided enough to justify the “strong medicine” of facial
invalidation for overbreadth. Broadrick v. Oklahoma, 413
U. S. 601, 613 (1973). In other words, Hansen asks us to
Cite as: 599 U. S. 762 (2023) 785
Thomas, J., concurring
throw out too much of the good based on a speculative shot
at the bad. This is not the stuff of overbreadth—as-applied
challenges can take it from here.
* * *
The judgment of the Ninth Circuit is reversed, and the
case is remanded for further proceedings consistent with
this opinion.
It is so ordered.
Justice Thomas, concurring.
I join the Court's opinion in full. I write separately to
emphasize how far afeld the facial overbreadth doctrine has
carried the Judiciary from its constitutional role. The facial
overbreadth doctrine “purports to grant federal courts the
power to invalidate a law” that is constitutional as applied to
the party before it “ ``if a substantial number of its appli-
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cations are unconstitutional, judged in relation to the stat-
ute's plainly legitimate sweep.' ” Americans for Prosperity
Foundation v. Bonta, 594 U. S. –––, ––– (2021) (Thomas, J.,
concurring in part and concurring in judgment) (quoting
United States v. Sineneng-Smith, 590 U. S. –––, ––– (2020)
(Thomas, J., concurring)). As I have explained, this doc-
trine “lacks any basis in the text or history of the First
Amendment, relaxes the traditional standard for facial chal-
lenges,” and distorts the judicial role. Id., at –––.
There is no question that the First Amendment does not
shield respondent's scheme from prosecution under 8 U. S. C.
§ 1324(a)(1)(A)(iv), which prohibits “encourag[ing] or induc-
[ing] an alien to come to, enter, or reside in the United
States, knowing or in reckless disregard of the fact that such
coming to, entry, or residence is or will be in violation of
law.” Respondent defrauded nearly 500 aliens by telling
them that they could become U. S. citizens through adult
adoption; he charged them up to $10,000 apiece, knowing full
well that his scheme would not lead to citizenship. The
786 UNITED STATES v. HANSEN
Thomas, J., concurring
Ninth Circuit even acknowledged below that “it is clear,”
both “from previous convictions under the statute . . .
and likely from [respondent's] conduct here, that [§ 1324(a)
(1)(A)(iv)] has at least some ``plainly legitimate sweep.' ”
25 F. 4th 1103, 1106–1107 (2022).
Yet, instead of applying Congress' duly enacted law to re-
spondent, the Ninth Circuit held the statute unconstitutional
under this Court's facial overbreadth doctrine. Specifcally,
it took the doctrine as license to “speculate about imaginary
cases and sift through an endless stream of fanciful hypothet-
icals,” from which it concluded that the statute may be un-
constitutional as applied to other (hypothetical) individuals
in other (hypothetical) situations. 40 F. 4th 1049, 1071
(2022) (Bumatay, J., dissenting from denial of rehearing en
banc) (internal quotation marks omitted). It then tallied up
those hypothetical constitutional violations and determined
that they were “substantial” enough to warrant holding the
Page Proof Pending Publication
law unconstitutional in toto. 25 F. 4th, at 1109–1111. That
line of reasoning starkly demonstrates that this Court's facial
overbreadth doctrine offers a license for federal courts to act
as “roving commissions assigned to pass judgment on the
validity of the Nation's laws.” Broadrick v. Oklahoma, 413
U. S. 601, 610–611 (1973) (majority opinion of White, J.).
Such “roving commissions” are hardly a new idea. When
they met in 1787, the Constitution's Framers were well
aware of a body that wielded such power: the New York
Council of Revision (Council). Created by the New York
Constitution of 1777, the Council consisted of the Governor,
the Chancellor, and the judges of the New York Supreme
Court. 2 B. Poore, The Federal and State Constitutions, Co-
lonial Charters, and Other Organic Laws of the United
States 1328, 1332 (2d ed. 1878). Noting that “laws inconsist-
ent with the spirit of this constitution, or with the public
good, may be hastily and unadvisedly passed,” section III of
the New York Constitution required the two Houses of the
New York Legislature to present “all bills which have passed
Cite as: 599 U. S. 762 (2023) 787
Thomas, J., concurring
the senate and assembly” to the “council for their revisal
and consideration.” Ibid. The Council's power “to revise
legislation” meant that, if it “objected to any measure of a
bill, it would return a detailed list of its objections to the
legislature,” which “could change the bill to conform to those
objections, override” them by a two-thirds vote of both
Houses, “or simply let the bill die.” J. Barry, Comment: The
Council of Revision and the Limits of Judicial Power, 56
U. Chi. L. Rev. 235, 245 (1989) (Barry) (emphasis deleted).1
The grounds for the Council's vetoes “ranged from an act
being ``inconsistent with the spirit of the Constitution' to an
act being passed without ``the persons affected thereby hav-
ing an opportunity of being heard' ” to an act being “ ``incon-
sistent with the public good.' ” Id., at 245–246 (alteration
and footnote omitted).
At frst, the Council was a well-respected institution, and
several prominent delegates to the Philadelphia Convention
sought to replicate it in the Federal Constitution. Resolu-
Page Proof Pending Publication
tion 8 of the Virginia Plan proposed a federal council of revi-
sion composed of “the Executive and a convenient number of
the National Judiciary” that would have “authority to exam-
ine [and veto] every act of the National Legislature before it
shall operate.” 1 Records of the Federal Convention of
1787, § 8, p. 21 (M. Farrand ed. 1911) (Farrand). The Coun-
cil's veto would “be fnal . . . unless the Act of the National
Legislature be again passed.” Ibid.; see also J. Malcolm,
Whatever the Judges Say It Is? The Founders and Judicial
Review, 26 J. L. & Politics 1, 30–33 (2010).
The proponents of a council were clear that they sought to
empower judges to pass upon not only the constitutionality
of laws, but also their policy. One of the council's main sup-
porters, James Wilson, stated that the council would share
1
The term “revise” was understood to mean “[t]o review.” 2 S. John-
son, A Dictionary of the English Language (4th ed. 1773); N. Bailey, A
Universal Etymological English Dictionary (22 ed. 1770) (“to review, to
look over again”).
788 UNITED STATES v. HANSEN
Thomas, J., concurring
the New York Council's power of reviewing laws, not only
on constitutional grounds, but also to determine if they were
“unjust,” “unwise,” “dangerous,” or “destructive.” 2 Far-
rand 73. Such a power was needed, according to Wilson,
because the ordinary judicial power of refusing to apply un-
constitutional laws in cases or controversies did not include
the authority to decline to give effect to a law on policy
grounds. Ibid. The other leading proponent of a council,
James Madison, similarly argued that the council would veto
“laws unwise in their principle, or incorrect in their form.”
1 id., at 139. For Madison, the council was necessary to
remedy the defect caused by the limits of judicial power:
Judges could not prevent the “pursuit of . . . unwise & unjust
measures.” 2 id., at 74. In that vein, George Mason simi-
larly argued that a council was needed to prevent “unjust
oppressive or pernicious” laws from taking effect. Id., at 78.
Signifcantly, proponents of a council rejected the premise
that judicial power included a power to refuse to apply a law
Page Proof Pending Publication
for policy reasons. In fact, “[n]either side thought judges
would or should be authorized to make policy—whether
couched in the language of justice or rights—through their
exercise of the judicial power. . . . [T]he debate over a council
of revision was made necessary . . . because . . . not a single
delegate on either side of the debate proposed or supported
having judges perform a policymaking role from the
bench.” J. Anderson, Learning From the Great Council of
Revision Debate, 68 Rev. Politics 79, 99–100 (2006). From
that shared premise, the council's proponents argued that
such an institution was needed precisely because it would be
incompatible with judicial duty to take policy concerns into
account in adjudicating cases. See J. Mitchell, The Writ-of-
Erasure Fallacy, 104 Va. L. Rev. 933, 963 (2018).2
2
Later statements of the proposed council's supporters confrm their
understanding that the judicial station is incompatible with making policy
judgments. See Moodie v. Ship Phoebe Anne, 3 Dall. 319 (1796) (Els-
worth, C. J.) (“Suggestions of policy and conveniency cannot be considered
Cite as: 599 U. S. 762 (2023) 789
Thomas, J., concurring
Despite the support of respected delegates like Wilson and
Madison, the Convention voted against creating a federal
council of revision on four different occasions. P. Ham-
burger, Law and Judicial Duty 511 (2008). No other pro-
posal was considered and rejected so many times. Ibid.Like the council's supporters, opponents of the proposal un-
derstood that the judicial power is only the authority to “re-
solve private disputes between particular parties,” rather
than “matters affecting the general public.” Barry 255.
Working from that shared premise, they reasoned that it was
“ ``quite foreign from the nature of [the judicial] offce to make
them judges of the policy of public measures,' ” as “ ``[n]o
maxim was better established' than that ``the power of mak-
ing ought to be kept distinct from that of expounding, the
law.' ” Ibid. (quoting 1 Farrand 97–98 (E. Gerry); 2 id., at
75 (C. Strong)); see also 1 id., at 140 (J. Dickinson). Indeed,
opponents observed that “the Judges” were “of all men the
most unft to” have a veto on laws before their enactment.
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2 id., at 80 (J. Rutledge). This was so not only because
judges could not be “presumed to possess any peculiar
knowledge of the mere policy of public measures,” id., at 73(N. Ghorum), but also because, to preserve judicial integrity,
they “ought never to give their opinion on a law till it comes
before them” as an issue for decision in a concrete case or
controversy, id., at 80 (J. Rutledge); see also Perez v. Mort-
gage Bankers Assn., 575 U. S. 92, 121 (2015) (Thomas, J.,
concurring in judgment) (“[J]udicial involvement in such a
council would foster internal biases”). Opponents thus con-
cluded that to include judges in the policy decisions inherent
in the legislative process would be a “dangerous innovation,”
one that would erode public confdence in their ability to per-
form their “proper offcial character.” 2 Farrand 75–76
(L. Martin); see also id., at 77 (“[T]he Supreme Judiciary
in the judicial determination of a question of right”); 8 Writings of James
Madison 387 (G. Hunt ed. 1908) (“[Q]uestions of policy and expediency, are
unsusceptible of judicial cognizance and decision”).
790 UNITED STATES v. HANSEN
Thomas, J., concurring
should have the confdence of the people. This will soon be
lost, if they are employed in the task of remonstrating
ag[ainst] popular measures of the Legislature”).
The later history of the New York Council of Revision
demonstrates the wisdom of the Framers' decision. The
Council naturally became politicized through its intrusive
involvement in the legislative process. Over the course of
its existence, it returned 169 bills to the legislature; the leg-
islature, in turn, overrode only 51 of those vetoes and reen-
acted at least 26 bills with modifcations. Barry 245.
Moreover, “[t]he Council did not shrink from tough stands on
controversial or politically charged issues.” Id., at 246.
For example, early in its existence, it vetoed a bill barring
those convicted of adultery from remarrying and one that
declared Loyalists aliens. Ibid. Decades later, it very
nearly blocked the bill authorizing the Erie Canal's construc-
tion for policy reasons. P. Bernstein, Wedding of the Wa-
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ters: The Erie Canal and the Making of a Great Nation 197–
199 (2005). Some members of the Council opposed the bill
due to “concern[s] about committing the state to this huge
project before public opinion was more clearly and more em-
phatically in favor.” Id., at 198. Others were concerned
that the legislation gave the canal commission arbitrary pow-
ers. Ibid. The canal legislation—one of the most important
measures in the Nation's history—survived the Council's re-
view only because Chancellor James Kent changed his decid-
ing vote at the last minute, seemingly on a whim. Id., at 199.
The Council contributed to its own abolition in 1820, when
it vetoed a bill passed by the legislature that called for a
convention to revise New York's Constitution. 1 C. Lincoln,
The Constitutional History of New York 623–626 (1906) (Lin-
coln). The State Assembly then issued a report lambasting
“the Council for usurping the legislature's role as the demo-
cratic representative of the people”; the legislature sub-
sequently enacted a new bill that succeeded in calling for
Cite as: 599 U. S. 762 (2023) 791
Thomas, J., concurring
a constitutional convention. Barry 247; Lincoln 626–629.
The same sentiment arose at the convention when, echoing
arguments that had also been made in Philadelphia against
a federal council of revision, opponents of the Council argued
that it had “ ``usurped the power of judging the expediency
as well as the constitutionality of bills passed by the legisla-
ture' ” and that it had “ ``in fact become a third branch of
the legislature.' ” Barry 247 (quoting N. Carter & W. Stone,
Reports of the Proceedings and Debates of the Convention
of 1821, pp. 55, 79 (1821)). Unsurprisingly, the Council was
abolished, and New York's 1821 Constitution placed the veto
power solely in the Governor. Barry 248.
When courts apply the facial overbreadth doctrine, they
function in a manner strikingly similar to the federal council
of revision that the Framers rejected. The doctrine con-
templates that courts can declare laws unconstitutional in
the abstract without the law ever being applied against any
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individual in an unconstitutional manner. Along the way,
courts must examine the sum total of the law's application
to people who are not parties to any proceeding; courts then
weigh the law's various applications to determine if any un-
constitutional applications outweigh the law's constitutional
sweep or might “chill” protected speech. That is nothing
short of a society-wide policy determination of the sort that
legislatures perform. Yet, the Court has never even at-
tempted to ground this doctrine “in the text or history
of the First Amendment.” Sineneng-Smith, 590 U. S., at
––– – ––– (concurring opinion). Instead, it has justifed it
“solely by reference to” yet another layer of “policy consider-
ations and value judgments” about “what serves the public
good.” Id., at ––– – –––. As the debate over the federal
council of revision demonstrates, this approach is fundamen-
tally inconsistent with judicial duty.
This case demonstrates just how far courts have drifted
from their original station of adjudicating the rights of the
792 UNITED STATES v. HANSEN
Jackson, J., dissenting
parties before them in accordance with law.3 In an appro-
priate case, we should carefully reconsider the facial over-
breadth doctrine.
Justice Jackson, with whom Justice Sotomayor joins,
dissenting.
At bottom, this case is about how to interpret a statute
that prohibits “encourag[ing] or induc[ing]” a noncitizen “to
come to, enter, or reside in the United States” unlawfully.
8 U. S. C. § 1324(a)(1)(A)(iv). The Court reads that broad
language as a narrow prohibition on the intentional solicita-
tion or facilitation of a specifc act of unlawful immigration—
and it thereby avoids having to invalidate this statute under
our well-established First Amendment overbreadth doctrine.
But the majority departs from ordinary principles of statu-
tory interpretation to reach that result. Specifcally, it
rewrites the provision's text to include elements that Con-
gress once adopted but later removed as part of its incremen-
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tal expansion of this particular criminal law over the last
century.
It is neither our job nor our prerogative to retroft federal
statutes in a manner patently inconsistent with Congress's
3
The facial overbreadth doctrine is but one manifestation of the Court's
larger drift away from the limited judicial station envisioned by the Con-
stitution. See J. Malcolm, Whatever the Judges Say It Is? The Founders
and Judicial Review, 26 J. L. & Politics 1, 36–37 (2010). Justices have long
noted that doctrines tasking judges with passing upon the policy of laws
in the abstract resemble the council of revision the Framers rejected.
See, e. g., Lewis v. New Orleans, 415 U. S. 130, 136 (1974) (Blackmun, J.,
joined by Burger, C. J., and Rehnquist, J., dissenting) (overbreadth and
vagueness doctrines); see also Trimble v. Gordon, 430 U. S. 762, 778 (1977)
(Rehnquist, J., dissenting) (suspect classifcations under the Fourteenth
Amendment); Griswold v. Connecticut, 381 U. S. 479, 513–515 (1965)
(Black, J., joined by Stewart, J., dissenting) (substantive due process);
Goldberg v. Kelly, 397 U. S. 254, 273–274 (1970) (Black, J., dissenting) (due
process for welfare benefts); Saia v. New York, 334 U. S. 558, 571 (1948)
(Jackson, J., dissenting) (review of time, place, and manner speech
regulations).
Cite as: 599 U. S. 762 (2023) 793
Jackson, J., dissenting
choices. Moreover, by acquiescing to the Government's
newly minted pitch to narrow this statute in order to save
it,1 the majority undermines the goal of the overbreadth doc-
trine, which aims to keep overly broad statutes off the books
in order to avoid chilling constitutionally protected speech.
See Dombrowski v. Pfster, 380 U. S. 479, 486–487 (1965).
Because the majority's interpretation of § 1324(a)(1)(A)(iv)
diverges from the text and history of the provision, and si-
multaneously subverts the speech-protective goals of the
constitutional doctrine plainly implicated here, I respect-
fully dissent.
I
Section 1324(a)(1)(A)(iv) makes it a federal crime to “en-
courag[e] or induc[e]” a noncitizen “to come to, enter, or re-
side in the United States, knowing or in reckless disregard
of the fact that such coming to, entry, or residence is or will
be in violation of law.” For ease of reference, I will refer to
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this as the “encouragement provision.”
Respondent Hansen argues that the encouragement provi-
sion is unconstitutional under our First Amendment over-
breadth doctrine, and the Ninth Circuit below agreed. Nei-
ther the Government nor the majority disputes that
conclusion if the statute is read according to its plain terms.
And, indeed, when read literally, the encouragement provi-
sion prohibits so much protected speech that it appears to
qualify as overbroad under our precedents.
A
A statute is overbroad—and thus facially invalid—if “a
substantial number of its applications are unconstitutional,
judged in relation to the statute's plainly legitimate sweep.”
United States v. Stevens, 559 U. S. 460, 473 (2010) (internal
1
Previously, even the Government rejected the majority's view of the
statute's scope at trial, when it was seeking to convict the defendant. See
Part III, infra.
794 UNITED STATES v. HANSEN
Jackson, J., dissenting
quotation marks omitted). The overbreadth inquiry thus
generally requires comparing the First Amendment-
protected expression that a statute impermissibly punishes,
on the one hand (let's call that “category one”), with the un-
protected speech and conduct that the statute validly prohib-
its, on the other (“category two”).
Starting with category one: With respect to the sweep of
the plain text of the encouragement provision, there is no
dispute that, “[i]n ordinary parlance, ``induce' means ``[t]o lead
on; to infuence; to prevail on; to move by persuasion or in-
fuence,' ” and “ ``encourage' means to ``inspire with courage,
spirit, or hope.' ” Ante, at 774. Thus, on its face, the en-
couragement provision's use of the terms “encourage” and
“induce” seems to encompass any and all speech that merely
persuades, infuences, or inspires a noncitizen to come to,
enter, or reside in this country in violation of law.
If speech of this nature is, in fact, suffcient to trigger po-
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tential prosecution under this statute, the provision would
put all manner of protected speech in the Government's
prosecutorial crosshairs. It would reach, for example, the
grandmother who says she misses her noncitizen grandchild,
leading the grandchild to move illegally to the United States.
It would also apply to the doctor who informs a noncitizen
patient that a necessary medical treatment is more readily
available in the United States, infuencing the patient to stay
beyond the expiration of his visa to await treatment. The
college counselor who advises an undocumented student that
she can obtain a private scholarship to attend college in the
United States, inspiring the student to reside here, would
also fall within the scope of the statute.
The encouragement provision, on this broad reading,
would also punish abstract advocacy of illegal conduct, even
though such speech is plainly permissible under the First
Amendment. For instance, the plain text of the statute ap-
pears to prohibit a person from saying to a noncitizen who
has no authorization to reside here, “I encourage you to live
Cite as: 599 U. S. 762 (2023) 795
Jackson, J., dissenting
in the United States.” But that speech is plainly protected.
See United States v. Williams, 553 U. S. 285, 298–300 (2008).
In Williams, this Court explained that “abstract advocacy”
of child pornography—including the phrase “I encourage you
to obtain child pornography”—qualifes as protected speech,
even though the “recommendation of a particular piece of
purported child pornography with the intent of initiating a
transfer” is properly proscribed by federal statute. Ibid.(internal quotation marks omitted); see also, e. g., Ashcroft v.
Free Speech Coalition, 535 U. S. 234, 253 (2002) (“The mere
tendency of speech to encourage unlawful acts is not a suff-
cient reason for banning it”).
B
The Government does not dispute that the encouragement
provision is unconstitutional as overbroad if it is read accord-
ing to its plain text, thereby reaching these various fact pat-
terns. This point is worth repeating: Under the broad inter-
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pretation of the statute, the Government does not even
attempt to argue that the unconstitutional applications in
category one are not “substantial,” Stevens, 559 U. S., at 473,
in relation to the constitutional applications that fall in cate-
gory two.2 Rather, the Government argues that the statute
can be saved from falling victim to today's overbreadth chal-
lenge by construing the broad terms of the encouragement
provision narrowly—and, in particular, reading them as au-
thorizing prosecution only for solicitation or facilitation.
Citing this Court's general duty “to seek harmony, not to
manufacture confict,” when “legislation and the Constitution
brush up against each other,” ante, at 781, the majority
obliges. But this Court also has a duty to refrain from tak-
ing the legislative reins and revising the text of a statute.
2
There is accordingly no need to dwell on the contents of category two
here. The majority discusses several examples, like “issuing fraudulent
Social Security numbers to noncitizens.” Ante, at 782 (citing Edwards v.
Prime, Inc., 602 F. 3d 1276, 1295–1297 (CA11 2010)).
796 UNITED STATES v. HANSEN
Jackson, J., dissenting
It is well established that “[w]e will not rewrite a law to
conform it to constitutional requirements.” Stevens, 559
U. S., at 481 (emphasis added; alterations and internal quota-
tion marks omitted). Accordingly, and in the overbreadth
context in particular, the Court “may impose a limiting
construction on a statute only if it is ``readily susceptible' to
such a construction.” Ibid. (some internal quotation marks
omitted).
Application of our ordinary principles of statutory inter-
pretation here reveals that the encouragement provision is
not susceptible to the narrow solicitation or facilitation con-
struction that the majority adopts, as explained below.
Thus, this statute is overbroad and facially invalid under the
First Amendment.
II
The majority contends that the encouragement provision
uses “ ``encourage' ” and “ ``induce' ” in a “specialized, criminal-
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law sense,” under which those words are essentially synony-
mous with solicitation and facilitation and carry certain
narrowing features of those crimes. Ante, at 774. But that
construction of the statute is untenable for the reasons that
follow.
A
The majority starts its interpretation of the encourage-
ment provision “with some background on solicitation and
facilitation,” ante, at 771, instead of addressing any of the
terms in the encouragement provision itself. This is the frst
clue that the majority's statutory analysis is unusual. Ordi-
narily, we start with the text of the statute being interpreted.
Yet the words “solicitation” and “facilitation” appear nowhere
in the encouragement provision. (As the majority notes,
facilitation is “also called aiding and abetting,” ibid.—an-
other term that is absent from the encouragement provision.)
The majority goes on to explain that the terms that do
appear in the encouragement provision—“encourage” and
“induce”—are also often used (with other words) to defne
“solicitation” and “facilitation.” Ante, at 771–773. For ex-
Cite as: 599 U. S. 762 (2023) 797
Jackson, J., dissenting
ample, the majority notes that one legal dictionary “defnes
``abet' as ``[t]o encourage or set another on to commit a
crime,' ” and it cites other legal dictionaries that also use
“encourage” to defne “abet.” Ante, at 772. Similarly, the
majority observes that the federal “ban on soliciting a crime
of violence . . . penalizes those who ``solici[t], comman[d], in-
duc[e], or otherwise endeavo[r] to persuade' another person
``to engage in [the unlawful] conduct.' ” Ibid. Because the
terms “encourage” and “induce” are used to defne the
crimes of solicitation and facilitation, the majority concludes
that the statutory terms “ ``[e]ncourage' and ``induce' have
well-established legal meanings” that “incorporat[e] common-
law liability for solicitation and facilitation.” Ante, at 774.
This contention—that, because the broad terms that Con-
gress actually used are sometimes spotted in the defnition
of other, narrower words, the statute's broad terms are lim-
ited by the meaning of those narrower words and those
words' characteristics—is puzzling. The majority cites no
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precedent for this novel approach to interpreting words in a
statute. And its logic falls apart in light of the English lexi-
con and how dictionary defnitions tend to work.
Broad words are often used to defne narrower ones. So
the fact that a word is used to help defne another word does
not necessarily mean that the former is synonymous with the
latter or incorporates all of its connotations. For instance,
the word “furniture” might be used in the defnition of a
“chair,” but not all pieces of furniture are chairs, nor do all
pieces of furniture have four legs or other common chair-like
characteristics. Similarly, “to move” is used to defne “to
walk,” “to run,” and “to fy.” But that does not make these
four terms interchangeable.
So, too, here. The phrase “encourages or induces” is not
synonymous with “solicits” or “facilitates” (or “aids and
abets”). For example, among the other characteristics of so-
licitation and facilitation (discussed further in Part II–C,
infra) is the fact that they require “an intent to bring about
a particular unlawful act,” ante, at 771 (emphasis added). But
798 UNITED STATES v. HANSEN
Jackson, J., dissenting
the encouragement provision hints at no such thing. It
simply prohibits “encourag[ing] or induc[ing]” a nonciti-
zen “to come to, enter, or reside in the United States,
knowing or in reckless disregard of the fact that such com-
ing to, entry, or residence is or will be in violation of
law.” § 1324(a)(1)(A)(iv). Nor does the ordinary meaning
of “encourages or induces” carry the intent require-
ment that solicitation and facilitation do: By describing the
attractions of my hometown, for instance, I might end up
inducing a listener to move there, even if that was not my
intent.
It is also telling that the very next subdivision of
§ 1324(a)(1)(A) expressly prohibits “aid[ing] or abet[ting] the
commission of any of the preceding acts.” § 1324(a)
(1)(A)(v)(II). That provision indicates that Congress knows
how to create an aiding-and-abetting prohibition when it
wants to—and that it did not do so in § 1324(a)(1)(A)(iv).3
The majority's mere observation that the encouragement
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provision's terms are used to defne solicitation and facilita-
tion is thus insuffcient to establish that the terms mean the
same thing or incorporate the same features.
B
The majority next turns to “[s]tatutory history” to support
its transformation of the broad encouragement provision that
Congress wrote into a narrow solicitation or aiding-and-
abetting prohibition. Ante, at 775. I agree that the history
of a statute can reveal Congress's intent to use terms in a
narrower or specialized manner. But, here again, the par-
ticulars matter. And the history of this particular statute
only underscores that it cannot be read as the majority
3
This is not a surplusage argument. Cf. ante, at 779–780, n. 2. I agree
with the majority that clause (iv) and clause (v)(II) have different aims.
My point, instead, is that Congress's failure to use the classic “aids or
abets” language in clause (iv), which it deploys just next door in clause
(v)(II), should give us pause before concluding that we can read clause (iv)
as if it included the same terms.
Cite as: 599 U. S. 762 (2023) 799
Jackson, J., dissenting
wishes. At every turn, Congress has sought to expand the
reach of this criminal law, including by deleting the terms
and mens rea requirement that the majority attempts to
read back into the statute.
1
The history of the encouragement provision is a tale of
expansion. Up frst was an 1885 law focused specifcally on
contract labor. Ch. 164, 23 Stat. 332. It made “knowingly
assisting, encouraging or soliciting the migration or importa-
tion of ” a noncitizen into the United States “to perform labor
or service of any kind under contract or agreement” unlaw-
ful. § 3, id., at 333. Congress revised this prohibition in
1917, to add “induce.” § 5, 39 Stat. 879. Thus, as of the
early 20th century, it was a misdemeanor “to induce, assist,
encourage, or solicit . . . the importation or migration of any
contract laborer,” or to attempt to do the same. Ibid.Signifcantly for present purposes, in 1952, Congress de-
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leted the statute's references to solicitation and assistance—
leaving “encourages” and “induces” to stand alone. 66 Stat.
229. What is more, Congress expanded the prohibition to
all unlawful entry, not merely contract labor. Ibid. And it
also ratcheted up the punishment. Ibid. So amended, the
statute made it a felony to “willfully or knowingly encour-
ag[e] or induc[e], or attemp[t] to encourage or induce, either
directly or indirectly, the entry into the United States” of
any noncitizen who had not been “duly admitted” or who was
not “lawfully entitled to enter or reside within the United
States.” Ibid.Congress enacted the current version of the encour-
agement provision in 1986. It removed the mens rea re-
quirement relating to the encouragement or inducement
element—excising from the statute that a violator must
“willfully or knowingly” encourage or induce a noncitizen to
violate the immigration laws—while inserting a mens rea
requirement for knowledge or reckless disregard of the non-
citizen's immigration status. See Immigration Reform and
Control Act of 1986, § 112(a), 100 Stat. 3381–3382. Simulta-
800 UNITED STATES v. HANSEN
Jackson, J., dissenting
neously, and for the frst time, Congress made it a crime to
encourage or induce an unauthorized noncitizen not merely
to enter the United States, but also to encourage or induce
such a person to “reside” here unlawfully. Ibid.
Finally, in 1996, Congress crafted a separate penalty en-
hancement for certain kinds of violations. It raised the
maximum punishment from 5 years to 10 years of imprison-
ment if the offender violates the encouragement provision
“for the purpose of commercial advantage or private fnancial
gain.” § 1324(a)(1)(B)(i); see Illegal Immigration Reform
and Immigrant Responsibility Act of 1996, § 203(a), 110 Stat.
3009–565.
As these developments illustrate, Congress has repeatedly
revisited the scope of the encouragement provision. And, in
so doing, it has consistently expanded the reach and severity
of this criminal law from its modest 1885 origins. Most no-
tably, the particular amendments that Congress has made to
the encouragement provision demonstrate its intent to spe-
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cifcally reject the pillars of the majority's holding.
To reiterate: The terms “solicit” and “assist” appeared in
the text of the statute between 1885 and 1952, at which point
Congress removed them. Likewise, between 1952 and 1986,
violating this statute required that the speaker “willfully or
knowingly” encourage or induce a noncitizen to transgress
the immigration laws. But in 1986, Congress deleted this
primary mens rea requirement.
2
The majority's efforts to spin the encouragement provi-
sion's enlightening enactment history in favor of the majori-
ty's narrow interpretation are unavailing.
The majority frst points out that the 1885 version of
the encouragement provision criminalized “knowingly assist-
ing, encouraging or soliciting” certain immigration. § 3, 23
Stat. 333 (emphasis added); see ante, at 775–776. Because
the term “encouraging” was placed alongside “assisting” and
Cite as: 599 U. S. 762 (2023) 801
Jackson, J., dissenting
“soliciting” in this precursor provision, the majority main-
tains that the term “encouraging” is narrowed by the canon
of noscitur a sociis, “which counsels that a word is given
more precise content by the neighboring words with which
it is associated.” Williams, 553 U. S., at 294; see ante,
at 776. In Williams, the Court (in an opinion by Justice
Scalia) reasoned that, “[w]hen taken in isolation,” the broad
term “ ``promotes' ” is “susceptible of multiple and wide-
ranging meanings,” but that, “in a list that includes ``solicits,'
``distributes,' and ``advertises,' [it] is most sensibly read to
mean the act of recommending purported child pornography
to another person for his acquisition.” 553 U. S., at 294–295.
But, as the majority here ultimately goes on to acknowl-
edge, ante, at 777, the statutory word “encouraging” was not
actually accompanied by the narrower terms “soliciting” and
“assisting” throughout the course of this statute's history.
And for the history to be meaningfully referenced, the state
of the statute must be considered over time, not just at par-
Page Proof Pending Publication
ticular points in which words that seem to support a particu-
lar reading might have appeared. The delta between the
purportedly narrow version of the statute that the majority
points to, and what later happened to the statutory text, is
important—and there is no dispute that Congress later re-
moved the terms “soliciting” and “assisting” from the en-
couragement provision, leaving “encouraging” and “induc-
ing” to stand “in isolation,” 553 U. S., at 294. See ante,
at 777–778. Tracing the history over time clearly estab-
lishes that Congress deleted the very narrowing terms that
the majority now reads back into the statute.4
4
This revealing revision also sets apart the encouragement provision's
unadorned use of “encourages” and “induces” from the majority's long list
of state solicitation and facilitation laws. Ante, at 773. The majority in-
cludes that list in its effort to demonstrate that “encourages” and “in-
duces” in the encouragement provision actually mean “solicits” or “aids
and abets.” But in the vast majority of the cited statutes, classic narrow-
ing terms—like “aided,” “abetted,” “solicits,” “commands,” “hires,” “co-
erces,” or “compels”—appear alongside “encourages” or “induces.” Ibid.;
802 UNITED STATES v. HANSEN
Jackson, J., dissenting
The majority brushes off Congress's revision by speculat-
ing that Congress was merely “engaged in a cleanup project”
and was just “streamlin[ing]” the statutory language. Ante,
at 778. This contention, however, gets our ordinary pre-
sumption in statutory interpretation cases precisely back-
wards. We “usually presume differences in language . . .
convey differences in meaning,” absent some indication from
Congress to the contrary. BNSF R. Co. v. Loos, 586 U. S.
–––, ––– (2019) (internal quotation marks omitted). Thus,
we have found the presumption overcome where, for exam-
ple, Congress has expressly “billed” the changes as “effect[-
ing] only ``[t]echnical [a]mendments.' ” Id., at –––.
Here, the majority points to no signal from Congress that
it sought to change the encouragement provision's language
without changing its meaning. It seems that the only sup-
port the majority can muster for its “cleanup project” theory
is a 1947 Supreme Court case that at several points refers
to the statute as a prohibition on “encourag[ing]” or “in-
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duc[ing]” certain unlawful immigration. Ante, at 778 (citing
United States v. Lem Hoy, 330 U. S. 724 (1947)). From this,
the majority infers that, when Congress amended the en-
couragement provision fve years later to remove the words
“solicit” and “assist,” it must have been adopting Lem Hoy's
shorthand characterization of the statute. But the majority
fails to support this connection—tenuous on its face—with
any evidence that Congress actually consulted our 1947 deci-
sion when it drafted the 1952 amendments, or anything else
that might establish the primary signifcance that the major-
ity ascribes to our decision's phrasing.
The majority similarly characterizes Congress's decision
to remove the intent requirement from the statute in 1986
as “a further effort to streamline” the encouragement provi-
sion. Ante, at 780. In other words, the Court today holds
see App. to Brief for State of Montana et al. as Amici Curiae 1–44. Thus,
unlike the one before us, such statutes might well be susceptible of a nar-
rower reading.
Cite as: 599 U. S. 762 (2023) 803
Jackson, J., dissenting
that Congress's removal of “willfully or knowingly” in the
1986 amendments did not change the mens rea required to
violate this statute. But the majority offers no support at
all for its view that Congress didn't really mean for the
amendment to effect any substantive change. Instead, it
conjures up its own “simple explanation”: There was “no
need” for an explicit mens rea because “encourage” and “in-
duce” carry the mens rea associated with solicitation and
facilitation. Ibid. see also ante, at 778–779 (reasoning that
Congress's use of “encourages” and “induces” brought along
the “old soil” of “the traditional intent associated with solici-
tation and facilitation” (internal quotation marks omitted)).
Of course, this argument merely assumes that Congress in-
tended for “encourage” and “induce” as they appear in the
encouragement provision to mean “solicit” and “facilitate”; it
is a repackaging of the majority's unwarranted confation of
those terms. See Part II–A, supra.
The majority also invokes the presumption that a criminal
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law contains an intent requirement even where Congress
does not explicitly include one. Ante, at 780–781. But, here,
the statutory history undermines that presumption. Con-
gress most certainly focused on the mens rea question be-
cause it not only decided to remove “willfully or knowingly”
from the statute, it did so while inserting a separate mens
rea requirement for the knowledge of the noncitizen's immi-
gration status. The confuence of these choices implies that
Congress's removal of the primary mens rea requirement
was deliberate. And, when this deliberate choice is consid-
ered alongside the history of the provision's signifcant
expansions, there is ample cause to think that Congress in-
tended a substantive change in meaning.
C
Other features of the encouragement provision (beyond its
plain text and historical development) also suggest that Con-
gress did not mean for the statute to be construed in accord-
804 UNITED STATES v. HANSEN
Jackson, J., dissenting
ance with established characteristics of solicitation or aiding
and abetting. These features further highlight the poor ft
between this statute and the narrow solicitation/aiding-and-
abetting box into which the majority tries to squeeze Con-
gress's broad language.
Recall that, in 1986, Congress made it a crime to encourage
or induce a noncitizen not just to “come to” or “enter” the
United States, but also to “reside” in this country. 100 Stat.
3382; supra, at 799–800.5 As the majority notes, while it is
a crime for a noncitizen to enter the United States illegally,
it is generally not a crime—just a civil violation—to remain
in the United States without lawful status, such as when a
noncitizen overstays a visitor or student visa. See Arizona
v. United States, 567 U. S. 387, 407 (2012); see ante, at 784.
Thus, the encouragement provision on its face appears to
criminally punish someone who merely encourages or in-
duces a civil violation.6
That feature of the provision does not sit easily with its
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categorization as a solicitation or facilitation statute, be-
cause, ordinarily, a person may only be held criminally liable
5
As a side note: Congress's addition of “reside” might seem to sweep
in speakers who encouraged or induced noncitizens “who were already
unlawfully present in the U. S. to continue that unlawful presence.” 40
F. 4th 1049, 1073, n. 1 (CA9 2022) (Collins, J., dissenting from denial of
reh'g en banc). But as Judge Collins explained, the provision is “most
naturally read” to reach only “those who encourage or induce particular
[noncitizens] to acquire an unlawful presence or residence that they do
not already have.” Ibid. After all, “[o]ne does not normally speak of
``inducing' another to do what he or she is already doing.” Ibid. And the
principle of noscitur a sociis counsels in favor of such an understanding,
given that “the frst two listed verbs (``come to' and ``enter') plainly refer
to such an acquisition.” Ibid.6
Hansen takes issue with this feature of the statute, arguing that the
“ ``speech integral to criminal conduct' exception” to the First Amend-
ment'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 783,
n. 5, 784.
Cite as: 599 U. S. 762 (2023) 805
Jackson, J., dissenting
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 re-
sponsible 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, pro-
viding 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 mis-
demeanor; otherwise, “the solicitor [was] guilty of no of-
fense.” 1 J. Ohlin, Wharton's Criminal Law § 9:2 (16th ed.
2021) (Wharton's). Today, “in some jurisdictions, the of-
fense solicited may be a felony or a misdemeanor; but in oth-
ers, it can only be a felony”—either way, though, the underly-
ing offense must be criminal. Ibid. (footnotes omitted); see
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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 is
not an easy ft for the solicitation and facilitation role in
which the majority has cast it.
This statute is fundamentally different from aiding-and-
abetting liability and solicitation in other ways as well. As
noted, aiding-and-abetting liability is a form of vicarious lia-
bility—i. e., a way in which a person becomes liable for the
crimes of the principal. Likewise, for solicitation, “the pun-
ishment . . . is usually geared to . . . the punishment provided
for the offense solicited.” Wharton's § 9:11; see, e. g., 18
U. S. C. § 373(a) (providing, for example, punishment of “not
more than one-half the maximum term of imprisonment . . .
of the crime solicited”). But, notably, a person who violates
the encouragement provision is not punished as if he were a
principal of the underlying offense, nor does the prescribed
806 UNITED STATES v. HANSEN
Jackson, J., dissenting
punishment depend on the penalty for the underlying of-
fense. So, for example, even if the underlying immigration
offense is a civil violation, the person who encourages or in-
duces that infraction could be punished by up to 10 years'
imprisonment for violating the encouragement provision.
Unlike solicitation and facilitation, then, punishment for vio-
lation of the encouragement provision is not tied in any way
to the punishment prescribed for the underlying offense.
It is also telling that aiding-and-abetting liability (but not
solicitation) requires that the principal actually commit the
underlying offense. 2 W. LaFave, Substantive Criminal
Law § 13.3(c) (3d ed. 2018) (“[T]he guilt of the principal must
be established at the trial of the accomplice as a part of the
proof on the charge against the accomplice”). Yet, the en-
couragement provision on its face does not require that a
noncitizen actually enter or reside in the United States.
* * *
Page
For theseProof Pending
reasons, none Publication
of the traditional tools of statutory
interpretation makes the encouragement provision readily
susceptible to the majority's narrowing construction.
III
The majority nevertheless revises the statute, leaning on
the canon of constitutional avoidance. Ante, at 781.7 But
that canon “comes into play only when, after the application
of ordinary textual analysis, the statute is found to be sus-
ceptible of more than one construction.” Jennings v. Rodri-
guez, 583 U. S. –––, ––– (2018) (internal quotation marks
omitted). It does not give the Court license “to rewrite a
statute as it pleases.” Id., at –––. And, here, for the rea-
7
The majority implies that constitutional avoidance is a backup argu-
ment. Ante, at 781 (suggesting that its reading of the statute is the “best
one”). But, in my view, the text and history of the encouragement provi-
sion make it hard to get even close to the majority's narrow reading with-
out substantial reliance on the constitutional-avoidance principle.
Cite as: 599 U. S. 762 (2023) 807
Jackson, J., dissenting
sons explained above, it is clear that the majority has
mounted “a serious invasion of the legislative domain.” Ste-
vens, 559 U. S., at 481 (internal quotation marks omitted).
The majority's rescue mission is especially problematic be-
cause it is taking place in the context of a First Amendment
challenge to a statute on overbreadth grounds, as explained
below.
A
Overbreadth challenges are an “exception to the usual
rules governing standing,” a variation the Court has long
permitted in recognition of the “danger of tolerating, in the
area of First Amendment freedoms, the existence of a penal
statute susceptible of sweeping and improper application.”
Dombrowski, 380 U. S., at 486–487 (internal quotation marks
omitted). Absent overbreadth doctrine, “the contours of
regulation[s]” that impinge on the freedom of speech “would
have to be hammered out case by case—and tested only by
Page Proof Pending Publication
those hardy enough to risk criminal prosecution to deter-
mine the proper scope of regulation.” Id., at 487. We thus
allow defendants whose speech is constitutionally proscribed
by a statute (like Hansen) to argue that the statute is never-
theless facially invalid under the First Amendment on the
grounds that “a substantial number of its applications are
unconstitutional, judged in relation to the statute's plainly
legitimate sweep.” Stevens, 559 U. S., at 473 (internal quo-
tation marks omitted). By permitting this kind of chal-
lenge, the Court has “avoided making vindication of freedom
of expression await the outcome of protracted litigation.”
Dombrowski, 380 U. S., at 487.
If this Court is willing to redline Congress's work to save
it from unconstitutionality, it “sharply diminish[es] Con-
gress's incentive to draft a narrowly tailored law in the frst
place,” Stevens, 559 U. S., at 481 (internal quotation marks
omitted), which runs directly counter to overbreadth's goal
of limiting criminal laws that chill constitutionally protected
speech. Thus, in the particular context of an overbreadth
808 UNITED STATES v. HANSEN
Jackson, J., dissenting
challenge, countervailing constitutional concerns—namely,
that constitutionally protected speech will be chilled—must
be considered alongside the values that underpin our ordi-
nary canon of constitutional avoidance.
Heavy reliance on constitutional avoidance where statutes
would otherwise be facially overbroad also means that the
broad language in the particular statute remains on the
books—as compared to the alternative world, in which the
Court holds the statute unconstitutional as facially over-
broad and thereby prompts the enactment of a narrower
replacement. Ordinary people confronted with the encour-
agement provision, for instance, will see only its broad,
speech-chilling language. Even if they do consult this
Court's decision, and do recognize that it substantially nar-
rows the statute's scope, the Court's decision leaves many
things about future potential prosecutions up in the air.
For example, one does not know from today's determina-
tion whether a noncitizen must actually complete the under-
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lying offense of coming to, entering, or residing in the United
States (à la aiding and abetting) or whether completion is
not a prerequisite for prosecution (à la solicitation). This
sort of uncertainty—the clarifcation of which, by the way,
should be Congress's policy prerogative—may itself dissuade
people from engaging in protected speech.8 Thus, regard-
less of whether a potential speaker has the ability, means,
and time to track down and interpret this decision (or hire a
lawyer to do so) to understand what the law requires, the
known unknowns of the majority's course portend further
chill.
8
The Government also struggled at oral argument before this Court to
articulate what scenarios the statute would (and would not) reach under
its theory. But it notably represented that it did not believe it could val-
idly prosecute a son who reassures his noncitizen mother (who lives unlaw-
fully in the United States with him and his family) that she is not a burden
on them and that his children love having their grandmother around. See
Tr. of Oral Arg. 35.
Cite as: 599 U. S. 762 (2023) 809
Jackson, J., dissenting
B
The majority attempts to downplay the encouragement
provision's threat to free expression by highlighting that
Hansen “fails to identify a single prosecution for ostensibly
protected expression in the 70 years since Congress enacted
clause (iv)'s immediate predecessor.” Ante, at 782. But the
purported lack of past prosecutions provides no comfort for
several reasons.
The frst is that we have already said as much—this Court
squarely rejected that kind of argument when the Govern-
ment raised it in a prior overbreadth challenge. In Stevens,
the Government vigorously asserted that it had never
brought a prosecution implicating the kind of protected ex-
pression that the plain text of the statute in question swept
in, and that it did not intend to do so. 559 U. S., at 480.
The Government “hi[t] this theme hard, invoking its prosecu-
torial discretion several times.” Ibid. But we were not
moved: Such a prosecution was permitted by the statute, we
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noted, and that was enough to make it a serious threat.
“[T]he First Amendment protects against the Government;
it does not leave us at the mercy of noblesse oblige.” Ibid.Second, just as in Stevens, “[t]his prosecution is itself evi-
dence of the danger in putting faith in Government represen-
tations of prosecutorial restraint.” Ibid. At trial in this
very case, the Government objected to Hansen's proposed
jury instructions, which would have required, among other
things, that the Government prove that Hansen intended the
noncitizen in question to reside in the United States illegally.
The Government's objection was telling. It was based on
the argument that the proposed instructions added elements
not found in the text of the statute itself. And the District
Court was persuaded; it sided with the Government in that
regard.9 But now that the statute's validity hangs in the
9
As the Government conceded during oral argument before this Court,
given that its elements argument prevailed below, the instructions that
the District Court gave to the jury in this case were legally erroneous.
810 UNITED STATES v. HANSEN
Jackson, J., dissenting
balance, the Government has reversed course entirely—it
now implores us to read into the statute the very element
that it earlier opposed as atextual. See Brief for United
States 23–28.
This debacle exemplifes the real and ever-present risk of
continuing to have facially overbroad criminal statutes on
the books. In its role as prosecutor, the Government often
stakes out a maximalist position, only later to concede limits
when the statute upon which it relies might be struck down
entirely and the Government fnds itself on its back foot.10
I am not suggesting bad faith on anyone's part; these kinds
of turnabouts might well be chalked up to institutional incen-
tives and coordination challenges in a massive prosecutorial
system. But given these dynamics, the answer to whether
the Government has, as of today, prosecuted Hansen's hypo-
thetical scenarios may understandably provide cold comfort
to those living and working with immigrants.
In any event, it makes little sense for the number of uncon-
Page Proof Pending Publication
stitutional prosecutions to be the litmus test for whether
speech is being chilled by a facially overbroad statute. The
number of people who have not exercised their right to speak
out of fear of prosecution is, quite frankly, unknowable.
Moreover, criminal prosecutions are not the only method
by which statutes can be wielded to chill free speech. Han-
sen's amici detail how Customs and Border Protection (CBP)
relied on the encouragement provision to justify its creation
of a “watchlist” of potential speakers that CBP had compiled
in connection with its monitoring of a large group of mi-
grants—a list that included journalists simply reporting fac-
See Tr. of Oral Arg. 11; see also id., at 39–40 (acknowledging that the
Court “should send the case back to the Ninth Circuit and let the Ninth
Circuit decide what's appropriate in light of ” the fawed instructions).
10
The Court has seen similar moves in multiple cases just this Term.
See Ciminelli v. United States, 598 U. S. 306, 316–317 (2023); Percoco v.
United States, 598 U. S. 319, 332–333 (2023); Dubin v. United States, 599
U. S. 110, 115–116 (2023).
Cite as: 599 U. S. 762 (2023) 811
Jackson, J., dissenting
tual information about the group's progress. Brief for Re-
porters Committee for Freedom of the Press as Amicus
Curiae 5–6. CBP allegedly compiled dossiers on those re-
porters and singled them out as targets for special screen-
ings. Ibid. There can be no doubt that this kind of Gov-
ernment surveillance—targeted at journalists reporting on
an important topic of public concern, no less—tends to chill
speech, even though it falls short of an actual prosecution.
Hansen's amici also describe how a group of Members of
Congress recently sent a letter to three religious organiza-
tions that help undocumented immigrants, directing the or-
ganizations to preserve documents and communications re-
lated to their work in advance of a potential congressional
investigation into whether such organizations are “ ``harbor-
[ing], transport[ing], and encourag[ing] ' ” noncitizens to set-
tle unlawfully in this country. Brief for Religious Organiza-
tions as Amici Curiae 34 (emphasis added). Again, this
Page Proof Pending Publication
kind of letter invoking the language of the encouragement
provision can plainly chill speech, even though it is not a
prosecution (and, for that matter, even if a formal investiga-
tion never materializes).
The majority nevertheless derides the fears of Hansen and
his amici as an overimaginative “parad[e]” of “horribles.”
Ante, at 782. But what may seem “fanciful” to this Court
at great remove, ante, at 770, might well prove to be a sig-
nifcant obstacle for those on the ground who operate daily in
the shadow of the law. The “gravity” of the encouragement
provision's chilling effect is “underscored by the flings of . . .
amici curiae in support of ” Hansen—including briefs from
lawyers, immigration advocacy organizations, religious and
other charitable organizations, journalists, local govern-
ments, and nonproft policy institutions from across the ideo-
logical spectrum. Americans for Prosperity Foundation v.
Bonta, 594 U. S. –––, ––– (2021).
The substantial concerns that amici from such diverse
walks of life raise illustrate that the “deterrent effect feared
812 UNITED STATES v. HANSEN
Jackson, J., dissenting
by” Hansen and his amici “is real and pervasive.” Id.,at –––. Moreover, at the end of the day, those fears refect
a determination to view enacted statutes as serious business,
and, essentially, to take Congress at its word. This Court
should have done the same.
As written, the encouragement provision is overbroad.
Therefore, it should have been deemed facially unconstitu-
tional and invalid under the First Amendment, as the Ninth
Circuit held.
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Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
Page Proof Pending Publication
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
None