Cite as: 599 U. S. ____ (2023)
3
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 “induce,” which also carried solicitation and facilitation overtones. 39 Stat. 879. In 1952, Congress enacted the immediate predecessor for clause (iv) and also simplified the language from the 1917 Act, dropping 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 Congress 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. 11–13.
(d) Hansen argues that the absence of an express mens rea requirement 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 facilitation 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 (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. 13–16.
(e) Finally, it bears emphasis that the canon of constitutional avoidance counsels the Court to adopt the Government’s reading if it is at least “ ‘fairly possible.’ ” Jennings v. Rodriguez, 583 U. S. ___, ___. Pp. 16–17.
(f) Section 1324(a)(1)(A)(iv) reaches no further than the purposeful solicitation and facilitation of specific 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
