United States v. Hansen/Opinion of Justice Jackson
SUPREME COURT OF THE UNITED STATES
No. 22–179
UNITED STATES, PETITIONER v. HELAMAN HANSEN
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[June 23, 2023]
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 solicitation or facilitation of a specific 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 statutory interpretation to reach that result. Specifically, it rewrites the provision’s text to include elements that Congress once adopted but later removed as part of its incremental expansion of this particular criminal law over the last century.
It is neither our job nor our prerogative to retrofit federal statutes in a manner patently inconsistent with Congress’s 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 doctrine, which aims to keep overly broad statutes off the books in order to avoid chilling constitutionally protected speech. See Dombrowski v. Pfister, 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 simultaneously subverts the speech-protective goals of the constitutional doctrine plainly implicated here, I respectfully dissent.
I
Section 1324(a)(1)(A)(iv) makes it a federal crime to “encourag[e] or induc[e]” a noncitizen “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.” For ease of reference, I will refer to this as the “encouragement provision.”
Respondent Hansen argues that the encouragement provision is unconstitutional under our First Amendment overbreadth doctrine, and the Ninth Circuit below agreed. Neither 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 provision 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 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 unprotected speech and conduct that the statute validly prohibits, 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 ‘[to] lead on; to influence; to prevail on; to move by persuasion or influence,’ ” and “ ‘encourage’ means to ‘inspire with courage, spirit, or hope.’ ” Ante, at 9. Thus, on its face, the encouragement provision’s use of the terms “encourage” and “induce” seems to encompass any and all speech that merely persuades, influences, 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, sufficient to trigger potential 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, influencing 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 appears to prohibit a person from saying to a noncitizen who has no authorization to reside here, “I encourage you to live 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”—qualifies 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 sufficient reason for banning it”).
B
The Government does not dispute that the encouragement provision is unconstitutional as overbroad if it is read according to its plain text, thereby reaching these various fact patterns. This point is worth repeating: Under the broad interpretation 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 category two.[2] Rather, the Government argues that the statute can be saved from falling victim to today’s overbreadth challenge by construing the broad terms of the encouragement provision narrowly—and, in particular, reading them as authorizing prosecution only for solicitation or facilitation.
Citing this Court’s general duty “to seek harmony, not to manufacture conflict,” when “legislation and the Constitution brush up against each other,” ante, at 16–17, the majority obliges. But this Court also has a duty to refrain from taking the legislative reins and revising the text of a statute. 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 quotation 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 interpretation here reveals that the encouragement provision is not susceptible to the narrow solicitation or facilitation construction 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-law sense,” under which those words are essentially synonymous with solicitation and facilitation and carry certain narrowing features of those crimes. Ante, at 9. But that construction of the statute is untenable for the reasons that follow.
A
The majority starts its interpretation of the encouragement provision “with some background on solicitation and facilitation,” ante, at 6, instead of addressing any of the terms in the encouragement provision itself. This is the first clue that the majority’s statutory analysis is unusual. Ordinarily, 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.—another 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 define “solicitation” and “facilitation.” Ante, at 6–8. For example, the majority notes that one legal dictionary “defines ‘abet’ as ‘[t]o encourage or set another on to commit a crime,’ ” and it cites other legal dictionaries that also use “encourage” to define “abet.” Ante, at 7. Similarly, the majority observes that the federal “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] conduct.’ ” Ibid. Because the terms “encourage” and “induce” are used to define 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 or facilitation.” Ante, at 9.
This contention—that, because the broad terms that Congress actually used are sometimes spotted in the definition of other, narrower words, the statute’s broad terms are limited by the meaning of those narrower words and those words’ characteristics—is puzzling. The majority cites no precedent for this novel approach to interpreting words in a statute. And its logic falls apart in light of the English lexicon and how dictionary definitions tend to work.
Broad words are often used to define narrower ones. So the fact that a word is used to help define 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 definition 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 define “to walk,” “to run,” and “to fly.” 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 solicitation 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 6 (emphasis added). But the encouragement provision hints at no such thing. It simply prohibits “encourag[ing] or induc[ing]” a noncitizen “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.” §1324(a)(1)(A)(iv). Nor does the ordinary meaning of “encourages or induces” carry the intent requirement 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 provision’s terms are used to define solicitation and facilitation is thus insufficient 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 11. 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 particulars matter. And the history of this particular statute only underscores that it cannot be read as the majority 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 first was an 1885 law focused specifically on contract labor. Ch. 164, 23 Stat. 332. It made “knowingly assisting, encouraging or soliciting the migration or importation of” a noncitizen into the United States “to perform labor or service of any kind under contract or agreement” unlawful. §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.
Significantly for present purposes, in 1952, Congress deleted 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 encourag[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 encouragement provision in 1986. It removed the mens rea requirement 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 noncitizen’s immigration status. See Immigration Reform and Control Act of 1986, §112(a), 100 Stat. 3381–3382. Simultaneously, and for the first 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 enhancement for certain kinds of violations. It raised the maximum punishment from 5 years to 10 years of imprisonment if the offender violates the encouragement provision “for the purpose of commercial advantage or private financial 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 notably, the particular amendments that Congress has made to the encouragement provision demonstrate its intent to specifically 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 provision’s enlightening enactment history in favor of the majority’s narrow interpretation are unavailing.
The majority first points out that the 1885 version of the encouragement provision criminalized “knowingly assisting, encouraging or soliciting” certain immigration. §3, 23 Stat. 333 (emphasis added); see ante, at 11. Because the term “encouraging” was placed alongside “assisting” and “soliciting” in this precursor provision, the majority maintains 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 11. 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 acknowledge, ante, at 12, 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 particular points in which words that seem to support a particular 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 removed the terms “soliciting” and “assisting” from the encouragement provision, leaving “encouraging” and “inducing” to stand “in isolation,” 553 U. S., at 294. See ante, at 13. Tracing the history over time clearly establishes that Congress deleted the very narrowing terms that the majority now reads back into the statute.[4]
The majority brushes off Congress’s revision by speculating that Congress was merely “engaged in a cleanup project” and was just “streamlin[ing]” the statutory language. Ibid. This contention, however, gets our ordinary presumption in statutory interpretation cases precisely backwards. 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) (slip op., at 10) (internal quotation marks omitted). Thus, we have found the presumption overcome where, for example, Congress has expressly “billed” the changes as “effect[ing] only ‘[t]echnical [a]mendments.’ ” Id., at ___ (slip op., at 9).
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 support 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 “induc[ing]” certain unlawful immigration. Ante, at 13 (citing United States v. Lem Hoy, 330 U. S. 724 (1947)). From this, the majority infers that, when Congress amended the encouragement provision five 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 decision when it drafted the 1952 amendments, or anything else that might establish the primary significance that the majority 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 provision. Ante, at 16. In other words, the Court today holds 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 “induce” carry the mens rea associated with solicitation and facilitation. Ante, at 15; see also ante, at 14 (reasoning that Congress’s use of “encourages” and “induces” brought along the “old soil” of “the traditional intent associated with solicitation and facilitation” (internal quotation marks omitted)). Of course, this argument merely assumes that Congress intended 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 conflation of those terms. See Part II–A, supra.
The majority also invokes the presumption that a criminal law contains an intent requirement even where Congress does not explicitly include one. Ante, at 15–16. But, here, the statutory history undermines that presumption. Congress most certainly focused on the mens rea question because 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 immigration status. The confluence of these choices implies that Congress’s removal of the primary mens rea requirement was deliberate. And, when this deliberate choice is considered alongside the history of the provision’s significant expansions, there is ample cause to think that Congress intended a substantive change in meaning.
C
Other features of the encouragement provision (beyond its plain text and historical development) also suggest that Congress did not mean for the statute to be construed in accordance with established characteristics of solicitation or aiding and abetting. These features further highlight the poor fit between this statute and the narrow solicitation/aiding-and-abetting box into which the majority tries to squeeze Congress’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 8–9.[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 19. Thus, the encouragement provision on its face appears to criminally punish someone who merely encourages or induces a civil violation.[6]
That feature of the provision does not sit easily with its categorization as a solicitation or facilitation statute, because, ordinarily, a person may only be held criminally liable for aiding and abetting or solicitation when the underlying offense is itself a crime. Aiding-and-abetting liability is “a centuries-old view of culpability: that a person may be responsible for a crime he has not personally carried out if he helps another to complete its commission.” Rosemond v. United States, 572 U. S. 65, 70 (2014) (citing J. Hawley & M. McGregor, Criminal Law 81 (1899)); see also 18 U. S. C. §2(a) (the general federal aiding-and-abetting statute, providing that someone who “aids, abets, counsels, commands, induces or procures” the commission of a federal crime “is punishable as a principal”). As for solicitation, at common law, the solicited offense had to be a felony or a serious misdemeanor; otherwise, “the solicitor [was] guilty of no offense.” 1 J. Ohlin, Wharton’s Criminal Law §9:2 (16th ed. 2021) (Wharton’s). Today, “in some jurisdictions, the offense solicited may be a felony or a misdemeanor; but in others, it can only be a felony”—either way, though, the underlying offense must be criminal. Ibid. (footnotes omitted); see also 18 U. S. C. §373 (the general federal solicitation statute, which is limited to the solicitation of violent felonies).
Here, by contrast, the encouragement provision on its face appears to permit a person to be punished as a felon for merely encouraging a civil violation. Thus, the statute is not an easy fit 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 liability—i.e., a way in which a person becomes liable for the crimes of the principal. Likewise, for solicitation, “the punishment … 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 punishment depend on the penalty for the underlying offense. So, for example, even if the underlying immigration offense is a civil violation, the person who encourages or induces that infraction could be punished by up to 10 years’ imprisonment for violating the encouragement provision. Unlike solicitation and facilitation, then, punishment for violation 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 encouragement provision on its face does not require that a noncitizen actually enter or reside in the United States. *** For these reasons, none 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 16–17.[7] But that canon “comes into play only when, after the application of ordinary textual analysis, the statute is found to be susceptible of more than one construction.” Jennings v. Rodriguez, 583 U. S. ___, ___ (2018) (slip op., at 12) (internal quotation marks omitted). It does not give the Court license “to rewrite a statute as it pleases.” Id., at ___ (slip op., at 14). And, here, for the reasons explained above, it is clear that the majority has mounted “a serious invasion of the legislative domain.” Stevens, 559 U. S., at 481 (internal quotation marks omitted). The majority’s rescue mission is especially problematic because 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 those hardy enough to risk criminal prosecution to determine 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 nevertheless 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 quotation marks omitted). By permitting this kind of challenge, 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] Congress’s incentive to draft a narrowly tailored law in the first 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 challenge, countervailing constitutional concerns—namely, that constitutionally protected speech will be chilled—must be considered alongside the values that underpin our ordinary 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 overbroad and thereby prompts the enactment of a narrower replacement. Ordinary people confronted with the encouragement 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 narrows 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 determination whether a noncitizen must actually complete the underlying 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 clarification of which, by the way, should be Congress’s policy prerogative—may itself dissuade people from engaging in protected speech.[8] Thus, regardless 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.
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 17–18. But the purported lack of past prosecutions provides no comfort for several reasons.
The first is that we have already said as much—this Court squarely rejected that kind of argument when the Government 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 expression 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 prosecutorial discretion several times.” Ibid. But we were not moved: Such a prosecution was permitted by the statute, we 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 evidence of the danger in putting faith in Government representations 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 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 exemplifies 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 finds 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 incentives 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 hypothetical scenarios may understandably provide cold comfort to those living and working with immigrants.
In any event, it makes little sense for the number of unconstitutional 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. Hansen’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 migrants—a list that included journalists simply reporting factual information about the group’s progress. Brief for Reporters Committee for Freedom of the Press as Amicus Curiae 5–6. CBP allegedly compiled dossiers on those reporters and singled them out as targets for special screenings. Ibid. There can be no doubt that this kind of Government 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 organizations that help undocumented immigrants, directing the organizations to preserve documents and communications related to their work in advance of a potential congressional investigation into whether such organizations are “ ‘harbor[ing], transport[ing], and encourag[ing]’ ” noncitizens to settle unlawfully in this country. Brief for Religious Organizations as Amici Curiae 34 (emphasis added). Again, this 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 investigation never materializes).
The majority nevertheless derides the fears of Hansen and his amici as an overimaginative “parad[e]” of “horribles.” Ante, at 18. But what may seem “fanciful” to this Court at great remove, ante, at 5, might well prove to be a significant 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 filings of … amici curiae in support of” Hansen—including briefs from lawyers, immigration advocacy organizations, religious and other charitable organizations, journalists, local governments, and nonprofit policy institutions from across the ideological spectrum. Americans for Prosperity Foundation v. Bonta, 594 U. S. ___, ___ (2021) (slip op., at 17).
The substantial concerns that amici from such diverse walks of life raise illustrate that the “deterrent effect feared by” Hansen and his amici “is real and pervasive.” Id., at ___ (slip op., at 18). Moreover, at the end of the day, those fears reflect 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 unconstitutional and invalid under the First Amendment, as the Ninth Circuit held.
- ↑ 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.
- ↑ 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 17 (citing Edwards v. Prime, Inc., 602 F. 3d 1276, 1295–1297 (CA11 2010)).
- ↑ This is not a surplusage argument. Cf. ante, at 15, 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.
- ↑ 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 8. The majority includes that list in its effort to demonstrate that “encourages” and “induces” in the encouragement provision actually mean “solicits” or “aids and abets.” But in the vast majority of the cited statutes, classic narrowing terms—like “aided,” “abetted,” “solicits,” “commands,” “hires,” “coerces,” or “compels”—appear alongside “encourages” or “induces.” Ibid.; 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 narrower reading.
- ↑ 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 first two listed verbs (‘come to’ and ‘enter’) plainly refer to such an acquisition.” Ibid.
- ↑ Hansen takes issue with this feature of the statute, arguing that the “ ‘speech integral to criminal conduct’ exception” to the First Amendment’s protection of free speech “does not permit the criminal punishment of speech encouraging only a civil law violation.” Brief for Respondent 39. The majority declines to address this argument, leaving it available in future as-applied challenges to this and other statutes. Ante, at 19, n. 5, 20.
- ↑ The majority implies that constitutional avoidance is a backup argument. Ante, at 16 (suggesting that its reading of the statute is the “best one”). But, in my view, the text and history of the encouragement provision make it hard to get even close to the majority’s narrow reading without substantial reliance on the constitutional-avoidance principle.
- ↑ 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 validly prosecute a son who reassures his noncitizen mother (who lives unlawfully 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.
- ↑ 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. 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 flawed instructions).
- ↑ 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. ___, ___–___ (2023) (slip op., at 2–3).