United States v. Hansen/Opinion of the Court
Notice: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
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 Barrett delivered the opinion of the Court.
A federal law prohibits “encourag[ing] or induc[ing]” illegal immigration. 8 U. S. C. §1324(a)(1)(A)(iv). After concluding that this statute criminalizes immigration advocacy and other protected speech, the Ninth Circuit held it unconstitutionally 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 protected speech”—let alone enough to justify throwing out the law’s “plainly legitimate sweep.” United States v. Williams, 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 flew 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. Believing that citizenship was around the corner, Nailati took Hansen’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 $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 financial gain,” triggering a higher maximum 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 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 overbroad. 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) (slip op., at 3). On remand, limited to the arguments that Sineneng-Smith had actually made, the Ninth Circuit affirmed 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 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 solicitation 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, asserting that clause (iv) criminalizes speech such as “encouraging 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 undocumented 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 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 provision 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, Hansen 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. 600, 612 (2003) (“[T]he First Amendment does not shield fraud”). Instead, he raises an overbreadth challenge: He argues that clause (iv) punishes so much protected speech that it cannot be applied to anyone, including him. Brief for Respondent 9–10.
An overbreadth challenge is unusual. For one thing, litigants 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 facially unconstitutional even though it has lawful applications, and even at the behest of someone to whom the statute can be lawfully applied.
We have justified this doctrine on the ground that it provides breathing room for free expression. Overbroad laws “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 society’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]nvalidation 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 applications must be realistic, not fanciful, and their number must 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 handle unconstitutional applications as they usually do—case-by-case.
III
A
To judge whether a statute is overbroad, we must first 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 reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.”[1] The issue is 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 facilitation. 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. ___, ___–___ (2023) (slip op., at 13–14). While the crime of solicitation is complete as soon as the 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 §10:1, p. 298 (16th ed. 2021) (Wharton) (“[A]dditional language—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, defines “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 Dictionary 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) (defining “encourage” 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. 1152 (“Whoever … aids, abets, counsels, commands, induces, or procures [the commission of an offense] is a principal” (emphasis 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] conduct.” §373(a) (emphasis added). Federal law also criminalizes “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) (emphasis added). The Model Penal Code echoes these formulations, defining solicitation as, in relevant part, “command[ing], encourag[ing] or request[ing] another person to engage in specific [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 (collecting examples).
The use of both verbs to describe solicitation and facilitation 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, requests, or solicits another person to engage in specific conduct” commits the offense of solicitation. Ariz. Rev. Stat. Ann. §13–1002(A) (2020) (emphasis added). And New Mexico 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”); 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) (“encouraging”); 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 pervasive. And if 8 U. S. C. §1324(a)(1)(A)(iv) refers to solicitation 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 definitions from multiple dictionaries, the terms are so familiar that two samples suffice. In ordinary parlance, “induce” means “[t]o lead on; to influence; to prevail on; to move by persuasion or influence.” Webster’s New International Dictionary 1269 (2d ed. 1953). And “encourage” means to “inspire with courage, spirit, or hope.” Webster’s Third New International Dictionary 747 (1966).
In Hansen’s view, clause (iv)’s use of the bare words “encourages” 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 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 definitions is not much of a contest. “Encourage” and “induce” have well-established legal meanings—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.” Morissette 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 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 carries 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) prohibits “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 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 definitions, context differentiates among them. That is just as true when the choice is between ordinary 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 reflects one aspect of a job’s ‘working conditions,’ the term has a different and much more specific 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 template for clause (iv). That law prohibited “knowingly assisting, 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 encourage or set another on to commit a crime”); Black’s Law Dictionary 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 “encouraging” its narrower criminal-law meaning. See Dubin v. United States, 599 U. S. ___, ___ (2023) (slip op., at 12) (a word capable of many meanings is refined 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 introducing noncitizens into the country—without suggesting that the term “encouraging” altered the scope of the prohibition. Lees v. United States, 150 U. S. 476, 480 (1893) (emphasis added).
In the ensuing decades, Congress both added to and subtracted 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 “encourage,” the word “induce” carried solicitation and facilitation overtones at the time of this enactment. See Black’s Law Dictionary 617 (1891) (defining “inducement” to mean “that which leads or tempts to the commission of crime”). In fact, Congress had just recently used the term in a catchall 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 offense], is a principal” (emphasis added)). And as with “encourage,” the meaning of “induce” was clarified and narrowed 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, simplified 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 entitled to enter or reside within the United States.” Immigration and Nationality Act, §274(a)(4), 66 Stat. 229. Three decades later, Congress brought 8 U. S. C. §1324(a)(1)(A)(iv) 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. Before 1952, he says, the words “assist” and “solicit” may have cabined “encourage” and “induce,” but eliminating them severed 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 Congress opted to make “protected speech, not conduct, a crime.” Id., at 27.
We do not agree that the mere removal of the words “assist” and “solicit” turned an ordinary solicitation and facilitation offense into a novel and boundless restriction on speech. Hansen’s argument would require us 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 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, defined 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 laborers 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 (“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 facilitation. Brief for Respondent 28–31. Both, as traditionally understood, require that the defendant specifically intend that a particular act be carried out. Supra, at 6. “Encourages or induces,” however, is not modified by any express intent requirement. Because the text of clause (iv) lacks that essential element, Hansen protests, it cannot possibly 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) (slip op., at 5–6). So when Congress placed “encourages” and “induces” in clause (iv), the traditional intent 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 federal 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 traditional state of mind required for aiding and abetting. Rosemond 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 first makes it a crime to “engag[e] in any conspiracy 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 aiding and abetting are familiar common-law offenses that contain 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 inadvertently 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]
Still, Hansen reiterates that if Congress had wanted to require intent, it could easily have said so—as it did elsewhere in clause (iv). The provision requires that the defendant 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 requirement, it included no express mens rea element for “encourages or induces.” Indeed, Hansen continues, the statute 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 together, Hansen says, this evidence reflects that Congress aimed to make a defendant liable for “encouraging or inducing” without respect to her state of mind.
But there is a simple explanation for why “encourages or induces” is not modified by an express mens rea requirement: There is no need for it. At the risk of sounding like 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 requirement as unnecessary and cut it in a further effort to streamline clause (iv). And in any event, the omission of the unnecessary modifier 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) (slip op., at 5); 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 “reckless[ly] disregard … the fact that” the noncitizen’s “coming 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 illegality, 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 mental state for this element tells us something that we might not normally infer, whereas the inclusion of a mens rea requirement 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) (slip op., at 12). This canon is normally a valuable ally for criminal defendants, who raise the prospect of unconstitutional applications to urge a narrower construction. But Hansen presses the clause toward the most expansive reading possible, effectively asking us to apply a canon of “ ‘constitutional collision.’ ” 40 F. 4th, at 1059 (opinion of Bumatay, 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 manufacture conflict.[3]
IV
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, the statute does not “prohibi[t] a substantial amount of protected speech” relative to its “plainly legitimate sweep.” Williams, 553 U. S., at 292.
Start with clause (iv)’s valid reach. Hansen does not dispute that the provision encompasses a great deal of nonexpressive 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 numbers to noncitizens, see Edwards v. Prime, Inc., 602 F. 3d 1276, 1295–1297 (CA11 2010). A brief survey of the Federal Reporter confirms that these are heartland clause (iv) prosecutions. 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.
When we turn to the other side of the ledger, we find it pretty much blank. Hansen fails to identify a single prosecution 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 “induce.” 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 government official 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 filtered through the elements of solicitation or facilitation—most importantly, the requirement (which we again repeat) that a defendant intend to bring about a specific 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.
To the extent that clause (iv) reaches any speech, it stretches no further than speech integral to unlawful conduct.[4] “[I]t has never been deemed an abridgement of freedom 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 employment, Pittsburgh Press Co. v. Pittsburgh 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]
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 applications of §1324(a)(1)(A)(iv) are permissible—in fact, he concedes that he would lose if clause (iv) covered only solicitation 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 facilitates 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 criminal 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 Amicus Curiae 5–7. If this theory is sound, then clause (iv) 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 succeed, he has to show that clause (iv)’s overbreadth is “substantial … relative to [its] plainly legitimate sweep.” Williams, 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 assuming that its application to all of that speech is unconstitutional, the ratio of unlawful-to-lawful applications is not lopsided 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 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.
- ↑ 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) (slip op., at 3, n. 2).
- ↑ The Ninth Circuit believed that the Government’s “solicitation and facilitation” 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 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 first-line facilitator. Another difference: Clause (iv) criminalizes not only facilitation, but solicitation too.
- ↑ The canon of constitutional avoidance is a problem for the dissent. Attempting to overcome it, Justice Jackson suggests that the canon has less force in the context of an overbreadth challenge. Post, at 17. Our cases offer no support for that proposition. In this context, as in others, ordinary principles of interpretation apply.
- ↑ 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.
- ↑ Overbreadth doctrine trafficks in hypotheticals, so we do not (and cannot) 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.