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SUPREME COURT OF THE UNITED STATES
UNITED STATES, PETITIONER v.
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
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
, 553 U.S.
, 292 (2008). We reverse.
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
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
, 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),
, was pending before
the Ninth Circuit, which had sua sponte
question whether the clause was an unconstitutionally overbroad
restriction of speech. 910 F.3d 461, 469 (2018). Taking his cue
, 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.”
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
, at 1072.
We granted certiorari. 598 U. S. ___
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
, 538 U.S.
, 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
An overbreadth challenge is unusual. For one
thing, litigants typically lack standing to assert the
constitutional rights of third parties. See, e.g.
, 499 U.S.
, 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
, 481 U.S.
, 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
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.”
, 539 U.S.
, 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
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.’ ”
, 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.
, 14 (1988); Members of City Council of Los Angeles
Taxpayers for Vincent
, 466 U.S.
, 800–801 (1984). In the absence of a lopsided ratio,
courts must handle unconstitutional applications as they usually
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
] 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.
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.
, 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 &
, 507 U.S.
, 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.
v. United States
, 150 U.S.
, 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.
First Interstate Bank of Denver, N. A.
, 511 U.S.
, 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.
§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.
, 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, 35Stat. 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],
, 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]
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.
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,
, hired, commanded, induced
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,
. . . 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.
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
abetting,” he says, “does not mean it is
to aiding and abetting.” Id.
, at 25.
And because clause (iv) “proscribes encouragement, full
, 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
, 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.
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
v. United States
, 342 U.S.
, 263 (1952); see also, e.g.
, United States
, 513 U.S.
, 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
, 549 U.S.
, 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
, 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
, 417 U.S.
, 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.
, 524 U.S.
, 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
or soliciting” immigration
under a contract to perform labor. Act of Feb. 26, 1885, ch. 164,
§3, 23Stat. 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
, 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
” in introducing noncitizens into the
country—without suggesting that the term
“encouraging” altered the scope of the prohibition.
v. United States
, 150 U.S.
, 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, 32Stat.
1214–1215; Act of Feb. 20, 1907, §5, 34Stat. 900. Then,
in 1917, Congress added “induce” to the string of
verbs. Act of Feb. 5, 1917, §5, 39Stat. 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, 35Stat. 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
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), 66Stat. 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), 100Stat. 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.”
, 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
v. Lem Hoy
, 330 U.S.
, 727 (1947) (explaining that the 1917 Act barred
“contract laborers, defined as persons induced or
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
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
Hansen’s primary counterargument is that
clause (iv) is missing the necessary mens rea
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.
, 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
Once again, Hansen ignores the longstanding
history of these words. When Congress transplants a common-law
term, the “ ‘old soil’ ” comes
with it. Taggart
, 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
, 572 U.S.
, 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
requirement—the defendant generally must
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
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
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
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
But there is a simple explanation for why
“encourages or induces” is not modified by an express
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
, 597 U. S. ___, ___ (2022) (slip op., at 5); see
v. United States
, 575 U.S. 723,
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
“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
, 524 U.S.
, 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
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
, 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
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.”
, 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
, 728 F.3d 111, 113–114 (CA2
2013); United States
303 F.3d 1145
, 1148–1151 (CA9 2002), providing
counterfeit immigration documents, see United States
, 456 Fed. Appx. 267, 269–270 (CA4 2011)
); United States
, 539 F.2d 9, 11 (CA9 1976), and issuing fraudulent Social
Security numbers to noncitizens, see Edwards
., 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
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.
, 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
speech, it stretches no further than speech integral to
“[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.”
v. Empire Storage & Ice Co.
, 336 U.S.
, 502 (1949). Speech intended to bring about a particular
unlawful act has no social value; therefore, it is unprotected.
, 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
v. Pittsburgh Comm’n on Human Relations
, 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
that solicits or facilitates a civil
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
, 567 U.S.
, 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
. . . 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
, 413 U.S.
, 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
It is so ordered.