Supreme Court of the United States

“ 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.” ”

“ Yet, instead of applying Congress’ duly enacted law to respondent, the Ninth Circuit held the statute unconstitutional under this Court’s facial overbreadth doctrine. Specifically, it took the doctrine as license to “speculate about imaginary cases and sift through an endless stream of fanciful hypotheticals,” from which it concluded that the statute may be unconstitutional as applied to other (hypothetical) individuals in other (hypothetical) situations. ”

“ 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. ”

“ That line of reasoning starkly demonstrates that this Court’s facial overbreadth doctrine offers a license for federal courts to act as “roving commissions assigned to pass judgment on the validity of the Nation’s laws.” Broadrick v. Oklahoma, 413 U. S. 601, 610–611 (1973) (majority opinion of White, J.) .
Such “roving commissions” are hardly a new idea. When they met in 1787, the Constitution’s Framers were well aware of a body that wielded such power: the New York Council of Revision (Council) . ”

“ 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. ”

“ 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.) ”

“ 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. ”

“ 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 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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.” ”

“ Unsurprisingly, the Council was abolished, and New York’s 1821 Constitution placed the veto power solely in the Governor. Barry 248.
When courts apply the facial overbreadth doctrine, they function in a manner strikingly similar to the federal council of revision that the Framers rejected. The doctrine contemplates that courts can declare laws unconstitutional in the abstract without the law ever being applied against any individual in an unconstitutional manner. Along the way, courts must examine the sum total of the law’s application to people who are not parties to any proceeding ”

“ 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. ”

“ Opponents thus concluded that to include judges in the policy decisions inherent in the legislative process would be a “dangerous innovation,” one that would erode public confidence in their ability to perform their “proper official character.” 2 Farrand 75–76 (L. Martin) ; see also id., at 77 (“ [T] he Supreme Judiciary should have the confidence of the people. This will soon be lost, if they are employed in the task of remonstrating ag [ainst] popular measures of the Legislature”) .
The later history of the New York Council of Revision demonstrates the wisdom of the Framers’ decision. ”

“ 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.” ”

“ 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. ”

“ 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.
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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. ”

“ 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. ”

“ 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. ”

“ 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.” ”