OPINION ANALYSIS

Supreme Court narrowly interprets ban on “encouraging or inducing” immigrants to remain unlawfully in the United States

On Friday the Supreme Court issued its decision in United States v. Hansen. The question before the justices was whether a federal law that criminalizes “encouraging or inducing” an immigrant to come or remain in the United States unlawfully violates the First Amendment’s guarantee of the freedom of speech. The court narrowly interpreted the law to avoid the First Amendment concerns that would be raised if “encourage or induce” were given their ordinary, conversational meanings — and include meanings such as to “influence,” “encourage,” or “inspire with hope” — as the U.S. Court of Appeals for the 9th Circuit had held they did.

The opinion also shed light on the newer justices’ views on the freedom of speech and the direction the newly reconfigured court may be pushing First Amendment law.

The First Amendment question came to the court in the case of Helaman Hansen, a California man who ran a scam promising noncitizens a path to citizenship through a fake “adult adoption” program. In 2017, Hansen was convicted on mail and wire fraud charges, but also on charges that he had encouraged or induced two noncitizens to stay in the United States after their visas expired.

Hansen challenged the constitutionality of the ban on “encouraging or inducing” immigration. He relied on a First Amendment doctrine known as the overbreadth doctrine, which allows a defendant to whom a law can be constitutionally applied to nonetheless challenge it as unconstitutional if the law makes a substantial amount of protected speech illegal, so that uncertainty about the scope of the law may chill protected speech.

The U.S. Court of Appeals for the 9th Circuit agreed with Hansen, prompting the Biden administration to go to the Supreme Court. After the oral argument in March, it appeared that a slim majority might restrict or do away with the overbreadth doctrine. But in an opinion by Justice Amy Coney Barrett, the court took a more restrained approach. While it did not strike a note in favor of speech protection, Barrett reaffirmed the overbreadth doctrine.

An expansive reading of the statute, the court recognized, would arguably criminalize political advocacy or general encouragement. To avoid that result, the majority interpreted “encourage or induce” to be terms of art that Congress used in a specialized, criminal-law sense — that is, as covering only what falls within the established common-law crimes of solicitation and facilitation. That means that someone can only run afoul of the statute if they intend for an immigrant to come or remain in the U.S. while knowing that is unlawful.

The federal government conceded that the law was unconstitutionally overbroad if given its ordinary meaning, and that it did not defend the statute if interpreted in that way. Instead, the government urged the court to read “encourage or induce” to encompass only the purposeful solicitation and facilitation of specific acts known to violate federal law — an interpretation the court ultimately adopted. The canon of constitutional avoidance requires the court to adopt a construction that will avoid constitutional violations if that interpretation is “fairly possible,” and the court concluded that the government’s interpretation was just that.

The court focused on the specialized definitions of “encourage or induce,” which it said have well-established meanings that are pervasive in both federal and state criminal law. Those words, Barrett observed, are common verbs used to define solicitation and facilitation (that is, aiding and abetting). Solicitation, in turn, is the intentional encouragement of an unlawful act, and facilitation means giving assistance to a lawbreaker with the intent to further the commission of an offense. For both crimes, words alone may be violations — but with key limitations that may be required to avoid First Amendment concerns. That includes an intent requirement: To violate the law, a defendant must purposefully solicit or facilitate a specific act that they know to violate federal law.

When Congress uses such terms of art, Barrett reasoned, “it presumably knows and adopts the cluster of ideas that were attached to each borrowed word.” The statutory history of the clause, rather than expanding its scope to unconstitutional limits as Hansen argued, the majority concluded, also suggests that Congress intended to streamline the statute while retaining the same, traditional meaning.

The overbreadth doctrine requires courts to consider how much of a statute’s application is constitutional versus unconstitutional. A court will strike down law in its entirety under the overbreadth doctrine if it “prohibits a substantial amount of protected speech” relative to its “plainly legitimate sweep.” Under that standard, the majority concluded that the law is constitutional: It outlaws a significant amount of nonexpressive conduct, such as human smuggling or document counterfeiting, the court observed, and to the extent the law reaches speech, it only reaches speech that is integral to illegal conduct (that is, speech that is part of solicitation or facilitation).

The majority declined to reach Hansen’s final argument that Congress cannot constitutionally criminalize the solicitation or facilitation of civil violations, including some immigration laws. Even if such a theory were correct, Barrett reasoned, “Hansen asks us to throw out too much of the good based on a speculative shot at the bad.” While this decision means that Hansen, who concedes the law is constitutionally applied to him, loses, it does not stop other defendants from challenging the law as applied to their speech on a case-by-case basis.

In a concurring opinion, Justice Clarence Thomas urged his colleagues to reconsider the overbreadth doctrine in a future case. He contended that it “lacks any basis in the text or history of the First Amendment” and, by requiring courts to balance constitutional and unconstitutional applications of the law, demands courts to do “nothing short of a society-wide policy determination of the sort that legislatures perform.”

Justice Ketanji Brown Jackson, joined by Justice Sonia Sotomayor, penned a dissent in which she argued that the majority’s decision departed from ordinary statutory interpretation principles. The statute, Jackson argued, must be interpreted by its plain text and therefore is overbroad and must be struck down. The words solicitation and facilitation appear nowhere in the text, she wrote, and the majority’s contention that “encourage or induce” are often defined in part by “solicitation” or “facilitation” fails. Although broader terms are often used to define narrower ones, Jackson wrote, that does not make them synonymous. What is more, Jackson added, the words “solicit” and “assist” appeared in the statutory text be between 1885 and 1952, but were then removed by Congress.

Jackson also chided the majority for relying on the canon of constitutional avoidance. Regardless of the court’s narrowed interpretation, she contended, ordinary people will still only see the law’s “broad, speech-chilling language.” And the fact that the government has not “as of today,” prosecuted grandmothers or doctors as Hansen fears “provide[s] cold comfort to those living and working with immigrants,” she said, when the federal government has used the law to justify putting journalists on watch lists for special screenings and ordering religious groups that help undocumented people to preserve their communications in advance of a potential congressional investigation into whether their work violates the encouragement provision. The majority, Jackson wrote, therefore “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.”

The decision in Hansen reinforces the view that this court appears likely to cut a less speech-protective path than its recent predecessors — if perhaps not ready to make radical moves in that direction. Hansen followed an approach similar to the court’s recent decisions in Google v. Gonzalez and Twitter v. Taamneh, cases that involved the liability of social media companies for harmful speech on their platforms. Like Hansen, when the court decided to hear those cases, it looked as if it planned to alter, perhaps radically, the laws structuring speech. But in both cases the court instead turned to the law of secondary liability to avoid major questions about the effects of harmful speech.

How should we interpret the court’s less speech libertarian but arguably measured approach as we look ahead to major First Amendment cases like this term’s 303 Creative about whether a website designer has a First Amendment right to refuse to serve gay couples, or high-profile challenges to laws regulating social media platforms, which the court could take up next term? Have the justices been chastened by concerns about the court’s legitimacy? Or are the justices and new court simply in the process of defining their priorities, perhaps moving from the speech-libertarian tilt of recent courts to one that more heavily emphasizes religious rights, race neutrality, and separation of powers (such as the newly minted major questions doctrine)? Perhaps some mix of all of the above is at play — any of which may have significant consequences for the future of both the court and constitutional law.