United States v. Hansen

by Supreme Court of the United States

Note: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

UNITED STATES v. HANSEN
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 22–179. Argued March 27, 2023—Decided June 23, 2023

Respondent Helaman Hansen promised hundreds of noncitizens a path to U. S. citizenship through “adult adoption.” But that was a scam. Though there is no path to citizenship through “adult adoption,” Hansen earned nearly $2 million from his scheme. The United States charged Hansen with, inter alia, violating 8 U. S. C. §1324(a)(1)(A)(iv), which 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 [activity] is or will be in violation of law.” Hansen was convicted and moved to dismiss the clause (iv) charges on First Amendment overbreadth grounds. The District Court rejected Hansen’s argument, but the Ninth Circuit concluded that clause (iv) was unconstitutionally overbroad.

Held: Because §1324(a)(1)(A)(iv) forbids only the purposeful solicitation and facilitation of specific acts known to violate federal law, the clause is not unconstitutionally overbroad. Pp. 4–20.

(a) Hansen’s First Amendment overbreadth challenge rests on the claim that clause (iv) punishes so much protected speech that it cannot be applied to anyone, including him. A court will hold a statute facially invalid under the overbreadth doctrine if the law “prohibits a substantial amount of protected speech” relative to its “plainly legitimate sweep.” United States v. Williams, 553 U. S. 285, 292. In such a circumstance, society’s interest in free expression outweighs its interest in the statute’s lawful applications. Otherwise, courts must handle unconstitutional applications as they usually do—case-by-case. Pp. 4–5.

(b) The issue here is whether Congress used “encourage” and “induce” in clause (iv) 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 ordinary conversation (thus encompassing a broader swath). Pp. 5–9.

(1) Criminal solicitation is the intentional encouragement of an unlawful act, and facilitation—i.e., aiding and abetting—is the provision of assistance to a wrongdoer with the intent to further an offense’s commission. Neither requires lending physical aid; for both, words may be enough. And both require an intent to bring about a particular unlawful act. The terms “encourage” and “induce,” found in clause (iv), are among the “most common” verbs used to denote solicitation and facilitation. 2 W. LaFave, Substantive Criminal Law §13.2(a). Their specialized usage is displayed in the federal criminal code as well as the criminal laws of every State. If the challenged statute uses those terms as they are typically understood in the criminal law, an overbreadth challenge would be hard to sustain. Pp. 6–8.

(2) Hansen, like the Ninth Circuit, insists that clause (iv) uses “encourages” and “induces” in their ordinary rather than specialized sense. In ordinary parlance, “induce” means “[to] lead on; to influence; to prevail on; to move by persuasion or influence,” Webster’s New International Dictionary 1269, and “encourage” means to “inspire with courage, spirit, or hope,” Webster’s Third New International Dictionary 747. If clause (iv) conveys these ordinary meanings, it arguably reaches abstract advocacy or general encouragement, and its applications to protected speech might render it vulnerable to an overbreadth challenge. P. 9.

(c) The Court holds that clause (iv) uses “encourages or induces” in its specialized, criminal-law sense—that is, as incorporating common-law liability for solicitation and facilitation. Pp. 9–13.

(1) Context indicates that Congress used those words as terms of art. “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. That inference is even stronger here, because clause (iv) prohibits “encouraging” and “inducing” a violation of law, which is the object of solicitation and facilitation too. The Ninth Circuit stacked the deck in favor of ordinary meaning, but it should have given specialized meaning a fair shake. When words have several plausible definitions, context differentiates among them. Here, the context of these words indicates that Congress used them as terms of art. Pp. 9–11.

(2) Statutory history is an important part of the relevant context. When Congress enacted in 1885 what would become the template for clause (iv), it criminalized “knowingly assisting, encouraging or soliciting” immigration under a contract to perform labor. 23 Stat. 333. Then, as now, “encourage” had a specialized meaning that channeled accomplice liability. And the words “assisting” and “soliciting,” which appeared alongside “encouraging,” reinforce the narrower criminal-law meaning. When Congress amended that provision in 1917, it added “induce,” which also carried solicitation and facilitation overtones. 39 Stat. 879. In 1952, Congress enacted the immediate predecessor for clause (iv) and also simplified the language from the 1917 Act, dropping the words “assist” and “solicit,” and 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.” 66 Stat. 229. Hansen believes these changes dramatically broadened the scope of clause (iv)’s prohibition on encouragement, but accepting that argument would require the Court 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 previous statutory language. Critically, the terms Congress retained (“encourage” and “induce”) substantially overlap in meaning with the terms it omitted (“assist” and “solicit”). Clause (iv) is thus best understood as a continuation of the past. Pp. 11–13.

(d) Hansen argues that the absence of an express mens rea requirement in clause (iv) means that the statute is not limited to solicitation and facilitation. But when Congress placed “encourages” and “induces” in clause (iv), the traditional intent associated with solicitation and facilitation was part of the package. The federal aiding and abetting statute works the same way: It contains no express mens rea requirement but implicitly incorporates the traditional state of mind required for aiding and abetting. Rosemond v. United States, 572 U. S. 65, 70–71. Clause (iv) is situated among other provisions that function in the same manner. See, e.g., §§1324(a)(1)(A)(v)(I), (II). Since “encourages or induces” draws on the same common-law principles, clause (iv) also incorporates a mens rea requirement implicitly. Pp. 13–16.

(e) Finally, it bears emphasis that the canon of constitutional avoidance counsels the Court to adopt the Government’s reading if it is at least “ ‘fairly possible.’ ” Jennings v. Rodriguez, 583 U. S. ___, ___. Pp. 16–17.

(f) 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, it does not “prohibi[t] a substantial amount of protected speech” relative to its “plainly legitimate sweep.” Williams, 553 U. S., at 292. It is undisputed that clause (iv) encompasses a great deal of nonexpressive conduct, which does not implicate the First Amendment at all, e.g., smuggling noncitizens into the country. Because these types of cases are heartland clause (iv) prosecutions, the “plainly legitimate sweep” of the provision is extensive. To the extent clause (iv) reaches any speech, it stretches no further than speech integral to unlawful conduct, which is unprotected. See, e.g., Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 502. Hansen, on the other hand, 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.” None of these examples are filtered through the traditional elements of solicitation and facilitation—most importantly, the requirement that a defendant intend to bring about a specific result. Because clause (iv) does not have the scope Hansen claims, it does not produce the horribles he parades. Hansen also resists the idea that Congress can criminalize speech that solicits or facilitates a civil violation, and some immigration violations are only civil. But 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 facial invalidation for overbreadth. Pp. 17–20.

25 F. 4th 1103, reversed and remanded.

Barrett, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Alito, Kagan, Gorsuch, and Kavanaugh, JJ., joined. Thomas, J., filed a concurring opinion. Jackson, J., filed a dissenting opinion, in which Sotomayor, J., joined.

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