By Greg Mermelstein, Deputy Director & General Counsel, Missouri Public Defender
           The federal law which prohibits “encouraging or inducing” illegal immigration criminalizes only intentional solicitation and facilitation of unlawful acts, and is not overly broad under the First Amendment, the U.S. Supreme Court held June 23 in United States v. Hansen.
           Helaman Hansen charged noncitizens thousands of dollars to perform “adult adoptions,” through which Hansen told them they would gain U.S. citizenship. 
           In fact, Hansen’s scheme was fraudulent.  There is no path by which adult noncitizens can become citizens via “adoption.”
           Hansen was charged and convicted under 8 U.S.C. Sec. 1324(a)(1)(A)(iv), which forbids “encourag[ing] or induc[ing]” a noncitizen “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.”
           Hansen claimed the law was overbroad under the First Amendment.
           The Ninth Circuit agreed.  It found the law criminalized speech such as advising noncitizens about available social services, or providing them legal advice.
           The Supreme Court reversed, in a 7-2 opinion.
           In deciding whether the statute is overbroad, 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)”, the Court said.
           “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”, the Court said.
           “‘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”, the Court said.
           Hansen primarily argues the statute “is missing the necessary mens rea for solicitation and facilitation”, the Court said. 
           But just as the federal aiding-and-abetting statute implicitly incorporates the traditional state of mind required for aiding and abetting, so, too does section (iv), the Court said.
           “‘Encourage’ and ‘induce,’ as terms of art, carry the usual attributes of solicitation and facilitation – including … the traditional mens rea”, the Court said. 
           The statute “reaches no further than the purposeful solicitation and facilitation of specific acts known to violate federal law”, the Court said.  “So understood, the statute does not prohibit a substantial amount of protected speech relative to its plainly legitimate sweep.”
           “Hansen asks us to throw out too much” based on “speculative” arguments about the law criminalizing potentially protected speech, the Court concluded.  “This not the stuff of overbreadth – as-applied challenges can take it from here.”
Thomas calls for abolishing overbreadth doctrine
           Justice Thomas concurred in the opinion, but wrote separately to state his view that the overbreadth doctrine “lacks any basis in the text or history of the First Amendment, relaxes the traditional standard for facial challenges, and distorts the judicial role.”
           He said the doctrine grants courts a “roving commission” to pass judgment on the validity of federal laws.
           Thomas said the Court should “reconsider” the overbreadth doctrine in the future.
           Justices Jackson and Sotomayor dissented.