UNITED STATES, Petitioner, v. HELAMAN HANSEN, Respondent
Interviewer(s): Clarence Thomas, Samuel A. Alito, Jr., Elena Kagan, John G. Roberts, Jr., Ketanji Brown Jackson, Neil Gorsuch, Brett M. Kavanaugh, Amy Coney Barrett, Sonia Sotomayor
Interviewee(s): Brian H. Fletcher, Esha Bhandari

John G. Roberts, Jr.: We'll hear argument next in Case 22-179, United States versus Hansen. Mr. Fletcher.

Brian H. Fletcher: Thank you, Mr. Chief Justice, and may it please the Court: For more than a century, Congress has made it a crime to encourage or induce certain immigration offenses.

Mr. Hansen violated that statute by inducing noncitizens to reside in the United States illegally so that he could take their money in a fraudulent citizenship scheme. No one suggests that that conduct was protected by the First Amendment.

But the Ninth Circuit invoked the overbreadth doctrine to facially invalidate this longstanding statute by giving the words "encourage" and "induce" their broadest possible meaning and sweeping in wide swaths of protected speech. Now we haven't argued that the statute would be constitutional if it swept that broadly.

Our position here is that the statute need not and should not be read that way. Everyone agrees that in criminal law, the terms "encourage" and "induce" are terms of art that can refer narrowly to soliciting or aiding and abetting unlawful activity.

And as nine dissenting judges explained below, text, context, and history confirm that the words carry that traditional meaning in the context of Section 1324. At the very least, that's a plausible reading of the statute that ought to be adopted under the canon of constitutional avoidance because it would eliminate any overbreadth concern. Prohibitions on soliciting or facilitating both criminal and civil violations have long been common and have never been thought to raise a First Amendment problem because, as the Court held in Williams, the First Amendment does not protect speech that is intended to induce or commence specific illegal activities. Now I acknowledge that it will sometimes be hard to draw the line between protected advocacy and unprotected solicitation, but that problem is not unique to Section 1324. Exactly the same issue can arise under any solicitation or aiding-and-abetting statute. And, more importantly here, that is not an overbreadth problem.

As with other solicitation and aiding-and-abetting statutes, the possibility that some applications of Section 1324 might raise First Amendment questions may provide a basis for future as-applied challenges, but it does not justify facially invalidating the statute and preventing its application to plainly unprotected schemes like Mr. Hansen's. I welcome the Court's questions.

Clarence Thomas: Are you aware of any instance in which the -- this section has been applied in the way that the Ninth Circuit hypothesized?

Brian H. Fletcher: I'm not.

And I really do think that's significant, Justice Thomas.

We are, after all, here on an overbreadth case, and this Court has emphasized, most recently, in the last time it heard this issue in Sineneng-Smith, that overbreadth is strong medicine that ought to be applied only as a last resort, and it said you have to vigorously enforce the limits on that doctrine.

One of the limits --

Sonia Sotomayor: Sorry.

There's a district court case involving the woman who encouraged her housekeeper that -- or told her, if you leave, you can't come back, which is -- was an accurate statement of the law, and she was prosecuted in that case.

Brian H. Fletcher: Justice Sotomayor, you're referring to the Henderson case --

Sonia Sotomayor: Yes.

Brian H. Fletcher: -- out of the District of Massachusetts, which is the case that the amicus briefs focus almost entirely on.

And I think, even if you were troubled by that case, that would be one district court prosecution --

Sonia Sotomayor: Well, I -- I -- I --

Brian H. Fletcher: -- I -- I don't think found for --

Sonia Sotomayor: -- what I find interesting is that the government there also hypothesized that a lawyer who told his client that if he -- that -- it -- what the consequences were of leaving, that you would prosecute the lawyer too.

And the lawyer there is earning money for that statement.

He's giving advice.

Brian H. Fletcher: I'm not sure whether that's what the government said there.

It's certainly not what we're saying now, as we explain --

Sonia Sotomayor: Well, I know you aren't.

But could you tell me exactly how you want us to rewrite the statute? I think, if you're going to call it aiding and abetting or soliciting, that you have to write in a specific intent, don't you?

Brian H. Fletcher: I -- I wouldn't -- I'd just dispute the premise.

I don't think we're asking you to rewrite it.

I think we're saying these are words that connote aiding --

Sonia Sotomayor: All right.

Brian H. Fletcher: -- and abetting. They're terms of art.

They bring the old soil with them.

Sonia Sotomayor: With it, and that's an intent requirement?

Brian H. Fletcher: Correct, which is --

Sonia Sotomayor: And, here, the defendant asked for an intent statute to come in.

Brian H. Fletcher: Not quite.

The intent requirement that's required for aiding and abetting and the one that we accept here is the one the Court referred to in Rosemond.

That's the intent of facilitating, making the offense succeed.

What the defendant asked for here --

Sonia Sotomayor: Well, with aiding and abetting, you have to intend to make the -- it succeed.

And I'm wondering what you're making succeed, meaning nothing -- you haven't proven that these aliens were going to leave anyway.

Brian H. Fletcher: I -- I actually think we have here.

There was testimony that -- that there are two noncitizens at issue.

Sonia Sotomayor: I -- well --

Brian H. Fletcher: Both of them said their visas were expiring, they would have left, but Mr. Hansen said --

Sonia Sotomayor: Hansen.

That's --

Brian H. Fletcher: -- you can stay because I'm going to make you a citizen.

Sonia Sotomayor: Right.

But -- so we have to write in an intent.

We have to take the words and define the words "encourage" or "inducing" to mean aiding and abetting or soliciting. What do we do with our Elonis point, where we said, if we're going to define a statute, we shouldn't define it to put in words that Congress took out? And Congress, previous to this statute, had the words "aiding and abetting" and "soliciting" and took them out. So now we're putting back in what Congress took out?

Brian H. Fletcher: I disagree, Justice Sotomayor.

I think this is an area of the law where commentators and the Court has long recognized there are lots of different words that have overlapping meanings that legislatures and courts use to capture these -- these concepts of "solicitation" and "aiding and abetting." The LaFave treatise cites about a dozen of each species.

"Induce" and "encourage" are among them both.

And I don't think that the fact that Congress took out "assist" and "solicit" in 1952 suggests that it intended to change the meaning of this words.

It was, in fact, adopting the shorthand that this Court had just five years earlier in the Hoy case given to the predecessor statute.

When the other words were in there, this Court shorthanded it as "encouraging or inducing."

Brett M. Kavanaugh: You agree --

Sonia Sotomayor: And --

Brett M. Kavanaugh: Go -- go ahead.

Sonia Sotomayor: Go ahead.

No, no, go ahead.

John G. Roberts, Jr.: Justice --

Brett M. Kavanaugh: You agree, though, that the intent requirement that's traditionally associated with aiding and abetting and solicitation should be part of the statute, correct?

Brian H. Fletcher: We do.

And we just don't think that's rewriting.

You know, if you look at 18 U.S.C. 2, the statute at issue in Rosemond, the traditional aiding-and-abetting statute, it doesn't have any explicit intent requirement.

Judge Hand and then this Court found it implicit in words like "induce." And we're saying the same old soil comes with those same words where they appear here.

Brett M. Kavanaugh: And then I think you probably do have a problem on the jury instructions.

Do you want us to remand and let the Ninth Circuit sort that out, or what's -- what's your suggestion for how to deal with that?

Brian H. Fletcher: We do.

We think that's appropriate.

You know, we don't think the jury instructions are before you.

What's before you is an overbreadth challenge, and part of that, of course, is figuring out what the statute means.

Once you do that, we don't have any objection at all to sending it back to the Ninth Circuit.

Elena Kagan: Mr. Fletcher, suppose we take your view of what "encourage" and "induce" means here and we take your view of the correct mens rea requirement, and suppose we say that's the statute.

And is there a world of cases where -- I mean, what happens to all the cases where -- could be a lawyer, could be a doctor, it could be a neighbor, it could be a friend, it could be a teacher, it could be anybody says to a noncitizen, I really think you should stay? What happens to that world of cases?

Brian H. Fletcher: So I think our view is those cases get analyzed the same way that you'd analyze any other aiding-and-abetting question or solicitation question under any other statute.

And I'll talk about how that -- we think those principles cash out as applied to all of the different hypotheticals that have been bandied about. But I think, at the end of the day, the most important thing for this Court's purposes is, once you go -- you take the two steps that you just described of saying that the words mean what we say they mean and that the intent requirement applies, I think you've taken care of any arguable overbreadth problem.

Elena Kagan: Well, maybe or maybe not.

I mean, I would think that there are a world of communications that take place every day which are something along those lines, with somebody saying to a noncitizen, I know you're thinking of what you should do now, I really think you should stay.

Brian H. Fletcher: So, just to fight the premise and then I'll talk about how we think the principles would apply in those circumstances, you know, the traditional aiding-and-abetting, solicitation statutes apply to tax avoidance, to the use of marijuana, to avoiding the draft back when that was an issue. In all of those circumstances, you likewise have to draw the line.

There's a lot of abstract advocacy on those things.

People talk with their friends and acquaintances and family about those things.

Elena Kagan: So where -- where do -- where do we draw the line? You're -- you're not giving me much.

Brian H. Fletcher: I -- I -- sorry.

I -- I promised I would get there, and I will. I think you -- you apply the traditional principles of aiding and abetting. So one of them is specific intent that the -- the -- the violation occur.

We think that's going to weed out a lot of the cases.

Elena Kagan: Yeah.

I really think you should stay, somebody says to a friend.

Brian H. Fletcher: Right.

Elena Kagan: I mean, that's a specific intent, I guess.

Brian H. Fletcher: Right.

Another one is sort of full knowledge of the circumstances, and that in this statute includes additionally some knowledge of the law, knowledge or reckless disregard of whether or not staying is going to violate the law.

We think that's going to take care of another category of cases. There's also a requirement that's always been understood to be implicit in solicitation and aiding and abetting that they don't cover general advocacy, you know, a newspaper editorial, general advocacy public speeches.

We're talking about specific conduct with specific people.

I think that takes care of another slice of cases. And then you're left with the cases that, well, I'll candidly acknowledge are the hardest hypotheticals where somebody says to a family member, I know it would be unlawful for you to stay, but I think you should stay. Those are a hard problem under aiding-and-abetting statutes.

The -- there's not a lot of law on how you end up cashing out aiding-and-abetting principles there.

The closest we find is in Footnote 55 of Section 13.2 of the LaFave treatise which we cite in our opening brief. And, there, the Court has said, look, when you're talking about aid and the form takes -- of aiding and abetting takes material aid, as you said for the Court in Rosemond, any amount of aid is enough, you've associated with a venture, you've sought to facilitate it, and that's good enough. When what you're talking about is just sort of moral suasion or a request, that can sometimes be aiding and abetting.

Recruiting someone to commit a murder is sort of a classic case of aiding and abetting, but we want to demand a little bit more to make sure that you really did associate yourself with the venture, you really did seek to facilitate it with your request.

Elena Kagan: So and -- and do -- do I understand you to be drawing a line between a friend who says, I know exactly what the law is on this and I really think you should stay, which would be in violation of the law, that's on one side of the line, and saying that exact same thing and saying also, I'm going to provide you support when you stay? Is that -- is that the line you're drawing? And --

Brian H. Fletcher: Not -- not precisely. I think saying, you know, I'm going to provide you support, I'm going to tell you how to do it, you know, here's how to -- to work without being on the books, I think those things start to move you much more into assistance.

Elena Kagan: But -- but -- but, on the first one, where there's not that, do I take you to be saying, well, this is very hard, but, in the end, we don't think that that's covered by the statute --

Brian H. Fletcher: So I think --

Elena Kagan: -- or we do think that that's covered by the statute?

Brian H. Fletcher: -- I think it's hard to say that that's covered.

I've read a lot of aiding-and-abetting cases to get ready for this argument.

I haven't seen one that looks like that, you know, the mother who says to the son, gee, I don't want you to go to war.

Neil Gorsuch: Mr. Fletcher, that's because I think that in aiding and abetting, you not only need a mens rea purpose, you know, we talked about that, you conceded that, but you also have to have an actus reus of some step to associate yourself with a venture. But "encourage" and "induce" or "incite," whatever it is, "encourage" and "induce," is that -- does that import that actus reus requirement too?

Brian H. Fletcher: I think it does.

And I -- I -- I think the actus reus for aiding and abetting can be speech, it can be a request, you know, would you rob this bank and I'll give you -- we'll split the proceeds, or, you know, I really would like you to kill this business associate of mine and I'll pay you if you do it. All of those things are speech in some sense.

Neil Gorsuch: Well, but it's a commitment to do something in the world, and -- and, you know, it's obviously an inchoate offense, but it's still I'm going to take some step to associate myself with the completion of this venture.

Brian H. Fletcher: Right.

Neil Gorsuch: And are you saying that comes along -- that soil comes along too?

Brian H. Fletcher: We're saying the soil of aiding and abetting comes along, Your Honor.

Neil Gorsuch: The full soil, all of it?

Brian H. Fletcher: Yes.

Ketanji Brown Jackson: And I'm sorry, why -- why does the full soil come along? I -- I'd like to go back to Justice Sotomayor's point.

If we have evidence, or we think we do, in the amendment history of the statute that Congress actually took out of the statute similar concepts, the idea of, you know, aiding, the idea -- I -- I don't have the exact language in front of me -- but soliciting.

Brian H. Fletcher: Right.

Ketanji Brown Jackson: Soliciting was there.

Brian H. Fletcher: Right.

Ketanji Brown Jackson: And Congress took it out.

So I think you have -- are struggling at least in my mind a little bit to have us read what remains to include the kinds of things that Congress actually excluded.

Brian H. Fletcher: So let me give you two answers, one that's about this area of law in general and one that's specific to the 1952 amendment that you're talking about. As to this area of the law in general, this is a space where courts and legislatures have often used different words as synonyms for the same basic concept.

In 18 U.S.C. 2, it's not just aids and abets.

It's aids, abets, induces, commands.

There's about seven different words.

No one parses them out and asks which it -- exactly is it.

We all understand them to bring along the concept, the general category.

Ketanji Brown Jackson: Right, but what about -- what about the fact that someone in Congress thought that they needed to take out those other words? So you might be right that there are all kinds of synonyms floating out there, and if this statute had all of them, I might be persuaded, I think, to agree with you. But I guess I'm worried about a active, conscious effort on Congress's part to exclude certain words that I now hear you wanting us to read back into this statute.

Brian H. Fletcher: So I think maybe if there was any reason to think in the legislative history in the context that Congress intended to do that, that the reason why they wanted to do that was that they wanted to not make it a solicitation or aiding-and-abetting statute, which I think we all basically agree it was before, and they wanted to turn it into something else --

Ketanji Brown Jackson: So do you have a theory of why they took out "solicits"?

Brian H. Fletcher: Yeah, I do.

I think one of them is just economy.

As I said earlier, this Court just five years earlier in Hoy had described the prior statute as "induces" or "encourages." So Congress was just using a more concise formulation that mirrored what this Court had used for the prior statute. And I guess the other thing I'd say is, you know, I think the -- the context I think matters here too.

This is the -- the -- what Respondents and the Ninth Circuit are positing Congress did in 1952 was really something extraordinary.

They took this statute that had always been focused on soliciting and -- and aiding and abetting and transformed it into a really very broad ban on speech that would be obviously unconstitutional in many of its applications. And I don't think the Court should lightly attribute that intent to Congress.

And I think also it's significant that after 1952 we have decades more of history.

Congress revisited the statute again in 1986 and kept the "induces" or "encourages" language but otherwise tweaked the statute and then revisited it again in 1996 and changed the penalty provisions.

Ketanji Brown Jackson: What about the --

Amy Coney Barrett: Mr. Fletcher --

Ketanji Brown Jackson: Go ahead.

Amy Coney Barrett: -- I have two questions.

One is kind of focusing on a different part of the statutory language.

Is there a difference between "resides" and "remains?" Because they appear in different sections, and it seems to me like "resides" could mean take up residence in, which might be different than "remains."

Brian H. Fletcher: So I think -- I puzzled over this too.

You know, I think I'm not sure if there's any difference in them.

I think, if by "take up residence in" you're referring to the interpretation that Judge Collins floated in his dissent, where it suggested encouraging someone to reside in might mean take up residence for the first time and not continue unlawful residence, the reason why I don't think that works is because of the description the statute has of the mens rea.

It says knowing that the person's coming to or remain -- residing in the United States is or will be unlawful, and I think that suggests that Congress understood that you could violate the statute by encouraging someone to continue residence that is already unlawful.

Sonia Sotomayor: And that's the --

Amy Coney Barrett: Okay.

Sonia Sotomayor: I'm -- I'm sorry. Go ahead.

No, no, no.

I'm sorry.

Amy Coney Barrett: And my second question is about the effect of the enhancement. So a jury has to find the elements of the enhancement.

Brian H. Fletcher: Correct.

Amy Coney Barrett: Okay.

So, in thinking about this as an overbreadth challenge, I mean, obviously, the substance of offense itself could, standing alone, in a situation where the penalty or the enhancement wasn't applicable, let's just posit that maybe that violates the First Amendment and fails in an overbreadth challenge. You say there's no evidence for someone bringing an overbreadth challenge in a situation like this where you can combine it with the enhancement that requires the financial gain, so I just want to be sure that's right.

Brian H. Fletcher: That's right.

Amy Coney Barrett: That's right?

Brian H. Fletcher: Right.

We don't have -- we haven't seen any precedent for an overbreadth challenge like that, and we don't think allowing the extension of overbreadth to that sort of challenge is consistent with the principles of overbreadth --

Amy Coney Barrett: Yeah.

Brian H. Fletcher: -- which include that if there's a way to sever invalid parts of the statute and leave the rest, courts ought to do that. And we think that's exactly what's true here.

Even if you thought, as your question posits, that the general offense is potentially overbroad, I don't think that would mean that the enhanced offense is overbroad. It's a severable class of offenses.

Sonia Sotomayor: Wait a minute. Here, the enhanced offense includes the first part.

Brian H. Fletcher: That's right.

Sonia Sotomayor: How can you say the first part is invalid and still keep a second part? The second part says you did the -- the second part says you did the first part for money.

Brian H. Fletcher: Correct.

Sonia Sotomayor: So you have to define what the first part permits or doesn't permit, correct? You always have to go to the first part and define it.

Brian H. Fletcher: Correct.

And what I'm positing is that even if you thought -- and we obviously disagree, but even if you thought that the general offense is unconstitutionally overbroad and therefore potentially invalid, the subset of that offense that is defined by the enhanced offense, you could invalidate other applications of the general provision, but there would be no reason to invalidate the subset of applications of the general provision that also carry this enhancement, which has to be found by the jury.

Sonia Sotomayor: Well, you -- you still have to prove that what the lawyer did was aiding and abetting or solicitation, correct?

Brian H. Fletcher: That's our view of what we would have to prove under any of the provisions we have.

Samuel A. Alito, Jr.: Mr. Fletcher, an unusual feature of this statute is that the underlying conduct, remaining in the United States, is not itself a crime. And I can certainly understand that there are situations in which urging someone to engage in certain conduct is more blameworthy than engaging in the conduct itself because the person who engages in the conduct may be in a particularly vulnerable position or may be less blameworthy for some other purpose. But is there some limitation on -- that provide -- does the First Amendment in any way limit the ability of Congress to criminalize the solicitation of conduct that is not itself criminal? We could think of conduct that -- regulatory violations, for example, of speech requirements, speech requirements -- regulatory provisions that -- that limit speech in some way.

Would the First Amendment allow Congress to make all of -- urging somebody to engage in that conduct a crime under all circumstances?

Brian H. Fletcher: I think there'd be a couple of principles that would come into play. I'll tell you first candidly I don't think the Court has ever spoken to that.

To the extent the Court has spoken to this issue, it's done it in cases like Williams and Pittsburgh Press, where it said that offers to engage in or attempts to solicit or induce illegal transactions, even if they're only civilly prohibited, are just outside the protection of the First Amendment.

And I think -- so to say anything beyond that would be new. I -- I think the things that -- principles that might come into play, you know, I can conceive of, if you had a law that targeted just speech that didn't target assistive or soliciting conduct, there might be different issues that would come into play. That's not a concern here because everyone agrees that this statute gets at encouraging and inducing, whether that happens through speech or conduct. And I could imagine, although I'm not so sure so much that this is in the First Amendment that this limitation inheres, but you can posit really absurd hypotheticals about very, very draconian penalties for soliciting things that aren't criminal or are perfectly lawful.

I think, if that happened, you'd have some sort of rationality limit. But I just want to underscore I don't think that's what's going on here because this is, as you said, a circumstance where legislatures might decide that the people being solicited to do the underlying conduct are less blameworthy and more vulnerable, as I think this case well illustrates. And, also, this is a very special circumstance.

It's true that remaining in the country unlawfully is only a civil violation, absent sort of special circumstances.

But it's a civil violation that's subject to a very, very serious civil penalty, deportation and removal. And I think that indicates that this really is conduct that Congress has taken seriously and has made an appropriate determination --

Brett M. Kavanaugh: What do you --

Brian H. Fletcher: -- that soliciting or facilitating it is deserving of punishment.

Brett M. Kavanaugh: What do you -- what do --

Sonia Sotomayor: It's -- sorry.

Go ahead.

Brett M. Kavanaugh: What do you say to the charitable organizations that say, even under your narrowing construction, there's still going to be a chill or a threat of prosecution for them for providing food and shelter and aid and recommending people for scholarships and -- and all the rest? You're familiar with all the hypotheticals.

But they seem to have a sincere concern about that and that it will deter their kind of everyday activities.

That's what a lot of charities do as part of their day-to-day activities with noncitizens who are not in the country lawfully.

Brian H. Fletcher: I think a couple observations.

You know, one is a lot of what they talk about and you just recited isn't speech at all.

It's definitely conduct.

So it doesn't raise First Amendment questions at all. You know, I understand the concern, though, that goes to both about are these activities being chilled, and I'd say that on our view of the statute, you know, the vast -- that that activity is not going to be covered because we think it has to meet the sort of very high bar of aiding and abetting liability as traditionally understood with all of the old soil.

And it's --

Brett M. Kavanaugh: And explain that. Why wouldn't it be covered?

Brian H. Fletcher: Yeah, because I think there are -- there are a bunch of different examples, and I think there are sort of different requirements that would weed out different versions of them.

I think the one that's most relevant to --

Brett M. Kavanaugh: Well, I gave you the food and shelter one.

You know, I want to --

Brian H. Fletcher: Yeah.

Brett M. Kavanaugh: -- I want you to stay here and I'm going to help you, and here's -- which I think is a pretty common part of the conversations and -- and happens all the time.

So is that enough?

Brian H. Fletcher: I don't think so.

You know, I think there's a difference between assuming, taking for granted that people are going to be in the country unlawfully and providing some assistance to them while they are here and taking steps that -- where you associate yourself with the venture and seek by your action to make it succeed.

That's the canonical formulation of aiding and abetting liability. And I just think it's hard to say that a charity that provides assistance to people, including people who are in the country unlawfully, is meeting the requisites of aiding and abetting liability.

Ketanji Brown Jackson: But I don't know why you say that.

I mean, if the venture is -- if the civil violation or the criminal violation is to have the person stay here and remaining here is unlawful, why wouldn't giving them food and shelter that facilitates their ability to stay here violate this statute?

Brian H. Fletcher: Because, Justice Jackson, I don't think -- a couple of different reasons.

You know, one is I don't think it's going to have the requisite intent at least in the vast majority of the cases.

I think all of these organizations are describing themselves as wanting to provide food and shelter for people who need -- who are in need, who need food and shelter.

Ketanji Brown Jackson: What if they -- what if they limited their mission? If they limit --

Brian H. Fletcher: To just people who are here unlawfully?

Ketanji Brown Jackson: Yes.

Yes.

Brian H. Fletcher: Yes.

Ketanji Brown Jackson: We are limiting our mission.

We see a bunch of people in our community who are here -- we know they're here unlawfully, but they're also starving, and what we've decided to do is make sure that they're not on the streets, they're not exposed to the elements.

We're giving them food and shelter.

Brian H. Fletcher: Yeah.

I think I'd give the -- the same -- a version of the same answer but just to say that even then, I don't think that's acting with the purpose of keeping those people in the country when they would otherwise leave.

John G. Roberts, Jr.: Are there any --

Brian H. Fletcher: I think it would be accepting --

John G. Roberts, Jr.: -- any examples of prosecutions in those cases?

Brian H. Fletcher: No, absolutely not, Mr. Chief Justice.

And, you know, likewise, you could imagine, I think, as I -- one of the things I said earlier is that we would take cases under this statute the same way you take cases under other aiding-and-abetting statutes. You know, you can imagine there are a lot of social services organizations that provide services and counseling to people who are engaged in unlawful activity, and I'm not aware of cases that suggest that the provision of those services to someone who happens to be engaged in unlawful activity aids and abets those activities.

Sonia Sotomayor: Well, we do know that the Customs department made a list of all of the people, religious entities, the lawyers, and others who were providing services to immigrants at the border and was saying that they intended to rely on this statute to prosecute them.

You're saying to me it didn't happen.

Congress issued a subpoena to many of these organizations, did a lot of investigation as to what was said. So how do we tell all those people not to chill speech because the only thing being punished under this statute, unless you want me to add that it has to say that the statute requires something more than just words, we're criminalizing words related to immigration. And I thought there were only certain statutes that were immune to First Amendment challenges, obscenity, fighting words. Otherwise, everything else is subject to the First Amendment and strict scrutiny. So why should we uphold a statute that criminalizes words, makes the punishment five years, which is rather significant? I know of no other statute where aiding-and-abetting punishment or solicitation punishment is greater than the punishment we're giving the person who's going to commit the crime.

But that's what we're doing with this statute.

It's a first of a kind.

Brian H. Fletcher: A couple thoughts, Justice Sotomayor.

I think one of the traditional categories of speech that is outside the First Amendment is speech that -- this is straight from Williams -- is speech that seeks to induce or commence illegal activities. Our view is that that's what this --

Sonia Sotomayor: If something -- if something is going to be illegal, but people enter the United States illegally all of the time and they're here, they're remaining, but you would have to prove that they're remaining because of those words? Are you going to -- are you willing to take that part of the element? Because that would make sense to me.

Brian H. Fletcher: We're willing to take all of the soil that comes with the idea of --

Sonia Sotomayor: So do you believe --

Brian H. Fletcher: -- aiding and abetting and solicitation.

Sonia Sotomayor: -- that the soil includes that the government has to prove that the words actually is what caused that person to remain?

Brian H. Fletcher: No, I -- I don't think that's a requirement of traditional aiding and abetting.

Sonia Sotomayor: So why not? Because that's what I think words that have to do with inducing a crime is, that you want the crime to succeed and that you have to make yourself a part of the principle of succeeding in that crime.

Brian H. Fletcher: So, if -- if that's what you think aiding and abetting connotes, then we're -- that's actually a further reason not to hold this statute invalid as overbroad. It means the statute has an even narrower of a reach.

Sonia Sotomayor: Well, no, no, you tell me because I think we're going to talk to the grandmother who lives with her family who's illegal or who are noncitizens.

The grandmother tells her son she's worried about the burden she's putting on the family, and the son says, Abuelita, you are never a burden to us.

If you want to live here -- continue living here with us, your grandchildren love having you. Are you -- can you prosecute this? And, if not, why not? So what do you tell the grandmother?

Brian H. Fletcher: I think not, Justice Sotomayor.

I think it's very hard to make out --

Sonia Sotomayor: Don't -- stop qualifying with "think," because the minute you start qualifying with "think," then you're rendering asunder the First Amendment.

Brian H. Fletcher: Justice Sotomayor --

Sonia Sotomayor: People have to know what they can talk about.

Brian H. Fletcher: Justice Sotomayor --

Sonia Sotomayor: Once you create a lack of clarity in the law, then we're not writing to clarify it.

Brian H. Fletcher: Justice Sotomayor, I don't think it's possible for me or for this Court to define how these principles will apply in all of the different factual circumstances that we can imagine, and I think the fact that we're trying to engage in that exercise is one of the problems with overbreadth analysis. What we would do is have this Court say, not the government say but this Court say, and write into law --

Sonia Sotomayor: No --

Brian H. Fletcher: -- the idea --

Sonia Sotomayor: -- you could ask -- you could ask to criminalize actions, not words.

You've chosen to read a statute that criminalizes words.

Shouldn't we be careful before we uphold that kind of statute?

Brian H. Fletcher: We're asking you to go only so far as every aiding-and-abetting and solicitation statute goes and to criminalize words --

Sonia Sotomayor: Well, generally, with aiding and abetting, the person has to do something to make that act come about?

Brian H. Fletcher: I think generally yes. I think there are some circumstances where soliciting someone to commit a crime with words would count, and I'm not willing to give that up here because our position is the same aiding-and-abetting principles ought to apply in both contexts. But, if you have a narrower conception of aiding and abetting, that is only all the more reason to conclude that this is a narrow statute that doesn't trench on the First Amendment.

John G. Roberts, Jr.: Justice --

Sonia Sotomayor: Can I ask some -- I'm -- I'm sorry.

Go ahead.

John G. Roberts, Jr.: Go ahead.

Sonia Sotomayor: There was an intent requirement asked for here.

You say it was broader than you think it should have been given, but we've had a number of cases this term -- Ciminelli, Percoco, Dubin, now this case -- where the government is exceed -- conceding that the statute read by its plain terms is too broad.

And they -- you come back to us and say read it more narrowly.

But you won at a jury trial on a broader charge. If we keep doing as you ask us to, which is to rewriting statutes, are we encouraging the government to continue this practice?

Brian H. Fletcher: I don't think so, Justice Sotomayor.

And, again, we're not asking you to rewrite the statute.

We're asking you to give these words the same meaning they have --

Sonia Sotomayor: Well, you said the jury instruction wasn't consistent with this.

Brian H. Fletcher: So that -- that's right, Justice Sotomayor.

This, in fairness --

Sonia Sotomayor: And in those other four cases, it wasn't consistent with this.

We -- we keep -- you keep coming here and admitting that statutes have to be read in a different way when you argue the opposite below.

Brian H. Fletcher: So let me put this case in context, Justice Sotomayor.

This case was tried in -- before Sineneng-Smith came up, before the Ninth Circuit called for supplemental briefing on overbreadth, and it really injected this whole constellation of issues and concerns about a broad reading of the statute that didn't really exist before. And at the time, I think it was reasonable for the government to support the model jury instruction, especially because no one seriously argues that the speech at issue, the conduct really at issue here was protected by the First Amendment. So I acknowledge we didn't write the instructions at the time of the trial the way that we would write them now with the benefit of five or six years of experience and a lot more airing out of the arguments --

Sonia Sotomayor: Well --

Brian H. Fletcher: -- and I acknowledge you should send the case back to the Ninth Circuit and let the Ninth Circuit decide what's appropriate in light of that.

John G. Roberts, Jr.: Justice Thomas, anything further? Justice Alito, anything further? Justice Kagan?

Elena Kagan: Mr. Fletcher, so, again, I want to assume your version of the statute as to "encourage" and as to the mens rea.

Now I want to make two further assumptions, okay? One -- we can come back to those assumptions, but I just want you to assume them. The first is that the statute, even as interpreted by you, would, in fact, encompass the wealth of examples of people of various kinds, friends, neighbors, doctors, whatever, saying to people, I really think you should stay, and saying that knowing that they're in the country unlawfully, having all the intent that -- and so the -- my first assumption is that all of those communications are within the statute. My second assumption is that for one or another reason, maybe it's what Justice Alito said about the fact that this is civil conduct, maybe it's for another reason, my second assumption is that this statute as applied to those people would -- would be unconstitutional. And now I want you to tell me how to do the overbreadth analysis on this, because I -- I think I might say to you, I can imagine that there's, like, a whole -- a huge number of such communications taking place every day because, for every person who's in this country unlawfully, there are probably some number of people who want that person to stay, family members, you know, whatever. So how do we think about the overbreadth on those two assumptions?

Brian H. Fletcher: So taking those assumptions, you know, the Court has -- never has said explicitly you can't reduce overbreadth to math.

You know, it's -- has to be substantial and it has to be substantial both absolutely and in relation to the plain -- statute's plainly legitimate sweep. I take it based on those assumptions that you would say that's substantial.

That's a substantial number of --

Elena Kagan: Well, I'm -- I'm asking you sort of.

Brian H. Fletcher: No, no, it -- in --

Elena Kagan: You know, how do you even go about thinking about that question?

Brian H. Fletcher: So I guess I'd say maybe that's substantial in the absolute sense. I guess I would say, though, that the Court has also emphasized the real costs of overbreadth in terms of invalidating permissible applications of the statute and that that's something that has to be borne in line in the relative analysis. And at least I haven't -- I can't purport to have read every one of the Court's overbreadth cases, but in the vast majority of them, the Court says either, you know, the vast majority of the applications of the statute are unconstitutional, or there's just no core of constitutional applications. I don't think either of those things -- even granting your assumptions, I don't think either of those things would be true here. And the other thing that the Court has said is it can't just be theoretical.

We want some realistic demonstration of chill because this is ultimately -- overbreadth is sort of a prudential judicial decision that we're concerned about chilling in the real world, understandably, and so we're going to depart from traditional principles by letting people whose conduct isn't protected assert the rights of others, in essence, and there may be reason to do that, but we should do it very carefully. And I guess, I think, you have almost a textbook case here for whether we know there is not a chill because this statute was on the books in basically the same form for 70 years, and no -- it was only used --

Elena Kagan: And how is that argument -- because it's a strong argument -- how is it different -- sometimes the government comes in and says, -- says, essentially, don't worry, we're never going to apply the statute in these circumstances. And we always say back, it's like, well, that's very nice, you can stand up there and say it, but we're not taking your word from it.

Brian H. Fletcher: Yeah.

Elena Kagan: How is this different from that?

Brian H. Fletcher: So in a couple ways.

I mean, one is that to the extent that we're saying that here, mostly what we're saying, and I guess maybe this is fighting your -- your premises a little bit, but we're not just saying take our word for it.

We're asking you to write into the statute -- into your decision that the statute has the limits that we say it has in ways that we won't be able to get around in the future. I understand you might think we're assuming here that that doesn't fully solve the problem and what to do --

Elena Kagan: Right.

Brian H. Fletcher: -- about it then.

And then I guess I'd say then we're in this special world of -- of overbreadth, right, which is a departure from usual standards.

You're not just interpreting the statute.

You're not just asking is it constitutional as applied in a particular case where you sometimes say we're not willing to take the government's word for it. You're saying are we going to do this extraordinary thing and depart from ordinary principles of adjudication.

And there I actually do think it's fair to say, yeah, we're going to demand a real showing of chill, and I think, here, this is not some newly passed statute where we're all just sort of guessing about what might happen.

We have a lot of history. And the thing that raised concerns, the thing that got the amici to write the briefs and to raise all the hypotheticals that we've now spent all this time debating, was the Ninth Circuit's invitation to imagine broad interpretations of the statute in order to strike it down.

There really wasn't a concern about it during all of the many decades it was on the books before that.

Elena Kagan: Thank you.

John G. Roberts, Jr.: Justice Gorsuch? Justice Kavanaugh?

Brett M. Kavanaugh: You've reassured us with your narrowing construction just take aiding-and-betting law, solicitation law, and bring that old soil here.

And that -- that is a good answer, but I think it still raises questions because the underlying offense is so different from bank robbery or carjacking or securities fraud.

It's just existing here as the underlying offense, and I don't know if that should affect how we think about it and just wanted to get your response to that because that makes it seem a lot broader. You wouldn't say providing food to the bank robber necessarily is, you know, a meal, is -- is aiding and assisting the -- the -- aiding and abetting the bank robbery, but, if the underlying offense is just being here, that -- that seems a little different. Should that affect how we think about it, or how do you just answer that concern?

Brian H. Fletcher: Yeah, so it's -- it's a fair concern.

I -- I'd say a couple things. You know, one is there are other offenses that they -- may not get the -- the just being here concept, but there are aiding-and-abetting concerns about other relatively minor offenses, you know, the tax things, the sort of draft evasion, drug use, things like that. The law is capable of dealing with this, you know, aiding-and-abetting minor offenses that happen a fair amount.

So I think that helps with one set of concerns. The -- the being here concern, I guess I do think you could take into account the nature of the offense in deciding sort of are the requisites of aiding and abetting liability met.

One part of that answer might be what I said to Justice Jackson, that having the intent to help someone, assuming they are going to be here, isn't necessarily the intent that they remain here. Another thing might be, you know, the -- the aiding-and-abetting doctrine demands that you associate yourself with a venture and seek by your action to make it succeed.

And I suppose you could take account of what the venture here is in deciding sort of what level of words or action are necessary to constitute facilitation in -- in that context. So I guess I do think that traditional aiding-and-abetting principles would allow those sorts of things to be taken into account.

Brett M. Kavanaugh: Thank you.

John G. Roberts, Jr.: Justice Barrett?

Amy Coney Barrett: Mr. Fletcher, so you've pointed out, and -- and I agree with you that it's interesting, kind of odd, it strikes me as unusual, but I haven't done a study to see, to have an overbreadth challenge to a statute that's older, because all of these overbreadth challenges invite a string of hypotheticals, but, as you say, we have a track record. Can you think -- have you looked at it? Are there overbreadth challenges that have succeeded in the past where we have this much data?

Brian H. Fletcher: So I don't know, candidly.

I can't -- I'm not aware of one of the Court's recent cases where this has come up, you know, Stevens, Alvarez, those sorts of cases are relatively newer laws. But the reason I don't want to say definitively that there isn't one is that I think some of the earlier laws involved state statutes, and I just haven't traced back exactly how old they are.

But I -- I'm certainly not aware of anything where you have sort of the track record going the other way. You know, not only is it old, but also we have such a strong empirical track record against the very broad interpretation.

And, I -- you know, I think that's relevant not just to overbreadth but also to what the statute means because Congress has been coming back and amending the statute and revisiting it against the backdrop of that narrow application of the statute.

Amy Coney Barrett: Well, and speaking of state statutes, so we have some amicus briefs saying that the -- lots of states have language like this.

It's possible that lots of statutes would then succumb to First Amendment challenges of this sort. Have there been similar overbreadth-type concerns litigated, especially since Sineneng-Smith, about other solicitation statutes or other induce-and-encourage statutes?

Brian H. Fletcher: It -- it comes up occasionally.

They don't get a lot of traction. You know, one example that we cite in our brief is the Ford versus State case out of Nevada, which is about solicitation of prostitution.

Amy Coney Barrett: Prostitution.

Brian H. Fletcher: Very similar statute. You know, it's induce, encourage, or persuade, coerce to -- to --

Amy Coney Barrett: Yeah.

Brian H. Fletcher: -- enter into prostitution, and the defendant tried an overbreadth challenge there.

I think we also cite a Minnesota case.

So there are examples out there, but, frankly, courts have not had much difficulty dismissing them, either because you can't imagine circumstances where the aiding and abetting or solicitation would actually be protected, or because, even if you could, that's such a sort of edge case that it doesn't call for the application of overbreadth.

Amy Coney Barrett: Thank you.

John G. Roberts, Jr.: Justice Jackson?

Ketanji Brown Jackson: So I guess I'm trying to figure out, looking at all the other provisions in this statute, what -- what is the core constitutional application of this? I mean, you sort of responded to Justice Kagan's question in saying that if we can identify that and we understand that it's there, that would be a reason not to strike it down. But I am struggling, especially, for example, with the part of 1324 here that is, you know, small division (v)(II) that itself has an aiding-or-abetting piece to it.

So it sounds like Congress was covering aiding and abetting to some extent in another part of this same statute.

So, if we read this one to be aiding and abetting too, what are we -- what is it really covering?

Brian H. Fletcher: It's a different kind of aiding and abetting.

So the Romanette (v) --

Ketanji Brown Jackson: Yes.

Brian H. Fletcher: -- aiding and abetting is aiding and abetting violations of the preceding clauses of 1324(a)(1)(A).

So aiding and abetting, bringing someone to the border in violation of clause (i) or harboring or transporting someone within the country in violation of clauses (ii) or (iii), that sort of aiding and abetting is covered by (v).

Ketanji Brown Jackson: All right.

And what -- what is the aiding and abetting in (iv) that could be aided and abetted per (v)?

Brian H. Fletcher: So it -- the aiding and abetting that is covered in (iv) is assisting someone to enter in -- or remain in the country unlawfully.

That's the core constitutional application of (iv).

That's what it does.

And if you -- the way you would violate (v) is if you aided and abetted someone who was soliciting or facilitating people to enter into the country unlawfully --

Ketanji Brown Jackson: I see.

So you're -- you're helping the person who's doing it --

Brian H. Fletcher: Mr. Hansen's helpers --

Ketanji Brown Jackson: -- in (v).

Okay.

Brian H. Fletcher: -- for instance.

Yeah.

Ketanji Brown Jackson: All right.

So, in the (iv), you say it's aiding and abetting or soliciting is the -- is the constitutional application of (iv), and we -- we're -- we're to look at aiding and abetting and the old soil that comes with it.

And Justice Kavanaugh raises an interesting point, which is, wouldn't providing provisions to an -- a -- a bank robber who you knew to have committed this crime and is here, wouldn't that be considered aiding and abetting? And, if so, why isn't the nonprofits who are providing these kinds of provisions to people who are remaining in this case -- in -- in the United States in violation of the law also a violation of this?

Brian H. Fletcher: So, yes, providing tools, you know, a gun, a mask to a bank robber knowing that he's going to use them to rob the bank and intending that he use them to rob the bank, that's aiding and abetting the bank robbery. I think the reason why I don't think the provision of food or something like that to a noncitizen who happens to be here unlawfully qualifies as aiding and abetting --

Ketanji Brown Jackson: What about aiding and abetting after the fact? He's bank -- he's robbed the bank already and he comes and he knocks on the door and you know he's a bank robber and you let him in, you let him stay. And I -- maybe that's harboring, I don't know, but --

Brian H. Fletcher: That -- that's not aiding and abetting at all.

Ketanji Brown Jackson: I see.

Brian H. Fletcher: That's accessory after the fact at best.

Ketanji Brown Jackson: Okay.

Brian H. Fletcher: And 18 U.S.C. 2 covers only accessory before the fact and aid during the crime but not aid after the crime.

Ketanji Brown Jackson: Not aid after.

All right.

One more. The point that Justice Alito brought up with the civil violation, are you asking us to decide that here, or could the Ninth Circuit be tasked with looking into that when we return the case, if we return the case?

Brian H. Fletcher: I guess I have understood Respondent, Mr. Hansen, to be making -- relying on the civil/criminal distinction in service of his overbreadth argument and to suggest that to the extent that section -- clause (iv) would reach aiding and abetting or soliciting conduct that is only a civil violation, that's a First Amendment problem and that that is part of his overbreadth argument.

Ketanji Brown Jackson: But the Ninth Circuit didn't rule on that, right? The Ninth Circuit didn't reach the question of how civil liability interacts with any of this.

Brian H. Fletcher: That's correct because the Ninth Circuit held it overbroad, you know, on a much broader theory.

So I -- I suppose you could -- if you didn't want to reach that question, you know, you -- you could decline to do it, say that the Ninth Circuit's reasoning was wrong, that there may be alternative arguments for overbreadth, and send it back for that purpose.

I guess I view this more as a sub- issue of the overbreadth argument on which the Court granted cert and not as the sort of really distinct issue that the Court usually remands for consideration of.

Ketanji Brown Jackson: Well, we would have to sort of sort it out.

Isn't it complicated to sort of determine the extent to which the speech incident to criminal conduct scenario, which is what I understand you to be relying on, reaches civil conduct as well?

Brian H. Fletcher: I don't think so.

I think the Court crossed that bridge in Gazzam the year after Giboney, which we cite in our reply brief.

It did it again in Pittsburgh Paper.

And then, in Williams, it described, relying on Pittsburgh Paper, a civil case, the unprotected category of speech that seeks to induce or commence illegal transactions.

So we -- we think you've crossed that bridge already. Now I'm sensitive to the idea that these are hard questions of aiding-and-abetting law and First Amendment law, and this is an awkward posture to try to nail all of them down in.

And so I do want to emphasize that all we think you have to decide today is that the statute is not overbroad.

And if you want to reserve questions that might arise in an as-applied posture, I think it's perfectly fine to do that.

John G. Roberts, Jr.: Thank you, counsel. Ms. Bhandari.

Esha Bhandari: Mr. Chief Justice, and may it please the Court: Mr. Hansen should prevail here for three reasons.

The government concedes that the statute is unconstitutional under its plain meaning.

Instead, it asks this Court to rewrite the statute to prohibit only solicitation and aiding and abetting. But that is Congress's job, and Congress in 1952 took out the very words the government now asks this Court to write in: "solicit" and "assist." And in 1986, Congress took out the required intent.

The government has cited no case in which Congress has used the terms "encourage" and "induce" alone to stand for solicitation or aiding and abetting. Second, even if you construe the statute as limited to solicitation or aiding and abetting, this Court should not create a new category of unprotected speech, namely, criminal solicitation of civil law violations.

The historical roots of that exception are limited to solicitation of crimes and for good reason. If the justification for treating speech as categorically unprotected is that it is integral to conduct that the government can punish, then the speech cannot be punished more harshly than that conduct. This Court has consistently resisted prior invitations to expand categories of unprotected speech and should do the same here. Otherwise, Congress and the states will be free, without any First Amendment scrutiny, to criminalize speech soliciting violations of the vast range of administrative and regulatory laws that govern us today, from mask and vaccine mandates to parking ordinances. To deny the government's requested expansion would only mean that it would have to satisfy ordinary First Amendment scrutiny when it regulates such speech. And, finally, even if the Court were to adopt the government's narrowing construction, Mr. Hansen's convictions must be vacated because the jury was not instructed to apply the government's narrowing construction, and the government argued that the plain meaning of the statute should control. I welcome the Court's questions.

Clarence Thomas: Is speech the only component of the First Amendment subject to overbreadth?

Esha Bhandari: Justice Thomas, I -- I think that speech is the realm in which this Court has applied overbreadth analysis.

I --

Clarence Thomas: Has it ever applied it in any other aspect of -- of the First -- First Amendment?

Esha Bhandari: I'm not aware of any context in which it has applied overbreadth to other aspects of the First Amendment, no, Justice Thomas.

John G. Roberts, Jr.: Counsel, you focused on the amendment, what was it, '52 or '56?

Esha Bhandari: 1952.

John G. Roberts, Jr.: '52. Suggesting there was a purpose to take out the two provisions that were -- the two words that were taken out and the two left in. What -- what was that purpose? What is -- in other words, what is the distinction you see between the words that were left in and the words that were taken out?

Esha Bhandari: I think we can go by what Congress actually did.

Congress removed the narrower verbs, "solicit" and "assist," and left in the broader verbs, "encourage" and "induce." That was a deliberate choice.

If Congress wanted to write a solicitation law, it could have left in the verb "solicit." And I note that in 1984, which was two years prior to the 1986 amendment to the statute, Congress drafted 18 U.S.C. 373, which is the general prohibition on soliciting a crime of violence, and Congress took a very different approach in writing that solicitation statute. It required specific intent to solicit a particular felony, and it required circumstances strongly corroborative of that intent. And the Senate committee report noted that mere encouragement is not enough and that the specific intent requirement was especially important not to trench on First Amendment concerns.

John G. Roberts, Jr.: So we would have to see a -- a distinction along the lines you suggest between "solicit" and "assist" and "encourage" and "induce" to the extent that the -- the former are broader or narrower?

Esha Bhandari: "Encourage" and "induce" are narrower -- are -- are broader terms.

"Solicit" and "assist" are the narrower terms. And I also think that you can look at the pattern of amendment to see that Congress over time has broadened the statute from its initial roots. Initially, it was tied to prohibiting the entry of -- of -- assisting the entry of contract laborers.

Then Congress took away the limitation on contract labor.

It was assisting anyone's entry.

But still, in 1952, it used the verbs "solicit" and "assist" and it required the willfully or knowingly standard. Then Congress removed the mens rea requirement and required only knowledge or reckless disregard, again, an expansion.

And Congress removed the verbs "solicit" and "assist" to leave only the broader terms, "encourage" and "induce," and expanded to remaining in the country unlawfully in 1986. That was its final expansion. So, over time, Congress has consistently shown its intent as evidenced by the plain text to cover much more than solicitation or aiding and abetting.

Amy Coney Barrett: Counsel, let's assume --

Samuel A. Alito, Jr.: May I --

Amy Coney Barrett: Oh, sorry.

Samuel A. Alito, Jr.: Go ahead.

Amy Coney Barrett: I -- I -- I just wanted to follow up on that quickly, and let's just assume that you're wrong about Congress's intent.

Would you concede that if we accept the government's narrowing construction, let's assume the underlying offense is criminal, not civil, would you concede that you would lose your overbreadth challenge if the government is right about the narrower solicitation?

Esha Bhandari: If you were limiting it just to crimes and only to solicitation and aiding and abetting with the requisite intent, then, yes.

But I don't understand the government to be limiting its argument only to crimes.

It --

Samuel A. Alito, Jr.: Well, what -- oh, go ahead.

Amy Coney Barrett: Yeah.

No, my hypothetical changed that.

Esha Bhandari: Yes, yes.

Amy Coney Barrett: Yes, thank you.

Samuel A. Alito, Jr.: Well, that's what I wanted to ask you about.

I understood your second point to be that the First Amendment prohibits the criminalization of the solicitation of conduct that is unlawful but not criminal.

Is that your second point?

Esha Bhandari: That is correct, that --

Samuel A. Alito, Jr.: And -- and you think that's true across the board in all circumstances?

Esha Bhandari: Yes, Justice Alito, because we're talking about whether speech is categorically beyond the protection of the First Amendment.

So anytime you have a law targeting speech, which would cover a solicitation law, the first step is, of course, it's a law targeting speech, you, you know, trigger First Amendment scrutiny. Now, if the law fits within a narrow category of historical exception, like obscenity and so forth, then it doesn't have to satisfy scrutiny.

Samuel A. Alito, Jr.: Yeah, okay.

So solicitation -- soliciting someone to engage in prostitution, that's unconstitutional. Criminalizing the solicitation of someone to engage in prostitution, that's -- that's unconstitutional.

Esha Bhandari: No, Justice Alito. That can be regulated as a transaction.

And this Court in Williams made clear that you can -- you can render certain transactions illegal.

So speech that effectuates those transactions, for example, if I say to you, I want to buy drugs, that is proposing an illegal transaction.

That speech can be regulated.

And that was the case with Williams where it was this speech about a transaction involving child pornography.

Samuel A. Alito, Jr.: All right.

Not soliciting a prostitute but encouraging someone to engage in prostitution, that cannot be criminalized?

Esha Bhandari: If prostitution is not a crime --

Samuel A. Alito, Jr.: Yes.

Esha Bhandari: -- then such speech is not categorically unprotected.

It would just be subject to First Amendment scrutiny, which means that if the government had a compelling interest and narrowly tailored that law, they could do so.

But -- but that is the key difference, Justice Alito, between solicitation as used in the sense of transactions versus solicitation of a third person to do something.

Samuel A. Alito, Jr.: So encouraging someone to engage in prostitution is not necessarily -- criminalizing that is not necessarily unconstitutional, it just has to satisfy strict scrutiny, and you would apply the same thing here?

Esha Bhandari: That is correct, Justice Alito.

Any law burdening speech where it makes the speech a crime and it's soliciting underlying civil violations would be subject to -- if it's content-based, it would be subject to strict scrutiny.

Samuel A. Alito, Jr.: Encouraging someone to commit suicide?

Esha Bhandari: I think --

Samuel A. Alito, Jr.: Same thing?

Esha Bhandari: Same thing.

If it's not a crime, you just subject it to ordinary First Amendment scrutiny, which the Minnesota Supreme Court did in Melchert-Dinkel.

It applied strict scrutiny to a law encouraging suicide.

In that case, the law did not satisfy strict scrutiny, but a narrowly tailored law very well might.

Samuel A. Alito, Jr.: What if the person who is encouraged to commit suicide is intellectually disabled, particularly vulnerable to that encouragement?

Esha Bhandari: Again, I think, if a state or Congress passed a law that was directed specifically at encouraging someone in that vulnerable state and narrowly tailored it, it very well might pass strict scrutiny, but on the --

Samuel A. Alito, Jr.: And why would that be? Because that's an important interest? Protecting those people is an important interest?

Esha Bhandari: That's correct.

I think the strict scrutiny analysis builds into it the interest that the government has in criminalizing speech.

And so --

Neil Gorsuch: But isn't -- isn't --

Samuel A. Alito, Jr.: Then why wouldn't that be satisfied here?

Neil Gorsuch: Yeah.

Esha Bhandari: In this case, there are --

Samuel A. Alito, Jr.: Government has a -- now people disagree about this, but the law expresses a strong interest in regulating who is allowed to remain in the United States.

Esha Bhandari: I think that that standard would not be satisfied here even if you read this as a narrow solicitation law because it would reach solicitation of civil law violations that Congress itself has incentivized people to engage in. So, for example, when Congress has provided under the Violence Against Women Act a pathway to lawful status for women who have been battered or a pathway to lawful status for victims of trafficking or a pathway to lawful status to people who overstayed their visas but married a U.S. citizen, in all of those cases, lawyers, community members who provide Know Your Rights training and materials are entitled to tell people about those paths to lawful status if they remain even unlawfully.

And I don't think --

Neil Gorsuch: Counsel, I'm --

Esha Bhandari: -- the government could claim a compelling interest.

I apologize.

Neil Gorsuch: -- I'm -- I'm sorry to interrupt.

Are -- are -- are you finished?

Esha Bhandari: Yes.

Neil Gorsuch: So I -- I just want to follow up on Justice Alito's line of questioning with you because I think I heard you say there could be some examples where you could criminalize the act of soliciting or aiding and abetting an underlying civil offense, whether it's prostitution or assisting a suicide of a vulnerable person.

And once -- once -- you said there could be circumstances at least possibly where such a law would be narrowly tailored and would -- would survive. And how does that affect the overbreadth analysis? Because now we're saying it -- the civil/criminal distinction isn't what matters, there are some categories of cases, even -- even with respect to underlying civil offenses, where the government can regulate aiding and abetting or soliciting more -- more specifically and dramatically than the underlying offense. So now we're -- we're -- we've narrowed the category of dispute.

How does that affect the overbreadth analysis?

Esha Bhandari: I think, if you are talking about a world in which you've narrowed the statute to solicitation only, so leaving aside the just pure encouragement and inducement --

Neil Gorsuch: Yeah.

Esha Bhandari: -- and you've narrowed it in that way, I think the statute would still be substantially overbroad because it reaches solicitation of civil violations that I don't think even the government would claim an interest in criminalizing. And, again, I point to the example of lawyers advising people about a pathway to lawful status that Congress itself has incentivized.

And I think it would raise major First Amendment concerns for the government to be able to criminalize lawyers and others providing truthful information about legal options.

Neil Gorsuch: I would -- I would certainly imagine that there would be a -- a very strong as-applied challenge in those kinds of cases, but an overbreadth analysis, we're supposed to ask -- I -- I don't know what we're supposed to ask, but something like, is it impossible to apply the statute constitutionally or is it really, really almost unlikely it'll ever be applied constitutionally. And you're -- you're positing a narrow set of cases in which it would be a good First Amendment challenge might exist, but, again, how does -- how do we -- how do we struggle with this overbreadth? What -- when is enough enough?

Esha Bhandari: I -- I would point you to the -- the approach the Court took in Free Speech Coalition and in Stevens, where the inquiry is simply does the statute -- even if you narrowly construe it, does the statute reach protected speech that people engage in? Is it realistic speech that they engage in every day frequently? In Stevens, the Court didn't do an empirical analysis.

It looked at the fact that many people engaged in hunting videos actually as a strength of the overbreadth challenge, because it said, you don't need to look at who's not speaking.

The fact that people do violate the statute, as the government construes it, is a reason for us to apply the overbreadth remedy. Similarly, in Free Speech Coalition, this Court looked at the fact that mainstream movies such as "Romeo and Juliet" or "American Beauty" might fall within the terms of the statute, and it didn't attempt to quantify examples of mainstream movies vis-à-vis actual --

Elena Kagan: Mr. --

Esha Bhandari: -- child pornography.

Elena Kagan: -- Mr. Fletcher points out that this statute has been with us a long time and we've just never seen such prosecutions or, at most, just a handful of cases. So, in that circumstance, isn't our task made easier with respect to overbreadth if you can just say look at the history?

Esha Bhandari: Two responses, Justice Kagan.

First, prosecutions are not necessary. In Stevens and in Free Speech Coalition, this Court didn't require actual prosecutions of protected speech. And in Stevens, this Court invalidated that law 11 years after it had been passed.

So that law had been on the books for a while.

In Free Speech Coalition, it had been at least five years.

In Virginia v. Black, the plurality opinion holding that statute overbroad, that law had been on the books for 35 years. So the length of time and the lack of prosecutions isn't the inquiry because, on a facial challenge, the facial validity of a law does not depend on the government's prosecutorial choices.

Elena Kagan: Well, doesn't the prosecutorial choice have something to do with what kinds of activity the law chills?

Esha Bhandari: Even if you look at the prosecutorial activities relevant to that, I think there's realistic danger of chill here just from the fact that the government in recent years has invoked Section 1324 in investigative activities, as the amicus brief from the Reporters Committee for Freedom of the Press noted.

The government doesn't treat Section 1324 as a dead letter.

It's still available to open investigations even if they never charge someone.

The City and States' amicus brief notes that they have to certify compliance with 1324 to receive funding in certain instances. But, finally, I would just point to the government's ever-changing positions on what the statute means as presenting a chilling effect to the public.

Amy Coney Barrett: But -- but, in addition, just to follow up on Justice Kagan's point, in addition to prosecutions, we also have a record of activity not being chilled.

I mean, no one's pointed out there are charitable organizations, to use Justice Kavanaugh's hypothetical, that are not giving food and shelter and resources or that lawyers are afraid to give advice.

I mean, the statute's been on the books for a long time, and there might -- there's an absence of prosecutions.

There is also an absence of demonstrated chilling effect.

Esha Bhandari: This Court has never required a demonstrated chilling effect.

Again, in Stevens and Free Speech Coalition, this Court didn't say the fact that mainstream movies were out there, the fact that hunting videos were out there was proof that nobody was chilled because the -- the overbreadth doctrine is concerned with two main things: one, the chill on people who would conform their behavior to the letter of the law, and that behavior isn't visible to this Court, the people who are not speaking. And, second, it gives an incentive to Congress to craft narrow laws.

So, for example, if Congress made it a felony to criticize the president and only ever prosecuted people who engaged in constitutionally unprotected true threats, that law could then be immunized from challenge if -- if the government could come in and say, no, no, no, this person engaged in true threats, even though all the jury had to find was did you criticize the president --

Neil Gorsuch: Well --

Esha Bhandari: -- yes or no.

Neil Gorsuch: -- it is a little awkward, though, that this case comes up at a posture with Mr. Hansen, who I -- I don't think anybody could say he's been chilled from speaking.

And I mean, he's had no problem soliciting people here in this country and -- and defrauding them to the tune of lots and lots of money. I mean -- I mean, he is -- he has victimized these people and it may be a poster child for a situation in which the -- the underlying offense might be modest, but you might want to criminalize it because he's taking advantage of very vulnerable people.

And -- and it just seems awkward that we're in -- in a posture where we're asserting third-party rights of -- of really hypothetical situations without an example.

Esha Bhandari: In this case, Mr. Hansen is asserting his own legal rights.

I -- I want to be very clear.

Neil Gorsuch: Is he -- is -- how is he being affected? How are his speech rights being affected?

Esha Bhandari: Mr. Hansen, he -- as a defendant, he is entitled to have the government prove facts or elements that would make out speech that is constitutionally unprotected, and that did not happen here. So we -- we don't disagree that he victimized many people and, for that, he was convicted under fraud counts and -- and received 20 years, and none of those will be disturbed here. But, under the encouragement provision, the government did not have to prove that he lied to anyone, that he deceived anyone, that he engaged in any false speech.

All they had to show was that he encouraged or induced people.

No mens rea requirement.

No intent.

Neil Gorsuch: Well, that's going to be -- the -- the -- the -- the government concedes that that has to be resolved on remand, and it seems highly unlikely that he's going to prevail under that standard on remand.

I -- I -- I -- I think we'd agree on that.

I mean, he -- he had every intent in the world to keep these people here to -- to -- to -- to take their money with no prospect they'd ever actually seek -- obtain any kind of relief.

And that's what -- those are the facts. And -- and I guess, again, it's just a little awkward that we're worried about chilling other people's speech and it has nothing to do with the case before us.

Esha Bhandari: I would argue that if you were reconsidering overbreadth doctrine, this wouldn't be the case in which to do this because the government secures convictions under the broad terms of the statute.

That goes to the chilling effect. The broad terms of the statute that are on the books, which the government uses to secure convictions, that in and of itself is enough to tell the public that if I engage in any conduct that the government doesn't like, even if it doesn't amount to solicitation or aiding and abetting with all of the many requirements that the government says should be read in, it won't matter because I could be convicted by this jury.

Ketanji Brown Jackson: And, in fact, that happened in this very case, right? I mean, didn't the government object to narrow instructions that would have tailored this to the kinds of things the government is saying right now?

Esha Bhandari: The -- that is correct. The government --

Ketanji Brown Jackson: So, in open court, with respect to this particular defendant, the government said, no, no, the statute is really broad and it covers all this kind of conduct, did they not?

Esha Bhandari: That is correct.

The government objected to those very elements in this case, in Sineneng-Smith in the district court, and in the Tenth Circuit case of Fernandez --

Neil Gorsuch: And if --

John G. Roberts, Jr.: Do you disagree --

Neil Gorsuch: And if --

John G. Roberts, Jr.: -- do you disagree with Mr. Fletcher that they've never brought such a prosecution?

Esha Bhandari: I -- I don't disagree that they haven't brought such a prosecution. What I submit is that that's not relevant to the overbreadth analysis because the government, you know, has many other tools to threaten invocation of Section 1324 as it has done, as the amici have pointed out, and -- and mainly because in a facial challenge, the government's choice not to prosecute to the full extent is not relevant, just as in Stevens it was not relevant that the -- the government essentially had promised never use -- to use the statute that way. I -- I do want to go back to, Justice Gorsuch, your question about this particular defendant and his conduct. In R.A.V. v. St. Paul, the -- the opinion for the Court noted that just because someone engages in conduct that could be regulated in one way doesn't mean that the government can regulate it in another way that violates the First Amendment. So there you had a defendant who burned a cross in a family's yard, and Justice Scalia's opinion for the Court noted that arson laws, property damage laws could have gotten that defendant's behavior, but that didn't mean the application of a viewpoint discriminatory law was permissible with respect to him.

Neil Gorsuch: I -- I -- I totally accept that, and I totally accept as well your -- your point, your good point, that -- that if -- even under the government's view a remand is going to be required, and you'll have an opportunity to make arguments.

How successful they will be is an interesting question. But, what -- in an overbreadth challenge, isn't it surely relevant that your client's not likely to benefit from whatever we do? And, -- and as the Chief Justice just pointed out, there's never been a prosecution of some of these hypotheticals we've been discussing, and the book -- the -- the law has been on the books for 70 years. I mean, it is an extraordinary thing for this Court to grant third-party standing, which is effectively what we're being asked to do here.

Why would we do it in this -- under the -- under those circumstances, when an as-applied challenge would always be available should the government -- because I don't take them at their word either, okay? But should they ever go after somebody who actually meets one of these hypotheticals that have been very interesting this morning, they would have a good First Amendment defense.

Esha Bhandari: Justice Gorsuch, I -- I would note the law in its current form has only been on the books since 1986, absent the mens rea requirement.

And the government secures convictions, as it did in this case, without showing any of the elements that would make someone's speech unprotected. So I understand that, you know, Mr. Hansen's behavior was not commendable here, but the government didn't have to prove any of the narrowing elements that would make this statute permissible.

And so I think that is one reason that this Court should make sure that this law doesn't in the future chill those, you know, who have engaged in the type of speech that Justice Kagan mentioned.

Ketanji Brown Jackson: And isn't it impossible to really figure out how many people have been chilled? I mean, I guess I'm trying to understand how it would work if we didn't have some sort of an overbreadth argument, because, on the one hand, you can look at the situation and you can say the government has never charged any of these people who are actually doing this, but we don't know -- by "this," I mean, for example, Justice Kavanaugh's example of, you know, helping -- helping noncitizens by giving them food and water. Fine.

The government has never charged any, but we don't know how many other people would have engaged in that kind of, you know, speech and -- and action if it weren't for this law. So it's really hard to know, I think, by looking only at what the government has done, who is being prevented from engaging in First Amendment activity.

Esha Bhandari: That is correct.

And that is one of the overriding concerns of overbreadth doctrine, again, is the concern with people who are silent and whose silence is not visible to the Court.

But --

Neil Gorsuch: And we --

Esha Bhandari: -- I'll --

Neil Gorsuch: -- and we have no record of that here either.

We're just -- we're -- we're just coming up with hypotheticals, right?

Esha Bhandari: Well, what we have is --

Neil Gorsuch: There's no record of of -- of people coming into court and a factual finding of district court on -- on who has been chilled and how.

I mean, that could have happened, but we don't have that here.

Esha Bhandari: Justice Gorsuch, I don't think that would be likely to happen in a criminal case like this.

Perhaps in a pre-enforcement challenge.

But I also note that the amici -- the AL amicus brief noting lawyers have said that lawyers, immigration lawyers, are watching this case very closely and already starting to advise each other on how they may have to curtail the advice that they give to their clients. I -- I also want to emphasize that the government hasn't made very clear the distinction between solicitation and aiding and abetting.

It seemed to conflate those points. Aiding and abetting requires that the principle complete the underlying act.

I -- I'm not sure if the government is saying that that is required here, because solicitation does not require that. The government's also not explained whether "encourage" means solicitation and "induce" means aiding and abetting or vice versa, which of these words apply to which concept. "Solicitation" and "aiding and abetting" aren't the same.

They have different elements.

And the government hasn't explained how this Court could clearly write in those elements in a way that would tell the lawyer or the community activists advising people what their rights are under the law, whether they can remain in the country. And when the stakes of getting it wrong are felony prosecution and five years' imprisonment, people are not going to go anywhere close to the line --

Brett M. Kavanaugh: I thought the --

Esha Bhandari: -- if they can help it.

Brett M. Kavanaugh: -- I thought the government was saying that both solicitation and aiding and abetting were coming in and that the elements of the two offenses would be the traditional elements, both of which require intent.

Esha Bhandari: I agree that both of them require intent, but the government has at various times suggested that you need an act, which I agree is true for aiding and abetting but for solicitation isn't necessarily true. So you're reaching pure speech on the hypothetical of someone simply saying come to my food pantry.

Not engaging in the conduct of actually giving food, just saying come to my food pantry, it's open to anyone who's undocumented, would that constitute solicitation to remain in the country, or someone who runs a domestic violence shelter, for example, telling people who come, knowing that they're undocumented, stay here, it's a safe place, you'll -- you're welcome here, and we don't want you to leave here where you're safe. It -- it's critical that a statute that hits on speech draw clear lines when felony prosecution is at stake.

Congress did not do that here.

And Congress could do so if this Court were to hold that this law simply doesn't say what the government says, and Congress then remains free to draft the narrow aiding-and-abetting or solicitation law if it wishes to.

John G. Roberts, Jr.: Thank you, counsel. Justice Thomas? Justice Alito, anything further? Justice Sotomayor?

Sonia Sotomayor: Yes.

I -- I think you maybe gave up a little bit too much when you were talking about answering Justice Alito's questions and Justice Gorsuch, that there might be cases where Congress could criminalize a civil violation. Did I understand you to say, once you give that up, then this is okay because they can criminalize all civil violations?

Esha Bhandari: Not at all.

In the circumstances in which there is a --

Sonia Sotomayor: I -- I would like to know where to draw that line.

Esha Bhandari: If --

Sonia Sotomayor: I -- I find it hard to borrow concepts of "aiding and abetting" or "solicitation" because, by definition, both of those concepts, as we have traditionally had them in the criminal law, require a criminal act by the perpetrator.

There has to be an act done by the perpetrator.

You have to solicit a crime. We've never had a crime defining solicitation of a civil violation, correct?

Esha Bhandari: That is correct.

This Court has never upheld a criminal solicitation law directed at a civil convict.

Sonia Sotomayor: Now too much, never done it, and, in fact, all of the solicitation and aiding-and-abetting crimes, generally, the punishment is less than the completed act, correct?

Esha Bhandari: That's correct.

Sonia Sotomayor: Perpetrators are treated more -- the perpetrators of the crime are treated more harshly, and solicitation, it's still not -- the punishment has never been as great as the completed crime.

You don't get punished for solicitating -- soliciting arson and get treated as harshly as the arsonist.

Esha Bhandari: I -- I think -- yes.

I want to be very clear about our position, which is that solicitation, criminal solicitation laws, when they are directed at civil conduct, are not categorically unprotected under the First Amendment.

Sonia Sotomayor: All right.

That -- the -- so let's go, because -- let's go there, because when are they not -- protected? When are they categorically protected? I want to know what the difference is, why this one is not protected and others might be.

Esha Bhandari: I think that if you had a law criminalizing solicitation of certain civil violations, you would subject it to strict scrutiny and it would then be a case-by-case analysis. I don't think the government has even attempted to argue in this case that this law would satisfy strict scrutiny with respect to civil violations.

That -- that argument has not been on the table. But I -- I say that only to show that when it comes --

Sonia Sotomayor: But what would qualify? What would -- you -- you admitted that a -- inducing a person of lesser mental ability to prostitution would probably fall into it.

Esha Bhandari: Yes.

I think you could see a spectrum of laws.

Again, it's the normal First Amendment scrutiny.

So where the government has a compelling interest and, of course, narrowly tailors its law and has no alternative to get at that conduct other than criminalizing speech, it might satisfy it. But, on the other end of the spectrum, if a municipality decided to make it a crime to solicit parking violations because everyone in town is just violating the parking violations and paying the fee and so it's decided to make it a crime to solicit that, I don't think that that speech is categorically unprotected under the First Amendment and probably wouldn't satisfy heightened First Amendment scrutiny.

Sonia Sotomayor: So now let's go to why not having an example of a generalized -- of more examples of prosecutions, the Henderson everybody keeps forgetting, but there's at least one prosecute -- prosecution in -- under the 1986 statute. Why do you think the history from '86 to currently shouldn't be viewed as important?

Esha Bhandari: It's not relevant that the government has chosen not to file actual prosecutions of protected speech.

That's never been required by this Court for First Amendment overbreadth analysis, again, for good reason, because a law, if it's facially reaching protected speech, does not become more or less constitutional depending on the government's prosecutorial choices. It's also relevant, however, that the government has ways of chilling speech simply by having the law on the books without filing actual prosecutions. So, for example, when it opens investigations into people and invokes Section 1324, as has happened with journalists, perhaps it might be --

Sonia Sotomayor: What happened in -- with Customs patrol.

Esha Bhandari: With -- with the U.S. Customs and Border Protection, yes.

And --

Sonia Sotomayor: And Congress did subpoenas too of --

Esha Bhandari: That is correct.

And also when it asks cities and states to certify compliance with Section 1324 to receive federal funding, which, of course, could chill those city and state officials from even coming close to the line of violating the encouragement provision for fear of losing that funding. So there are many aspects beyond simple prosecutions that can chill speech, and -- and the government has certainly used some of those tools in the last five years even.

Sonia Sotomayor: Thank you.

John G. Roberts, Jr.: Justice Kagan? Justice Gorsuch? Justice Barrett? Justice Jackson?

Ketanji Brown Jackson: Can I can just ask you, one thing you said was curious to me, that "aid and abet" and "solicitation" have different elements, and so what is then the implication of the government saying, we look at the statute, it says "encourage" or "induce," you should read that to mean "aid or abet" -- "aid and abet" or "solicitation," I guess that carries with it the elements, but is your point that the person who is being convicted or prosecuted under this statute is not going to really know what it is that the government needs to prove in order to establish their liability?

Esha Bhandari: That is correct, Justice Jackson.

The government hasn't specifically delineated which one would apply in any particular case.

It simply says both.

But there are different elements to them. That's why Congress has two separate provisions, 18 U.S.C. 373, which is a solicitation provision, and 18 U.S.C., subsection 2, which is an aiding-and-abetting provision. In this --

Ketanji Brown Jackson: This is not a First Amendment argument, but it still could -- it's something problematic, I think, perhaps about the government's intention of importing both of those concepts wordlessly, silently, into this statute.

Esha Bhandari: It goes to congressional intent and what the text says. So Congress has at various times used "induce" along with "solicit," as it did in 373. At other times, it used "induce" along with "aid and abet," as it did in subsection 2. Now the government doesn't explain here why Congress would not have used "aiding and abetting" and "solicitation" along with "induce" when it previously has used "induce" with those other verbs, and it also doesn't explain why Congress would have mashed up both concepts of "solicitation" and "aiding and abetting" in one statute when they have different elements.

Ketanji Brown Jackson: Thank you.

John G. Roberts, Jr.: Thank you, counsel. Rebuttal, Mr. Fletcher?

Brian H. Fletcher: Thank you, Mr. Chief Justice. I'd just like to say a word about what the statute means, a word about this criminal/civil distinction, and then close with a word or two about overbreadth. So, first of all, about what the statute means.

I understand their position to be that until 1952, this was a permissible statute because it had other words in it, but in 1952, Congress turned it into a prohibition on speech.

And I think that's a pretty extraordinary thing for Congress to have done, and the Court should demand a pretty extraordinary showing before assuming that Congress did it, and I just haven't heard such a showing made. What I've heard is Congress took out some words.

And that's true, but the words it left in had the same meaning and the words it left in were the words this Court had just used to summarize the previous statute. I heard that it took out the mens rea requirement in 1986.

But that's not quite right.

It tailored the mens rea that the offender has to know about the noncitizen's status, knowing or in reckless disregard, but it left in the words "induce" or "encourage." And those are words that we think inherently carry a mens rea requirement. That's what Judge Hand said in Peoni when he was interpreting the words of 18 U.S.C. 2, words like "induce," "aid and abet" carry an implication of purpose.

We think they still carry that implication here. And, finally, I heard that there's no other statute that looks like this.

And that's just not quite right.

You know, the -- the provision of the National Labor Relations Act that was at issue in the electrical workers case that we cite at page 32 of our brief prohibited inducing and encouraging a secondary boycott. And this Court upheld that against a constitutional challenge. The Mann Act, 18 U.S.C. 2422(a) prohibits persuading, inducing, endicing -- enticing or coercing an individual to travel in interstate commerce to engage in prostitution. These are -- this is not an unusual way to convey these ideas. Now I'd like to turn to the civil or criminal distinction, which I understand to be their fallback argument, essentially, to say that even if you construe the statute the way we construe it, they still think it's overbroad because it covers soliciting or facilitating civil violations. As Justice Gorsuch said, I think there's a real question whether even if they're right that there's constitutional questions about soliciting or facilitating civil conduct, whether that meets the high threshold for overbreadth. But I think more fundamentally they're not right about that.

This Court has said in cases like Pittsburgh Press and Gazzam and Williams that soliciting or inducing illegal activities, even if they're only civilly illegal, are not protected by the First Amendment. And I don't really hear them to be contesting that.

Instead, they're -- they want a special rule.

They want to say it's okay to civilly regulate that kind of solicitation and facilitation, but you can't criminally punish it. And that sort of mismatch is just not something that I know of any analog in this Court's First Amendment jurisprudence.

What this Court has always said before is that there are certain categories of speech that are unprotected, and we think this is one of them. Now I take the point that it's unusual to punish the speech or the conduct that solicits or facilitates underlying activity more stiffly than the activity, but that's not a First Amendment rule.

That's a legislative judgment about culpability. Usually, we think that people who solicit or facilitate unlawful activity share the same culpability as the person who commits that activity, but not always, as Justice Alito and I discussed, and not here. And the judgment that Congress made here is that when someone solicits or facilitates immigration violations, they are deserving of more punishment than the noncitizens, who are already subject to removal. We think that's a reasonable judgment. And within the contours of that judgment, I think it's important to emphasize that Congress treated speech and conduct exactly the same. Whether solicitation or facilitation takes the form of speech or takes the form of conduct, this statute treats it identically, and so I don't think it has the effect of treating speech worse than conduct that my colleague describes. Finally, just to say a word about overbreadth.

You know, we've talked about the difficulties of overbreadth analysis, what an extraordinary thing it is, how cautious the Court has been about it.

And I think it's just worth underscoring all of the different ways in which Respondent and the Ninth Circuit are trying to stretch overbreadth doctrine. This Court has said that limiting instructions are especially important in overbreadth cases, but they ask you to bypass a limiting instruction. The Court has said that we are in realistic danger of prosecution, but they're asking you to find the statute overbroad, even though we don't have any history of either prosecution or of chilling. And the Court said in Hicks that rarely if ever will a statute be overbroad when it aims at conduct and not primarily at speech or at inherently expressive conduct.

But this is a statute that we know from 70 years aims primarily at conduct, even if you thought it also may sweep in some speech. It would really be extraordinary, I think, to say that the statute can't be used to prosecute schemes like Mr. Hansen's and all of the other schemes that it has been used to prosecute over the last 70 years. We'd ask the Court to reverse.

John G. Roberts, Jr.: Thank you, counsel.

The case is submitted.