Page:United States v. Hansen.pdf/34

2 books in order to avoid chilling constitutionally protected speech. See Dombrowski v. Pfister, 380 U. S. 479, 486–487 (1965). Because the majority’s interpretation of §1324(a)(1)(A)(iv) diverges from the text and history of the provision, and simultaneously subverts the speech-protective goals of the constitutional doctrine plainly implicated here, I respectfully dissent.

Section 1324(a)(1)(A)(iv) makes it a federal crime to “encourag[e] or induc[e]” a noncitizen “to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.” For ease of reference, I will refer to this as the “encouragement provision.”

Respondent Hansen argues that the encouragement provision is unconstitutional under our First Amendment overbreadth doctrine, and the Ninth Circuit below agreed. Neither the Government nor the majority disputes that conclusion if the statute is read according to its plain terms. And, indeed, when read literally, the encouragement provision prohibits so much protected speech that it appears to qualify as overbroad under our precedents.

A statute is overbroad—and thus facially invalid—if “a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” United States v. Stevens, 559 U. S. 460, 473 (2010) (internal quotation marks omitted). The overbreadth inquiry thus generally requires comparing the First Amendment-protected expression that a statute impermissibly punishes, on the one hand (let’s call that “category one”), with the unprotected speech and conduct that the statute validly prohibits, on the other (“category two”).

Starting with category one: With respect to the sweep of