Page:United States v. Hansen.pdf/53

Rh to preserve documents and communications related to their work in advance of a potential congressional investigation into whether such organizations are “ ‘harbor[ing], transport[ing], and encourag[ing]’ ” noncitizens to settle unlawfully in this country. Brief for Religious Organizations as Amici Curiae 34 (emphasis added). Again, this kind of letter invoking the language of the encouragement provision can plainly chill speech, even though it is not a prosecution (and, for that matter, even if a formal investigation never materializes).

The majority nevertheless derides the fears of Hansen and his amici as an overimaginative “parad[e]” of “horribles.” But what may seem “fanciful” to this Court at great remove,, might well prove to be a significant obstacle for those on the ground who operate daily in the shadow of the law. The “gravity” of the encouragement provision’s chilling effect is “underscored by the filings of … amici curiae in support of” Hansen—including briefs from lawyers, immigration advocacy organizations, religious and other charitable organizations, journalists, local governments, and nonprofit policy institutions from across the ideological spectrum. Americans for Prosperity Foundation v. Bonta, 594 U. S. ___, ___ (2021) (slip op., at 17).

The substantial concerns that amici from such diverse walks of life raise illustrate that the “deterrent effect feared by” Hansen and his amici “is real and pervasive.” Id., at ___ (slip op., at 18). Moreover, at the end of the day, those fears reflect a determination to view enacted statutes as serious business, and, essentially, to take Congress at its word. This Court should have done the same.

As written, the encouragement provision is overbroad. Therefore, it should have been deemed facially unconstitutional and invalid under the First Amendment, as the Ninth Circuit held.