Page:United States v. Hansen.pdf/7

Rh him.

While Hansen’s appeal was pending, the Ninth Circuit held in Sineneng-Smith that clause (iv) is unconstitutionally overbroad. Id., at 467–468. That holding was short-lived: We vacated the judgment, explaining that the panel’s choice to inject the overbreadth issue into the appeal and appoint amici to argue it “departed so drastically from the principle of party presentation as to constitute an abuse of discretion.” 590 U. S. ___, ___ (2020) (slip op., at 3). On remand, limited to the arguments that Sineneng-Smith had actually made, the Ninth Circuit affirmed her convictions. 982 F. 3d 766, 770 (2020). But Hansen’s appeal was waiting in the wings, giving the Ninth Circuit a second chance to address the overbreadth question. It reprised its original holding in Sineneng-Smith.

As in Sineneng-Smith, the Ninth Circuit focused on whether clause (iv) is a narrow prohibition covering solicitation and facilitation of illegal conduct, or a sweeping ban that would pull in “statements or conduct that are likely repeated countless times across the country every day.” 25 F. 4th 1103, 1110 (2022). It adopted the latter interpretation, asserting that clause (iv) criminalizes speech such as “encouraging an undocumented immigrant to take shelter during a natural disaster, advising an undocumented immigrant about available social services, telling a tourist that she is unlikely to face serious consequences if she overstays her tourist visa, or providing certain legal advice to undocumented immigrants.” Ibid. Concluding that clause (iv) covers an “ ‘alarming’ ” amount of protected speech relative to its narrow legitimate sweep, the Ninth Circuit held the provision facially overbroad. Ibid.

The Ninth Circuit denied the Government’s petition for rehearing en banc over the dissent of nine judges. Judge Bumatay, who wrote the principal dissent, attributed the panel’s overbreadth concern to a misreading of the statute.