By 7-2 vote, SCOTUS preserved prohibition on inducing illegal immigration against First Amendment challenge

The Supreme Court this morning handed down another criminal law opinion today with US v. Hanson, No. 22–179 (S. Ct. June 23, 2023) (available here).  The opinion for the Court was authored by Justice Barrett and begins this way:

A federal law prohibits “encourag[ing] or induc[ing]” illegal immigration. 8 U.S.C. § 1324(a)(1)(A)(iv).  After concluding that this statute criminalizes immigration advocacy and other protected speech, the Ninth Circuit held it unconstitutionally overbroad under the First Amendment.  That was error.  Properly interpreted, this provision forbids only the intentional solicitation or facilitation of certain unlawful acts.  It does not “prohibi[t] a substantial amount of protected speech” — let alone enough to justify throwing out the law’s “plainly legitimate sweep.” United States v. Williams, 553 U.S. 285, 292 (2008). We reverse.

Justice Thomas authored a concurrence in order “to emphasize how far afield the facial overbreadth doctrine has carried the Judiciary from its constitutional role.”

Justice Jackson, joined by Justice Sotomayor, authored a dissent that gets started this way:

At bottom, this case is about how to interpret a statute that prohibits “encourag[ing] or induc[ing]” a noncitizen “to come to, enter, or reside in the United States” unlawfully.  8 U.S.C. § 1324(a)(1)(A)(iv).  The Court reads that broad language as a narrow prohibition on the intentional solicitation or facilitation of a specific act of unlawful immigration — and it thereby avoids having to invalidate this statute under our well-established First Amendment overbreadth doctrine.  But the majority departs from ordinary principles of statutory interpretation to reach that result. Specifically, it rewrites the provision’s text to include elements that Congress once adopted but later removed as part of its incremental expansion of this particular criminal law over the last century.

It is neither our job nor our prerogative to retrofit federal statutes in a manner patently inconsistent with Congress’s choices.  Moreover, by acquiescing to the Government’s newly minted pitch to narrow this statute in order to save it, the majority undermines the goal of the overbreadth doctrine, which aims to keep overly broad statutes off the 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.