CONSTITUTIONAL LAW-FIRST AMENDMENT-SPEECH-IMMIGRATION VIOLATION-OVERBREADTH

United States v. Hansen, 2023 U.S. LEXIS 2638 (S. Ct. June 23, 2023) (Barrett, J.) 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, 128 S. Ct. 1830, 170 L. Ed. 2d 650 (2008). We reverse. The United States charged Hansen with (among other crimes) violations of §1324(a)(1)(A)(iv). That clause forbids “encourag[ing] or induc[ing] an alien 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.” In addition to convicting him under clause (iv), the jury found that Hansen had acted “for the purpose of private financial gain,” triggering a higher maximum penalty. App. 116; see §1324(a)(1)(B)(i). After the verdict came in, Hansen saw a potential way out. Another case involving §1324(a)(1)(A)(iv), United States v. Sineneng-Smith, was pending before the Ninth Circuit, which had sua sponte raised the question whether the clause was an unconstitutionally overbroad restriction of speech. 910 F. 3d 461, 469 (2018). Taking his cue from Sineneng-Smith, Hansen moved to dismiss the clause (iv) charges on First Amendment overbreadth grounds. The District Court rejected Hansen’s argument and sentenced 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. ___, ___, 140 S. Ct. 1575, 206 L. Ed. 2d 866 (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.