Reply Brief — United States, Petitioner v. Helaman Hansen

No. 22-179

In the Supreme Court of the United States

UNITED STATES OF AMERICA, PETITIONER

v.

HELAMAN HANSEN

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

REPLY BRIEF FOR THE UNITED STATES

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

TABLE OF CONTENTS

Page

A.

B.

C.

D.

E.

Section 1324(a)(1)(A)(iv) is a prohibition on

facilitating or soliciting unlawful conduct ..................... 2

Section 1324(a)(1)(A)(iv) is not unconstitutionally

reoverbroad .................................................................... 10

Section 1324(a)(1)(A)(iv)’s coverage of civil

immigration violations does not establish

overbreadth .................................................................... 16

Respondent’s overbreadth challenge is especially

misplaced because he was convicted of the

aggravated offense in Section 1324(a)(1)(B)(i) ........... 20

Respondent’s alternative arguments lack merit

and, in any event, are best addressed on remand ...... 22

TABLE OF AUTHORITIES

Cases:

Americans for Prosperity Found. v. Bonta,

141 S. Ct. 2373 (2021) ......................................................... 12

Boos v. Barry, 485 U.S. 312 (1988) ...................................... 10

Brandenburg v. Ohio, 395 U.S. 444 (1969).......................... 13

Broadrick v. Oklahoma, 413 U.S. 601 (1973) ................ 10, 12

Bryan v. United States, 524 U.S. 184 (1998) ........................ 6

Building Serv. Emps. Int’l Union v. Gazzam,

339 U.S. 532 (1950)........................................................ 17, 18

Clark v. Martinez, 543 U.S. 371 (2005) ............................ 10

Cutter v. Wilkinson, 544 U.S. 709 (2005) ............................ 22

Elonis v. United States, 575 U.S. 723 (2015) ...................... 23

Farmer v. Brennan, 511 U.S. 825 (1994) .............................. 7

Giboney v. Empire Storage & Ice Co.,

336 U.S. 490 (1949)........................................................ 17, 18

Halberstam v. Welch, 705 F.2d 472 (D.C. Cir. 1983) ......... 19

(I)

II

Cases—Continued:

Page

Holder v. Humanitarian Law Project,

561 U.S. 1 (2010) ................................................................... 7

Los Angeles Police Dep’t v. United Reporting Publ’g

Corp., 528 U.S. 32 (1999) .................................................... 21

Members of the City Council v. Taxpayers

for Vincent, 466 U.S. 789 (1984) .................................. 11, 12

Metro-Goldwyn-Mayer Studios Inc.

v. Grokster, Ltd., 545 U.S. 9130 (2005) ............................. 19

Neder v. United States, 527 U.S. 1 (1999) ........................... 23

Pittsburgh Press Co. v. Pittsburgh Comm’n on

Human Relations, 413 U.S. 376 (1973) ............................ 18

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) ................... 23

Rosemond v. United States, 572 U.S. 65 (2014) ................... 6

Ruan v. United States, 142 S. Ct. 2370 (2022) ...................... 6

Rumsfeld v. FAIR, Inc., 547 U.S. 47 (2006) ....................... 18

Susan B. Anthony List v. Driehaus,

573 U.S. 149 (2014).............................................................. 22

Taggart v. Lorenzen, 139 S. Ct. 1795 (2019) ......................... 5

United States v. Costello,

666 F.3d 1040 (7th Cir. 2012) ............................................. 13

United States v. Garcia-Paulin,

627 F.3d 127 (5th Cir. 2010) ............................................... 13

United States v. Henderson,

857 F. Supp. 2d 191 (D. Mass. 2012) ................................. 11

United States v. Hoy, 330 U.S. 724 (1947) ............................ 4

United States v. Stevens, 559 U.S. 460 (2010) ........ 14, 17, 20

United States v. Stitt, 139 S. Ct. 399 (2018) ........................ 22

United States v. Williams,

553 U.S. 285 (2008) .................... 3, 11-14, 16, 18, 19, 21, 23

Voisine v. United States, 579 U.S. 686 (2016) ...................... 7

III

Constitution and statutes:

Page

U.S. Const.:

Art. III .............................................................................. 22

Amend. I ............................................... 1, 2, 9, 11-14, 16-22

Act of Feb. 5, 1917, ch. 29, 39 Stat. 874:

§ 5, 39 Stat. 879 .................................................................. 4

§ 6, 39 Stat. 879 .................................................................. 4

Immigration and Nationality Act,

ch. 477, 66 Stat. 163 (8 U.S.C. 1101 et seq.):

§ 274(a)(4), 66 Stat. 229 ..................................................... 4

8 U.S.C. 1253(a) ............................................................... 20

8 U.S.C. 1324(a) ................................................................. 8

8 U.S.C. 1324(a)(1)(A) ................................................... 8, 9

8 U.S.C. 1324(a)(1)(A)(i) ............................................... 13

8 U.S.C. 1324(a)(1)(A)(ii) ................................................ 8

8 U.S.C. 1324(a)(1)(A)(iii) ..........................................8, 13

8 U.S.C. 1324(a)(1)(A)(iv).......................... 1, 2, 4-17, 20-23

8 U.S.C. 1324(a)(1)(A)(v)(II) ............................................ 9

8 U.S.C. 1324(a)(1)(B)(i) ........................................... 21, 22

8 U.S.C. 1324(a)(4) (1982) ................................................. 7

18 U.S.C. 2(a) ........................................................................... 6

18 U.S.C. 373(a) ....................................................................... 9

18 U.S.C. 1325(a) ................................................................... 20

18 U.S.C. 1341 ........................................................................ 13

18 U.S.C. 1343 ........................................................................ 13

35 U.S.C. 271(b) ..................................................................... 19

Miscellaneous:

Black’s Law Dictionary:

(5th ed. 1979) ...................................................................... 3

(11th ed. 2019) .................................................................... 3

IV

Miscellaneous—Continued:

Page

1 Thomas M. Cooley & D. Avery Haggard,

A Treatise on the Law of Torts (4th ed. 1932) ................. 18

2 Wayne R. LaFave, Substantive Criminal Law

(3d ed. 2018)..................................................................... 9, 14

Model Rules of Prof ’l Conduct

R. 1.2(d) cmt. 9 (2018) ......................................................... 15

Restatement (Second) of Torts (1979)................................. 18

Restatement (Third) of the Law

Governing Lawyers (2000)................................................. 15

Antonin Scalia & Bryan A. Garner,

Reading Law (2012) ...................................................... 3, 5

In the Supreme Court of the United States

No. 22-179

UNITED STATES OF AMERICA, PETITIONER

v.

HELAMAN HANSEN

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

REPLY BRIEF FOR THE UNITED STATES

The Ninth Circuit invoked the First Amendment overbreadth doctrine to invalidate Congress’s longstanding

prohibition on inducing or encouraging illegal immigration. Respondent’s defense of that extraordinary result

rests largely on his assertion that the statutory terms “encourages” and “induces” must be construed to encompass

large swaths of protected speech, such as policy advocacy,

legal advice, and expressions of personal support. Resp.

Br. 1, 16-17. But respondent acknowledges that in criminal law, those words can—and routinely do—refer more

narrowly to facilitation and solicitation of illegal activity.

That should resolve this case: Statutes must be construed to avoid constitutional problems, not to create

them, and giving “encourages” and “induces” their traditional criminal-law meaning would eliminate the overbreadth problem the Ninth Circuit perceived.

The Ninth Circuit did not suggest that 8 U.S.C.

1324(a)(1)(A)(iv) would violate the First Amendment if

(1)

2

it prohibited only soliciting or facilitating illegal activity. But respondent contends that the statute would

still be overbroad because it prohibits soliciting and facilitating certain civil immigration violations, not just

criminal offenses. That is wrong. This Court has long

recognized that the First Amendment does not protect

speech that solicits or facilitates civil violations. And

there is no basis in precedent or principle for the

suggestion that Congress must criminally punish individual noncitizens who remain in the country unlawfully

in order to criminally punish those who assist them—

especially those who, like respondent, do so for profit.

More fundamentally, none of respondent’s arguments supply what this Court has required to justify the

overbreadth doctrine’s departure from usual principles

of constitutional adjudication: A showing of a realistic

danger that the challenged law will significantly compromise the First Amendment rights of others. Section

1324(a)(1)(A)(iv) has been on the books for decades and

traces its roots to 1885. Yet neither respondent nor his

amici have identified even a single prosecution based on

protected speech. Nor have they offered any evidence

that Section 1324(a)(1)(A)(iv) was thought to reach such

speech before 2017, when a prior Ninth Circuit panel

invited amici to urge a sweeping construction of the

statute in order to invalidate it. This Court should reject respondent’s effort to use hypothetical constitutional problems to preclude the application of Section

1324(a)(1)(A)(iv) to his own conduct, which was not even

arguably protected by the First Amendment.

A. Section 1324(a)(1)(A)(iv) Is A Prohibition On Facilitating

Or Soliciting Unlawful Conduct

Section 1324(a)(1)(A)(iv) uses familiar criminal-law

terms to prohibit facilitating or soliciting immigration

3

violations. Gov’t Br. 20-28. Respondent fundamentally

misreads the statute in insisting that it is instead a

sweeping ban on speech.

1. Respondent does not dispute (e.g., Br. 36) that the

terms “encourage” and “induce” are commonplace in

statutes defining facilitation and solicitation crimes.

Gov’t Br. 21-24; see Montana et al. Amici Br. 8 & App.

A (Montana Br.) (providing examples from “[a]ll 50

States”). The current edition of Black’s, for example,

defines “encourage” as used in “criminal law” to mean

“to instigate; to incite to action; to embolden; to help,”

followed by a cross-reference to “aid and abet.” Black’s

Law Dictionary 667 (11th ed. 2019) (capitalization and

emphasis omitted). The same cross-reference also appeared in the 1979 edition, in language following the

portion respondent quotes (Br. 15). See Black’s Law

Dictionary 473 (5th ed. 1979). If respondent were correct that “encourage” or “induce” must be construed as

broadly as the Ninth Circuit construed them here, all of

the state and federal laws using those terms would be

subject to facial constitutional attack.

Seeking to avoid that implausible result, respondent

contends that most facilitation and solicitation statutes

use the terms “encourage” and “induce” along with

“other terms that support a narrowing construction”

under the noscitur a sociis canon. Resp. Br. 36 (emphasis omitted). But that canon is merely a tool for choosing

among a word’s “permissible meaning[s].” Antonin

Scalia & Bryan A. Garner, Reading Law 195 (2012)

(Scalia & Garner); see United States v. Williams, 553

U.S. 285, 294 (2008). Respondent’s embrace of the noscitur canon to construe “encourage” and “induce” to refer

to facilitation and solicitation in other statutes thus

4

confirms that those words need not bear the sweeping

interpretation he would give them here.

Furthermore, as respondent acknowledges (Br. 2-3),

an earlier statute did include additional terms in a longer

list. See Act of Feb. 5, 1917 (1917 Act), ch. 29, § 5, 39

Stat. 879 (prohibition against “induc[ing], assist[ing],

encourag[ing], or solicit[ing]” noncitizens for contract

labor). In 1952, Congress drew on that earlier statute

to enact Section 1324(a)(1)(A)(iv)’s direct predecessor,

a prohibition on “encourag[ing] or induc[ing]” a noncitizen to enter the United States unlawfully. Immigration

and Nationality Act, ch. 477, § 274(a)(4), 66 Stat. 229.

Respondent would treat that history as evidence that

Congress repudiated the narrow interpretation of “encourage” and “induce” that the noscitur canon would

have supported for the pre-1952 language. Resp. Br.

24-25. But respondent fails to rebut two historical

points from the government’s opening brief (at 26).

First, when Congress pared back the list of overlapping

verbs, it was merely repeating this Court’s more succinct description of the pre-1952 prohibition. See

United States v. Hoy, 330 U.S. 724, 727 (1947). Second,

the 1952 amendments deleted a provision that had specifically focused on speech by imposing a ban on “induc[ing], assist[ing], encourag[ing], or solicit[ing]” a

noncitizen to come to the United States “by promise of

employment through advertisements.” 1917 Act § 6, 39

Stat. 879.

By adopting a more succinct formulation and omitting the separate provision focused on speech, Congress

made clear that it was carrying forward into what is now

Section 1324(a)(1)(A)(iv) the traditional criminal-law

meanings of “encourage” and “induce,” not enacting a

novel ban on abstract advocacy. “When a statutory

5

term is obviously transplanted from another legal

source, it brings the old soil with it.” Taggart v. Lorenzen, 139 S. Ct. 1795, 1801 (2019) (citation and internal quotation marks omitted). “Here, we have buckets

of soil to understand Congress’s meaning.” Pet. App.

64a (Bumatay, J., dissenting from the denial of rehearing en banc). And respondent is wrong to suggest (Br.

25-26) that later amendments warrant disregarding

those established meanings. Congress has in some respects expanded the conduct that the prohibition covers

(Gov’t Br. 5-7), but it has never transformed it into a ban

on everyday speech.

The inference that Section 1324(a)(1)(A)(iv) incorporates the traditional criminal-law meanings of “encourage” and “induce” is bolstered by the pairing of those

cognate terms. See Scalia & Garner 197-198 (approvingly citing decision that applied noscitur a sociis to a

pair of disjunctive terms). Respondent’s interpretation,

by contrast, cannot make sense of the inclusion of both

words. A prohibition against “inspir[ing]” a noncitizen

with the “courage, spirit, or hope” to enter or remain in

the United States unlawfully, Resp. Br. 15 (citation

omitted), would leave no real work for “induce.”

2. Section 1324(a)(1)(A)(iv)’s additional text and

context further confirm that it is aimed at solicitation

and facilitation, not abstract advocacy.

a. Section 1324(a)(1)(A)(iv)’s reference to “an alien”

requires that a defendant’s activity be directed to a particular noncitizen or noncitizens. Pet. App. 7a; see Gov’t

Br. 26-27. Thus, although the unlawful inducement need

not occur “one-on-one” (Resp. Br. 17), respondent errs

in asserting (ibid.) that the statute could encompass an

“op-ed or public speech.”

6

In addition, Section 1324(a)(1)(A)(iv) is best read to

require proof that the defendant acted with the mens

rea traditionally required for accomplice liability: He

must “ ‘participate in [the violation] as in something that

he wishes to bring about’ and ‘seek by his action to make

it succeed,’ ” a standard that is “satisfied when a person

actively participates in [the] criminal venture with full

knowledge of the circumstances.” Rosemond v. United

States, 572 U.S. 65, 76-77 (2014) (citation omitted); see

Gov’t Br. 27-28. That requirement follows from the

terms Congress chose. One would not naturally say

that a person “encourages” or “induces” conduct he

does not intend to occur. And where, as here, those

terms are used in their criminal-law sense to connote

solicitation or facilitation, they carry the associated

mens rea requirement. The federal aiding-and-abetting

statute, for example, does not include an express mens

rea element; instead, the traditional requirement is inherent in the statute’s list of verbs, including “induce[].”

18 U.S.C. 2(a); see Rosemond, 572 U.S. at 76-77. The

parallel language in Section 1324(a)(1)(A)(iv) should be

interpreted the same way, and the statute thus does not

forbid conduct that merely has the inadvertent effect of

encouraging or inducing a noncitizen to remain in the

United States unlawfully. Contra Resp. Br. 10, 16, 19.1

Finally, the statute also requires proof that the defendant acted “knowing or in reckless disregard” that

the noncitizen’s conduct would be “in violation of law.”

8 U.S.C. 1324(a)(1)(A)(iv). That additional requirement

distinguishes Section 1324(a)(1)(A)(iv) from typical criminal statutes, which require only “factual knowledge as

That interpretation of Section 1324(a)(1)(A)(iv) is also consistent

with the “presumption of scienter” in criminal statutes. Ruan v.

United States, 142 S. Ct. 2370, 2377 (2022); see Gov’t Br. 27-28.

1

7

distinguished from knowledge of the law.” Bryan v.

United States, 524 U.S. 184, 192 (1998) (citation omitted).

b. Respondent objects (Br. 19-20) that a noncitizen’s

immigration status can be difficult to determine. But

the burden is on the government to prove knowledge or

reckless disregard of illegality. And in the criminal context, recklessness requires a showing that the defendant was subjectively aware of and “ ‘consciously disregard[ed]’ a substantial risk.” Voisine v. United States,

579 U.S. 686, 691 (2016) (citation omitted); see Farmer

v. Brennan, 511 U.S. 825, 836-837 (1994).

Respondent also asserts (Br. 29-30) that Section

1324(a)(1)(A)(iv)’s requirement that the defendant

acted with knowledge or reckless disregard of the illegal nature of the noncitizen’s conduct precludes interpreting the statute to require that the defendant intentionally facilitated or solicited that conduct. But as

shown above, that requirement is inherent in the terms

“encourage” and “induce” and the complicity principles

they incorporate. Respondent thus errs in invoking (Br.

30) Holder v. Humanitarian Law Project, 561 U.S. 1

(2010), which rejected a party’s attempt to replace an

express “knowledge” requirement with a “specific intent” requirement directed at the same element. Id. at

16-17.

Respondent emphasizes (Br. 30) that the pre-1986

statute prohibited “willfully or knowingly” encouraging

or inducing a noncitizen to enter the United States unlawfully, and Congress omitted those modifiers in its

1986 amendments. See 8 U.S.C. 1324(a)(4) (1982). As

explained above, however, the words “encourages or induces” themselves connote intentional conduct when

used in defining facilitation and solicitation offenses.

Congress may well have viewed the omitted language as

8

unnecessary. The adjacent provisions similarly lack an

express mental-state requirement for the actus reus

and yet have been construed to have one. Gov’t Br. 28.

c. The broader statutory context also cuts against

respondent’s maximally speech-restrictive reading of

Section 1324(a)(1)(A)(iv). As respondent acknowledges

(Br. 4), the “[o]ther subsections of Section 1324(a)(1)(A)

focus on conduct.” In fact, Section 1324(a)(1)(A) is a single sentence prohibiting multiple criminal acts. Each of

the other clauses targets conduct in which the defendant directly or indirectly participates in specific activity

involving noncitizens entering or remaining in the

United States illegally, such as “transport[ing]” or “conceal[ing]” them. 8 U.S.C. 1324(a)(1)(A)(ii) and (iii). Section 1324(a)(1)(A)(iv) is most naturally understood as

having a similar focus.

Respondent therefore gets things backwards in asserting (Br. 26-27) that the adjacent provisions’ focus on

conduct suggests that Congress radically changed

course in Subparagraph (iv) to focus there (and only

there) on speech. And respondent does not defend the

Ninth Circuit’s mistaken view that construing Section

1324(a)(1)(A)(iv) to focus on conduct would render it superfluous. Pet. App. 8a-9a; cf. Resp. Br. 27. Section

1324(a)(1)(A)(iv) plays an important role in federal efforts to combat illegal immigration and is the only provision in Section 1324(a) that would cover respondent’s

own scheme to profit by deceiving noncitizens into remaining in the country unlawfully. Gov’t Br. 38-39.

Respondent contends that, if Congress had sought to

enact a “ban [on] solicitation or aiding and abetting” in

Section 1324(a)(1)(A)(iv), it would have used the terms

“ ‘solicit,’ ” “ ‘aid,’ ” or “ ‘abet,’ ” as it has elsewhere. Resp.

Br. 27-28 (citations omitted). But respondent’s own

9

principal example of such usage (ibid.) only confirms that

the terms Congress instead employed here are close cousins, and that these related words have long been used in

various combinations to define facilitation and solicitation.

See 18 U.S.C. 373(a) (“solicits, commands, induces, or

otherwise endeavors to persuade”) (emphasis added);

see also 2 Wayne R. LaFave, Substantive Criminal

Law § 13.2(a), at 457 (3d ed. 2018) (LaFave).

To the extent respondent continues to rely (Br. 28)

on the separate aiding-and-abetting provision in Section 1324(a)(1)(A)(v)(II), his reliance is misplaced. That

provision forbids “aid[ing] or abet[ting]” violations of

Section 1324(a)(1)(A) itself, rather than the underlying

immigration violations. 8 U.S.C. 1324(a)(1)(A)(v)(II).

When Congress enacted the aiding-and-abetting provision in 1996, it had no reason to revise the decades-old

language of Section 1324(a)(1)(A)(iv), which—unlike the

new provision—covers solicitation as well.

Finally, respondent objects (Br. 31) that Section

1324(a)(1)(A)(iv) cannot be construed as a prohibition

on facilitation because “aiding-and-abetting requires

that the principal actually commit a criminal act,”

whereas Section 1324(a)(1)(A)(iv) does not require a

completed immigration violation. But that aspect of the

statute is consistent with the traditional understanding

of solicitation, which does not require a completed offense. 2 LaFave § 11.1, at 264; see Pet. App. 51a, 53a

(Bumatay, J., dissenting from the denial of rehearing en

banc).

3. To the extent Section 1324(a)(1)(A)(iv) is amenable to multiple interpretations, respondent fails to justify the Ninth Circuit’s adoption of a constitutionally deficient one. Courts construe statutes to avoid, not invite, constitutional problems. Gov’t Br. 35. Particularly

10

in the context of a First Amendment overbreadth challenge like this one, where the challenged provision has

many legitimate applications, federal courts have not

only “the power to adopt narrowing constructions,” but

“the duty to avoid constitutional difficulties by doing so

if such a construction is fairly possible.” Boos v. Barry,

485 U.S. 312, 330-331 (1988); see Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973) (“Facial overbreadth has

not been invoked when a limiting construction has been

or could be placed on the challenged statute.”).

Respondent observes that constitutional avoidance

“comes into play only when, after the application of ordinary textual analysis, the statute is found to be susceptible of more than one construction.” Resp. Br. 24 (citation

omitted). But respondent’s own discussion of the noscitur canon (Br. 36) makes clear that the terms “encourage” and “induce” are susceptible to being read to refer

narrowly to facilitation and solicitation. See pp. 3-4, supra. It is thus at least plausible to construe those terms

to carry that traditional criminal-law meaning in Section

1324(a)(1)(A)(iv). And where, as here, there is a “plausible statutory construction[]” that would avoid “a multitude of constitutional problems,” courts have a duty to

adopt it even if they might otherwise interpret the statute differently. Clark v. Martinez, 543 U.S. 371, 380-381

(2005).

B. Section 1324(a)(1)(A)(iv) Is Not Unconstitutionally Overbroad

When properly construed as a prohibition on facilitation and solicitation, Section 1324(a)(1)(A)(iv) is not

overbroad. The statute is plainly valid as applied to the

conduct it has traditionally been used to prosecute. And

respondent has failed to supply the essential prerequisite for an overbreadth challenge: “[A] realistic danger

11

that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court.” Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789, 801 (1984). Instead,

the submissions of respondent and his supporting

amici—who have long engaged in the very activities

they claim the statute chills—demonstrate just how unrealistic any danger is here.

1. The government’s opening brief illustrated (at 3637) the breadth of Section 1324(a)(1)(A)(iv)’s “plainly legitimate sweep,” Williams, 553 U.S. at 292. In particular, it cataloged many prosecutions for conduct that,

like respondent’s own, enjoys no First Amendment protection. In contrast, respondent—who bears the burden to show overbreadth that is “substantial, not only

in an absolute sense, but also relative” to the statute’s

legitimate applications, ibid.—cannot identify even a

single Section 1324(a)(1)(A)(iv) prosecution that has violated a defendant’s First Amendment rights.

Respondent’s amici (though not respondent himself)

invoke the same prior case that the Ninth Circuit identified as “troubling.” Pet. App. 13a; see, e.g., Religious

Orgs. Amici Br. 32-33. But that case, United States v.

Henderson, 857 F. Supp. 2d 191 (D. Mass. 2012), was

not a prosecution based on protected speech, see Gov’t

Br. 46. In Henderson, a federal official induced a

noncitizen to remain in the United States unlawfully so

that the official could continue to employ the noncitizen

as a housekeeper. 857 F. Supp. 2d at 194-197. In a colloquy at a post-trial hearing, a prosecutor allowed for the

hypothetical possibility that an attorney’s advice could

violate Section 1324(a)(1)(A)(iv). Id. at 203-204. The defendant in Henderson was not an attorney, and the case

did not involve legal advice to a client. As discussed

12

below, Section 1324(a)(1)(A)(iv)’s potential application

to attorneys is both limited and consistent with the

criminal law’s potential application to lawyers more

generally. See pp. 14-15, infra. In any event, a decadeold colloquy before a single district court hardly shows

a realistic danger of chilling protected speech.

The Ninth Circuit also erred in suggesting that, for

overbreadth purposes, Section 1324(a)(1)(A)(iv) should be

evaluated by ignoring any conduct that might also be

prosecuted under other statutes and assessing the provision’s “independent work.” Pet. App. 10a. This Court’s

overbreadth precedents require considering a challenged

statute’s “legitimate sweep,” Williams, 553 U.S. at 292,

not its unique applications. Gov’t Br. 40.

Respondent likewise errs in contending that the Court

should consider whether the government has “less drastic

means for achieving the same basic purposes.” Resp. Br.

21 (citation omitted). The Court often incorporates such

means-end scrutiny into the substantive First Amendment standards that define permissible and impermissible limits on speech. See, e.g., Americans for Prosperity

Found. v. Bonta, 141 S. Ct. 2373, 2385-2386 (2021) (applying “exacting scrutiny”). But overbreadth doctrine takes

those substantive standards as given and asks a different

question: Whether the statute’s impermissible applications are “substantial, not only in an absolute sense, but

also relative to the statute’s plainly legitimate sweep.”

Williams, 553 U.S. at 292. If the challenger fails to make

that showing, the statute is not overbroad, even if the

challenger can hypothesize narrower laws that might

serve the same purpose. See, e.g., Taxpayers for Vincent, 466 U.S. at 800; Broadrick, 413 U.S. at 618.

Respondent’s account (Br. 22-23 & n.3) of the available

alternatives is also unsound. That respondent’s own

13

conduct happened to violate the prohibitions on mail

and wire fraud, see 18 U.S.C. 1341, 1343, does not undermine Congress’s reasons for banning soliciting and

facilitating unlawful immigration activity. The different

prohibitions vindicate different interests—one in preventing fraud, the other in enforcing the immigration

laws. Respondent also disregards the significant gaps

that Section 1324(a)(1)(A)(iv) fills. For example, acts

that facilitate a noncitizen’s entry but do not involve

physically accompanying the noncitizen to the border

(or arranging to have the noncitizen accompanied) may

not qualify as “bring[ing]” a noncitizen to the United

States. 18 U.S.C. 1324(a)(1)(A)(i); see United States v.

Garcia-Paulin, 627 F.3d 127, 133-134 (5th Cir. 2010);

see also, e.g., United States v. Costello, 666 F.3d 1040,

1050 (7th Cir. 2012) (limiting Section 1324(a)(1)(A)(iii)’s

prohibition of “harboring”).

2. To the extent Section 1324(a)(1)(A)(iv) reaches

speech, it applies only to speech that solicits or facilitates illegal activity, which this Court has recognized to

be one of the historically grounded categories of speech

“undeserving of First Amendment protection.” Williams, 553 U.S. at 298; see Gov’t Br. 40-44. Respondent’s contrary arguments lack merit, and certainly do

not establish substantial overbreadth.

a. At the outset, respondent errs in suggesting (Br.

18-19) that Section 1324(a)(1)(A)(iv) violates the First

Amendment unless it satisfies the test set forth in

Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam).

That decision defines the traditional First Amendment

exception for incitement, or “advocacy” that is “directed

to inciting or producing imminent lawless action and is

likely to incite or produce such action.” Id. at 447. This

case involves a distinct and equally well-established

14

exception for speech “intended to induce or commence

illegal activities.” Williams, 553 U.S. at 298; see, e.g.,

United States v. Stevens, 559 U.S. 460, 468 (2010) (separately listing “incitement” and “speech integral to

criminal conduct”).

b. Respondent is also wrong to insist that Section

1324(a)(1)(A)(iv) prohibits merely saying to a noncitizen, “I encourage you to reside in the United States.”

Resp. Br. 14 (quoting Pet. App. 11a). Even personalized

statements encouraging a noncitizen’s unlawful immigration activity do not necessarily violate Section

1324(a)(1)(A)(iv). The government would have to satisfy

the other statutory requirements, including those

drawn from traditional aiding-and-abetting principles

(which require more than mere abstract or de minimis

exhortations). Gov’t Br. 33. Courts have long declined

to read facilitation and solicitation statutes with wooden

literalism, in part to avoid First Amendment concerns.

See, e.g., 2 LaFave § 11.1(c), at 275 (“[T]he crime of solicitation should not be extended to persons who merely

express general approval of criminal acts.”). This Court

took a similar approach in Williams, which held that a

prohibition on “promot[ing]” child pornography should

not be interpreted to “refer to abstract advocacy,” and

therefore did not reach merely making the statement,

“ ‘I encourage you to obtain child pornography.’ ” 553

U.S. at 300.

c. Finally, Section 1324(a)(1)(A)(iv), like other facilitation and solicitation laws, does not apply to good-faith

legal advice. Gov’t Br. 34. Respondent’s contrary contentions (e.g., Br. 1, 17) disregard the “critical distinction,” reflected in the rules of professional ethics, “between presenting an analysis of legal aspects of questionable conduct” and “knowingly counseling or

15

assisting a client” to break the law. Model Rules of

Prof ’l Conduct R. 1.2(d) cmt. 9 (2018). The issue of potential application of the criminal law to a lawyer is not

unique to Section 1324(a)(1)(A)(iv) and is no reason to

invalidate that provision. Rather, courts should follow

the usual course, under which “[t]he traditional and appropriate activities of a lawyer in representing a client

in accordance with the requirements of the applicable

lawyer code are relevant factors for the tribunal in assessing the propriety of the lawyer’s conduct under the

criminal law.” Restatement (Third) of the Law Governing Lawyers § 8 (2000).

Many of respondent’s hypotheticals involving attorneys would not violate Section 1324(a)(1)(A)(iv) for an

additional reason: As the government’s opening brief

explained (Br. 34), a noncitizen’s continued residence in

the United States is not “in violation of law” within the

meaning of the statute if the noncitizen is in removal

proceedings or pursuing other bona fide efforts to obtain relief from the government. Cf. Resp. Br. 17 n.1.

3. Not only do respondent and his supporting amici

fail to identify any actual Section 1324(a)(1)(A)(iv) prosecutions of protected speech, but their own examples of

ongoing advocacy and outreach on immigration issues

confirm that a speech-chilling interpretation is a strawman of the Ninth Circuit’s invention. Notwithstanding

that Section 1324(a)(1)(A)(iv) has been on the books in

substantially its current form for more than 30 years,

the activities that amici claim that the provision chills

are ones in which they openly engage. See, e.g., Religious Orgs. Amici Br. 5-14 (public advocacy, legal clinics, distribution of “know your rights” materials); AAJC

Amici Br. 9-29 (similar). Amici’s evident belief that they

have been and remain free to do so presumably reflects

16

the absence of any substantial concern that Section

1324(a)(1)(A)(iv) actually prohibits those activities. And

amici identify no demonstrated instance in which the

government has sought to prosecute such activities under Section 1324(a)(1)(A)(iv).2

That state of affairs cannot be attributed to “noblesse oblige,” Resp. Br. 20 (citation omitted). It is instead a result of the limitations inherent in Section

1324(a)(1)(A)(iv), to which the government must adhere.

And this Court can remove any doubt by holding, in the

course of rejecting respondent’s overbreadth challenge,

that Section 1324(a)(1)(A)(iv) is a traditional prohibition

on soliciting or facilitating illegal activity. Such a holding would make clear that the statute focuses on unlawful conduct and reaches only speech that has long been

understood to be “categorically excluded from First

Amendment protection.” Williams, 553 U.S. at 297.

And it would foreclose any future attempt to apply the

statute to the sorts of speech that respondent and his

amici posit.

C. Section 1324(a)(1)(A)(iv)’s Coverage Of Civil Immigration Violations Does Not Establish Overbreadth

The Ninth Circuit did not suggest that Section

1324(a)(1)(A)(iv) would violate the First Amendment if

Several amici claim that the government has “[w]eaponized”

Section 1324(a)(1)(A)(iv) to chill speech by journalists. First

Amend. Coalition et al. Amici Br. 13 (emphasis omitted). But their

sole evidence is a 2019 letter in which the Department of Homeland

Security cited that provision in describing an investigation for “possibly assisting migrants in crossing the border illegally and/or as

having some level of participation in” attacks on Border Patrol

agents. Letter from Randy J. Howe, Exec. Dir., Office of Field Operations, U.S. Customs & Border Prot., to Mana Azarmi, Ctr. for

Democracy & Tech. 1 (May 9, 2019), perma.cc/G9GM-SRX3.

2

17

it were interpreted to prohibit only facilitation and solicitation. Respondent asserts, however, that Section

1324(a)(1)(A)(iv) would be overbroad even if so interpreted on the theory that Congress may not prohibit

speech that facilitates or solicits “civil immigration violations.” Resp. Br. 38. Respondent and his amici advance two versions of that argument, but neither has

merit. And even if those fallback arguments were correct, they would at most support invalidating certain applications of Section 1324(a)(1)(A)(iv); they would not

justify the Ninth Circuit’s facial overbreadth holding.

1. Respondent principally asserts (Br. 41-44) that

speech soliciting or facilitating civil violations enjoys

full First Amendment protection. That is wrong. This

Court has sometimes described the relevant First

Amendment exception using the shorthand “speech integral to criminal conduct.” Stevens, 559 U.S. at 468

(citing Giboney v. Empire Storage & Ice Co., 336 U.S.

490, 498 (1949)). But the Court has also repeatedly recognized that similar principles apply to speech integral

to civil violations.

Indeed, just a year after deciding Giboney—the canonical case in this area—the Court specifically rejected the very distinction respondent proposes. In

Giboney, the Court had upheld an injunction barring a

union’s picketing activity because that picketing was

“an integral part of conduct in violation of a valid criminal statute” prohibiting restraints of trade. 336 U.S. at

498. In Building Service Employees International Union v. Gazzam, 339 U.S. 532 (1950), a union challenging

a similar injunction sought to distinguish Giboney on

the ground that the statute in Giboney “had criminal

sanctions” whereas the law in Gazzam did not. Id. at

540. This Court squarely rejected that distinction,

18

explaining that “[m]uch public policy does not readily

lend itself to accompanying criminal sanctions.” Ibid.3

The Court’s decision in Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376

(1973), further confirms that the government may proscribe speech integral to civil violations—in that case,

discriminatory employment advertisements. Id. at 387388. The government may thus “prohibit employers

from discriminating in hiring on the basis of race,” even

when the discrimination is accomplished partly or entirely through speech, such as a sign advertising a position as open to “ ‘White Applicants Only.’ ” Rumsfeld v.

FAIR, Inc., 547 U.S. 47, 62 (2006).

Respondent objects (Br. 40 n.8) that Pittsburgh

Press involved commercial speech. But this Court rejected that distinction in Williams, emphasizing that

the “categorical exclusion” from First Amendment protection recognized in Pittsburgh Press “is based not on

the less privileged First Amendment status of commercial speech,” but rather on the recognition that offers to

engage in illegal transactions “have no social value.”

553 U.S. at 298.

This Court’s decisions in Gazzam and Pittsburgh

Press reflect longstanding principles. The common law,

for example, recognized that one who provides “[a]dvice

or encouragement” to tortious action may be liable for

the resulting harm. Restatement (Second) of Torts

§ 876 cmt. d (1979); see 1 Thomas M. Cooley & D. Avery

Haggard, A Treatise on the Law of Torts § 75, at 239

Although the government’s opening brief relied (at 43-44) on

Gazzam, respondent does not address it. And respondent’s more

general suggestion (Br. 40 n.8) that “picketing cases” are irrelevant

overlooks that Giboney itself was such a case. See Giboney, 336 U.S.

at 491; see also Williams, 553 U.S. at 297 (citing Giboney).

3

19

(4th ed. 1932) (describing liability for “advising or procuring” tortious action); see also Halberstam v. Welch,

705 F.2d 472, 481-482 (D.C. Cir. 1983) (collecting examples). Similarly, any person who “actively induces infringement of a patent shall be liable as an infringer.”

35 U.S.C. 271(b). And a person who “intentionally induc[es] or encourag[es]” copyright infringement is likewise secondarily liable for the infringement. MetroGoldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S.

913, 930 (2005). Those examples refute respondent’s assertion that the First Amendment protects speech integral to civil violations.

2. Respondent at times appears to suggest (Br. 40)

a narrower argument that even if Congress can impose

civil sanctions on speech that solicits or facilitates civil

violations, it cannot impose criminal prohibitions. Professor Volokh advances a similar argument, approving

(Br. 4-5) “civil regulation of speech that is an integral

part of civilly regulated conduct” while opposing criminal regulation of such speech. But respondent and his

amici cite no precedent for that “mismatch” theory of

the First Amendment. Instead, this Court has recognized that solicitations or encouragements of illegal activity are “categorically excluded from First Amendment protection.” Williams, 553 U.S. at 297.

Nor is there any principled reason to adopt a novel

all-or-nothing approach in which the conduct of all parties to a transaction must be labeled criminal in order

for any party’s to be criminally punished. Professor Volokh posits (Br. 5-6) that the First Amendment exception for speech integral to unlawful conduct rests on

“equating conduct and speech,” and he maintains that

speech cannot “be punished more severely” than corresponding “conduct.” But even if that principle were

20

sound, it would not assist respondent because it relies

on the wrong comparison: The conduct that corresponds to speech covered by Section 1324(a)(1)(A)(iv) is

not the noncitizen’s underlying immigration violation,

but rather the facilitation of such violations through

conduct. Section 1324(a)(1)(A)(iv) reflects a permissible

legislative judgment that those who facilitate immigration violations are more culpable than the noncitizens

they assist—who, as this case shows, may themselves

be unwitting victims. And Section 1324(a)(1)(A)(iv) subjects such facilitation to the same punishment whether

it takes the form of speech or conduct.

3. Even if respondent’s novel distinction between

civil and criminal prohibitions had merit, it would not

justify facially invalidating Section 1324(a)(1)(A)(iv).

The statute would still raise no First Amendment concerns in its many applications to conduct, as well as to

speech that facilitates or solicits immigration crimes—

such as entering the United States unlawfully, see 18

U.S.C. 1325(a), or remaining in the United States unlawfully after receiving a final order of removal, see

8 U.S.C. 1253(a). Nor would the statute be “unconstitutional as applied” to respondent. Resp. Br. 44. Respondent’s inducements constituted fraud, and fraud is

its own recognized category of unprotected speech.

See, e.g., Stevens, 559 U.S. at 468.

D. Respondent’s Overbreadth Challenge Is Especially Misplaced Because He Was Convicted Of The Aggravated

Offense In Section 1324(a)(1)(B)(i)

Even if this Court concluded that some applications

of Section 1324(a)(1)(A)(iv) might violate the First

Amendment, that possibility would not justify the “last

resort” remedy of “striking down a statute on its face at

the request of one whose own conduct may be punished

21

despite the First Amendment.” Los Angeles Police

Dep’t v. United Reporting Publ’g Corp., 528 U.S. 32, 39

(1999) (citation omitted). The “mere fact that one can

conceive of some impermissible applications of a statute” may provide grounds for future as-applied challenges, but it “is not sufficient to render [the law] susceptible to an overbreadth challenge.” Williams, 553

U.S. at 303 (citation omitted). And invoking the overbreadth doctrine was “particularly inappropriate here,

given that [respondent] was convicted of an aggravated

version” of the inducement offense that is far narrower

than the one he challenges on overbreadth grounds.

Pet. App. 79a (Collins, J., dissenting from the denial of

rehearing en banc); see Gov’t Br. 46-49.

Respondent was not convicted simply of violating

Section 1324(a)(1)(A)(iv), but instead of the greater offense of violating that provision “for the purpose of commercial advantage or private financial gain,” 8 U.S.C.

1324(a)(1)(B)(i). See J.A. 20, 115-116. If respondent is

permitted under the overbreadth doctrine to challenge

his conviction by hypothesizing nonexistent prosecutions, they should at least be prosecutions whose stylized

facts would support all of the findings that the jury made

in his case. Gov’t Br. 48; cf. Montana Br. 20-22. Respondent is wrong to suggest (Br. 33-34) that rejecting

the Ninth Circuit’s contrary approach would increase

the amount of speech that could be regulated. Declining

to extend overbreadth challenges in the way respondent

proposes merely limits who can invoke the First

Amendment rights of others, not what those rights are.

Taking account of the financial-gain requirement

would eliminate the vast majority of the hypotheticals

invoked by the Ninth Circuit (Pet. App. 11a) and

respondent (e.g., Br. 16). For example, even if words of

22

encouragement from a family member, priest, college

counselor, or public official could somehow violate Section 1324(a)(1)(A)(iv), such speech is not ordinarily “for

the purpose of commercial advantage or private financial gain.” 8 U.S.C. 1324(a)(1)(B)(i). Nor would it become so even if, as respondent posits (Br. 35), the priest,

counselor, or official is paid, as long as commercial advantage or private gain is not the speaker’s purpose.

If the government were to try to prosecute someone

under Section 1324(a)(1)(A)(iv) for protected speech,

that defendant could bring an as-applied First Amendment claim. Alternatively, a person or organization

whose First Amendment activity is actually chilled

might attempt to satisfy the Article III and other requirements necessary to bring a pre-enforcement challenge to the provision. See, e.g., Susan B. Anthony List

v. Driehaus, 573 U.S. 149, 151-152 (2014). But no sound

reason exists to uphold the expansive invocation of

third-party rights by a criminal defendant who lacks

any as-applied claim of his own.

E. Respondent’s Alternative Arguments Lack Merit And,

In Any Event, Are Best Addressed On Remand

Respondent makes several alternative arguments

that the Ninth Circuit did not address. But this Court

is a “court of review, not of first view.” Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005). If the Court rejects

the Ninth Circuit’s overbreadth rationale—which was

that court’s exclusive ground for vacating respondent’s

Section 1324(a)(1)(A)(iv) convictions, Pet. App. 3a, 13a14a—the Court should reverse and remand, which

would allow for the consideration of any alternative arguments that respondent has properly preserved. See,

e.g., United States v. Stitt, 139 S. Ct. 399, 407-408

23

(2018); Elonis v. United States, 575 U.S. 723, 741-742

(2015).

In any event, respondent’s alternative arguments

are unsound. Respondent briefly contends (Br. 20-21)

that Section 1324(a)(1)(A)(iv) is impermissibly contentand viewpoint-based. But any prohibition on the solicitation or facilitation of an illegal act could be characterized as a ban on pro-illegality speech but not antiillegality speech. Such prohibitions are nevertheless

commonplace and constitutionally unobjectionable.

Williams, 553 U.S. at 298. And nothing precludes Congress from prohibiting the solicitation or facilitation of

illegal conduct that it deems especially pernicious without applying that prohibition to all illegal conduct. See

R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992).

Respondent also argues (Br. 45-48) that his convictions should be vacated even if this Court rejects the

Ninth Circuit’s overbreadth holding, on the theory that

the jury was not properly instructed on the scope of

Section 1324(a)(1)(A)(iv). But any instructional error

would be subject to harmless-error analysis, cf. Neder

v. United States, 527 U.S. 1, 8-9 (1999), which would be

best undertaken in the first instance below.

*****

For the foregoing reasons and those stated in our

opening brief, the judgment of the court of appeals

should be reversed.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

MARCH 2023