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In Hansen, SCOTUS had two choices: instruct Congress and all legislatures to use the words they actually mean when they write laws; or instruct everyone else to just accept that criminal laws do not use the ordinary meaning of words, but instead use specialized jargon, unknowable to most nonlawyers.
Regrettably it chose the latter.
So ... here is my screed on this morning's decision https://www.supremecourt.gov/opinions/22pdf/22-179_o75q.pdf
In Hansen, SCOTUS rejected the ordinary meaning of “encourage” and held instead that when used in criminal laws it brings with it accumulated legal tradition and “the cluster of ideas attached” to each word.
In Hansen, SCOTUS rejected the ordinary meaning of “encourage” and held instead that when used in criminal laws it brings with it accumulated legal tradition and “the cluster of ideas attached” to each word.
So rather than telling legislatures to use the word “solicit” when they want to criminalize solicitation, the Court upheld the federal crime to “encourage” illegal immigration because “encourage” does not mean “encourage” as every non-lawyer who has to comply with the law thinks it does.
TLDR: No First Amendment problem because no chilling effect as long as you have deeply studied criminal law.
Also! Not only does the court import unstated meanings into words, it also imports unstated Intent standards! So good luck figuring out whether you are committing a crime without consulting a lawyer.
Our amicus brief urging -- ENCOURAGING -- a different result is here: https://www.eff.org/deeplinks/2023/02/eff-files-amicus-brief-protect-speech-rights-immigrants-and-immigrant-rights
Last tidbits:
Justice Thomas concurred again calling on the Court to reconsider the facial overbreadth doctrine, another example of Thomas wanting to reconsider long-standing free speech protections.
Jackson and Sotomayor dissented noting the obvious overbreadth of the plain meaning of the law.
And here's our blog post on the decision: https://www.eff.org/deeplinks/2023/06/united-states-vs-hansen-decision-not-encouraging-speech-rights