re: SCOTUS Watch: Tuesday

I'm not sure if Hansen was discussed on the board or not.

From SCOTUSblog which is the best scotus coverage out there, imo.

The question before the justices was whether a federal law that criminalizes “encouraging or inducing” an immigrant to come or remain in the United States unlawfully violates the First Amendment’s guarantee of the freedom of speech. The court narrowly interpreted the law to avoid the First Amendment concerns that would be raised if “encourage or induce” were given their ordinary, conversational meanings — and include meanings such as to “influence,” “encourage,” or “inspire with hope” — as the U.S. Court of Appeals for the 9th Circuit had held they did.

Interesting history to this case if people want to read the entry at scotusblog.

More from the article

The federal government conceded that the law was unconstitutionally overbroad if given its ordinary meaning, and that it did not defend the statute if interpreted in that way. Instead, the government urged the court to read “encourage or induce” to encompass only the purposeful solicitation and facilitation of specific acts known to violate federal law — an interpretation the court ultimately adopted. The canon of constitutional avoidance requires the court to adopt a construction that will avoid constitutional violations if that interpretation is “fairly possible,” and the court concluded that the government’s interpretation was just that.

The court focused on the specialized definitions of “encourage or induce,” which it said have well-established meanings that are pervasive in both federal and state criminal law...

In a concurring opinion, Justice Clarence Thomas urged his colleagues to reconsider the overbreadth doctrine in a future case. He contended that it “lacks any basis in the text or history of the First Amendment” and, by requiring courts to balance constitutional and unconstitutional applications of the law, demands courts to do “nothing short of a society-wide policy determination of the sort that legislatures perform.”

Justice Ketanji Brown Jackson, joined by Justice Sonia Sotomayor, penned a dissent in which she argued that the majority’s decision departed from ordinary statutory interpretation principles. The statute, Jackson argued, must be interpreted by its plain text and therefore is overbroad and must be struck down. REMEMBER THIS FOR LATER CASES AND OPINIONS FROM JACKSON.

How should we interpret the court’s less speech libertarian but arguably measured approach as we look ahead to major First Amendment cases like this term’s 303 Creative about whether a website designer has a First Amendment right to refuse to serve gay couples, or high-profile challenges to laws regulating social media platforms, which the court could take up next term? Have the justices been chastened by concerns about the court’s legitimacy? Or are the justices and new court simply in the process of defining their priorities, perhaps moving from the speech-libertarian tilt of recent courts to one that more heavily emphasizes religious rights, race neutrality, and separation of powers (such as the newly minted major questions doctrine)? Perhaps some mix of all of the above is at play — any of which may have significant consequences for the future of both the court and constitutional law.