The United States Supreme Court majority continued in relevant part: Neither requires lending physical aid; for both, words may be enough. And both require an intent to bring about a particular unlawful act. The terms “encourage” and “induce,” found in clause (iv), are among the “most common” verbs used to denote solicitation and facilitation. W. LaFave, Substantive Criminal Law § 13.2(a). Their specialized usage is displayed in the federal criminal code as well as the criminal laws of every State. If the challenged statute uses those terms as they are typically understood in the criminal law, an overbreadth challenge would be hard to sustain.
Hansen, like the Ninth Circuit, insists that clause (iv) uses “encourages” and “induces” in their ordinary rather than specialized sense. In ordinary parlance, “induce” means “to lead on; to influence; to prevail on; to move by persuasion or influence,” Webster’s New International Dictionary 1269, and “encourage” means to “inspire with courage, spirit, or hope,” Webster’s Third New International Dictionary. If clause (iv) conveys these ordinary meanings, it arguably reaches abstract advocacy or general encouragement, and its applications to protected speech might render it vulnerable to an overbreadth challenge.
The Court holds that clause (iv) uses “encourages or induces” in its specialized, criminal-law sense—that is, as incorporating common law liability for solicitation and facilitation. Context indicates that Congress used those words as terms of art. “Encourage” and “induce” have well-established legal meanings— and when Congress “borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word.” Morissette v. United States, 342 U. S. 246, 263. That inference is even stronger here, because clause (iv) prohibits “encouraging” and “inducing” a violation of law, which is the object of solicitation and facilitation too. The Ninth Circuit stacked the deck in favor of ordinary meaning, but it should have given specialized meaning a fair shake. When words have several plausible definitions, context differentiates among them. Here, the context of these words indicates that Congress used them as terms of art.
Justice Barrett and the majority’s analysis is logical regarding the context of the statute’s language. Holding otherwise would invite unnecessary constitutional challenges and the overturning of convictions that would undermine the efficient administration of justice.
