Jackson, J., dissenting
tested only by those hardy enough to risk criminal prosecution to determine the proper scope of regulation.” Id., at 487. We thus allow defendants whose speech is constitutionally proscribed by a statute (like Hansen) to argue that the statute is nevertheless facially invalid under the First Amendment on the grounds that “a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” Stevens, 559 U. S., at 473 (internal quotation marks omitted). By permitting this kind of challenge, the Court has “avoided making vindication of freedom of expression await the outcome of protracted litigation.” Dombrowski, 380 U. S., at 487.
If this Court is willing to redline Congress’s work to save it from unconstitutionality, it “sharply diminish[es] Congress’s incentive to draft a narrowly tailored law in the first place,” Stevens, 559 U. S., at 481 (internal quotation marks omitted), which runs directly counter to overbreadth’s goal of limiting criminal laws that chill constitutionally protected speech. Thus, in the particular context of an overbreadth challenge, countervailing constitutional concerns—namely, that constitutionally protected speech will be chilled—must be considered alongside the values that underpin our ordinary canon of constitutional avoidance.
Heavy reliance on constitutional avoidance where statutes would otherwise be facially overbroad also means that the broad language in the particular statute remains on the books—as compared to the alternative world, in which the Court holds the statute unconstitutional as facially overbroad and thereby prompts the enactment of a narrower replacement. Ordinary people confronted with the encouragement provision, for instance, will see only its broad, speech-chilling language. Even if they do consult this Court’s decision, and do recognize that it substantially narrows the statute’s scope, the Court’s decision leaves many things about future potential prosecutions up in the air.
