Jackson, J., dissenting
kinds of turnabouts might well be chalked up to institutional incentives and coordination challenges in a massive prosecutorial system. But given these dynamics, the answer to whether the Government has, as of today, prosecuted Hansen’s hypothetical scenarios may understandably provide cold comfort to those living and working with immigrants.
In any event, it makes little sense for the number of unconstitutional prosecutions to be the litmus test for whether speech is being chilled by a facially overbroad statute. The number of people who have not exercised their right to speak out of fear of prosecution is, quite frankly, unknowable.
Moreover, criminal prosecutions are not the only method by which statutes can be wielded to chill free speech. Hansen’s amici detail how Customs and Border Protection (CBP) relied on the encouragement provision to justify its creation of a “watchlist” of potential speakers that CBP had compiled in connection with its monitoring of a large group of migrants—a list that included journalists simply reporting factual information about the group’s progress. Brief for Reporters Committee for Freedom of the Press as Amicus Curiae 5–6. CBP allegedly compiled dossiers on those reporters and singled them out as targets for special screenings. Ibid. There can be no doubt that this kind of Government surveillance—targeted at journalists reporting on an important topic of public concern, no less—tends to chill speech, even though it falls short of an actual prosecution.
Hansen’s amici also describe how a group of Members of Congress recently sent a letter to three religious organizations that help undocumented immigrants, directing the or-
See Ciminelli v. United States, 598 U. S. 306, 316–317 (2023); Percoco v. United States, 598 U. S. 319, 332–333 (2023); Dubin v. United States, 599 U. S. ___, ___–___ (2023) (slip op., at 2–3).
