561 U. S. ____ (2010)
561 U. S. ____ (2010)
561 U. S. ____ (2010)
SUPREME COURT OF THE UNITED STATES
NOS. 08-1498 AND 09-89
ERIC H. HOLDER, Jr., ATTORNEY GENERAL, et al.,
PETITIONERS
08–1498
v.
HUMANITARIAN LAW PROJECT et al.
HUMANITARIAN LAW PROJECT, et al.,
PETITIONERS
09–89
v.
ERIC H. HOLDER, Jr., ATTORNEY GENERAL,
et al.
on writs of certiorari to the united states court
of appeals for the ninth circuit
[June 21, 2010]
Chief Justice Roberts delivered
the opinion of the Court.
Congress has prohibited the
provision of “material support or resources” to certain foreign
organizations that engage in terrorist activity. 18 U. S. C.
§2339B(a)(1). That prohibition is based on a finding that the
specified organizations “are so tainted by their criminal conduct
that any contribution to such an organization facilitates that
conduct.” Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), §301(a)(7), 110 Stat. 1247, note following 18 U.
S. C. §2339B (Findings and Purpose). The plaintiffs in this
litigation seek to provide support to two such organizations.
Plaintiffs claim that they seek to facilitate only the lawful,
nonviolent purposes of those groups, and that applying the
material-support law to prevent them from doing so violates the
Constitution. In particular, they claim that the statute is too
vague, in violation of the Fifth Amendment, and that it infringes
their rights to freedom of speech and association, in violation of
the First Amendment. We conclude that the material-support statute
is constitutional as applied to the particular activities
plaintiffs have told us they wish to pursue. We do not, however,
address the resolution of more difficult cases that may arise under
the statute in the future.
I
This litigation concerns 18 U.
S. C. §2339B, which makes it a federal crime to “knowingly
provid[e] material support or resources to a foreign terrorist
organization.”[
Footnote 1]
Congress has amended the definition of “material support or
resources” periodically, but at present it is defined as
follows:
“[T]he term ‘material support or resources’ means
any property, tangible or intangible, or service, including
currency or monetary instruments or financial securities, financial
services, lodging, training, expert advice or assistance,
safehouses, false documentation or identification, communications
equipment, facilities, weapons, lethal substances, explosives,
personnel (1 or more individuals who may be or include oneself),
and transportation, except medicine or religious materials.”
§2339A(b)(1); see also §2339B(g)(4).
The authority to designate an
entity a “foreign terrorist organization” rests with the Secretary
of State. 8 U. S. C. §§1189(a)(1), (d)(4). She may, in
consultation with the Secretary of the Treasury and the Attorney
General, so designate an organization upon finding that it is
foreign, engages in “terrorist activity” or “terrorism,” and
thereby “threatens the security of United States nationals or the
national security of the United States.” §§1189(a)(1), (d)(4).
“ ‘[N]ational security’ means the national defense, foreign
relations, or economic interests of the United States.”
§1189(d)(2). An entity designated a foreign terrorist organization
may seek review of that designation before the D. C. Circuit
within 30 days of that designation. §1189(c)(1).
In 1997, the Secretary of State designated 30
groups as foreign terrorist organizations. See 62 Fed. Reg. 52650.
Two of those groups are the Kurdistan Workers’ Party (also known as
the Partiya Karkeran Kurdistan, or PKK) and the Liberation Tigers
of Tamil Eelam (LTTE). The PKK is an organization founded in 1974
with the aim of establishing an independent Kurdish state in
southeastern Turkey.
Humanitarian Law Project v.
Reno, 9 F. Supp. 2d 1176, 1180–1181 (CD Cal. 1998);
Brief for Petitioners in No. 08–1498, p. 6 (hereinafter Brief
for Government). The LTTE is an organization founded in 1976 for
the purpose of creating an independent Tamil state in Sri Lanka. 9
F. Supp. 2d, at 1182; Brief for Government 6. The District
Court in this action found that the PKK and the LTTE engage in
political and humanitarian activities. See 9 F. Supp. 2d, at
1180–1182. The Government has presented evidence that both groups
have also committed numerous terrorist attacks, some of which have
harmed American citizens. See App. 128–133. The LTTE sought
judicial review of its designation as a foreign terrorist
organization; the D. C. Circuit upheld that designation. See
People’s Mojahedin Organization of Iran v.
Dept. of
State, 182 F. 3d 17, 18–19, 25 (1999). The PKK did not
challenge its designation. 9 F. Supp. 2d, at 1180.
Plaintiffs in this litigation are two U. S.
citizens and six domestic organizations: the Humanitarian Law
Project (HLP) (a human rights organization with consultative status
to the United Nations); Ralph Fertig (the HLP’s president, and a
retired administrative law judge); Nagalingam Jeyalingam (a Tamil
physician, born in Sri Lanka and a naturalized U. S. citizen); and
five nonprofit groups dedicated to the interests of persons of
Tamil descent. Brief for Petitioners in No. 09–89, pp. ii, 10
(hereinafter Brief for Plaintiffs); App. 48. In 1998, plaintiffs
filed suit in federal court challenging the constitutionality of
the material-support statute, §2339B. Plaintiffs claimed that they
wished to provide support for the humanitarian and political
activities of the PKK and the LTTE in the form of monetary
contributions, other tangible aid, legal training, and political
advocacy, but that they could not do so for fear of prosecution
under §2339B. 9 F. Supp. 2d, at 1180–1184.[
Footnote 2]
As relevant here, plaintiffs claimed that the
material-support statute was unconstitutional on two grounds:
First, it violated their freedom of speech and freedom of
association under the First Amendment, because it criminalized
their provision of material support to the PKK and the LTTE,
without requiring the Government to prove that plaintiffs had a
specific intent to further the unlawful ends of those
organizations.
Id., at 1184. Second, plaintiffs argued
that the statute was unconstitutionally vague.
Id., at
1184–1185.
Plaintiffs moved for a preliminary injunction,
which the District Court granted in part. The District Court held
that plaintiffs had not established a probability of success on
their First Amendment speech and association claims. See
id., at 1196–1197. But the court held that plaintiffs had
established a probability of success on their claim that, as
applied to them, the statutory terms “personnel” and “training” in
the definition of “material support” were impermissibly vague. See
id., at 1204.
The Court of Appeals affirmed. 205 F. 3d
1130, 1138 (CA9 2000). The court rejected plaintiffs’ speech and
association claims, including their claim that §2339B violated the
First Amendment in barring them from contributing money to the PKK
and the LTTE. See
id., at 1133–1136. But the Court of
Appeals agreed with the District Court that the terms “personnel”
and “training” were vague because it was “easy to imagine protected
expression that falls within the bounds” of those terms.
Id., at 1138; see
id., at 1137.
With the preliminary injunction issue decided,
the action returned to the District Court, and the parties moved
for summary judgment on the merits. The District Court entered a
permanent injunction against applying to plaintiffs the bans on
“personnel” and “training” support. See No. CV–98–1971 ABC (BQRx),
2001 WL 36105333 (CD Cal., Oct. 2, 2001). The Court of Appeals
affirmed. 352 F. 3d 382 (CA9 2003).
Meanwhile, in 2001, Congress amended the
definition of “material support or resources” to add the term
“expert advice or assistance.” Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001 (Patriot Act), §805(a)(2)(B), 115 Stat. 377.
In 2003, plaintiffs filed a second action challenging the
constitutionality of that term as applied to them. 309
F. Supp. 2d 1185, 1192 (CD Cal. 2004).
In that action, the Government argued that
plaintiffs lacked standing and that their preenforcement claims
were not ripe.
Id., at 1194. The District Court held that
plaintiffs’ claims were justiciable because plaintiffs had
sufficiently demonstrated a “genuine threat of imminent
prosecution,”
id., at 1195 (internal quotation marks
omitted), and because §2339B had the potential to chill plaintiffs’
protected expression, see
id., at 1197–1198. On the
merits, the District Court held that the term “expert advice or
assistance” was impermissibly vague.
Id., at 1201. The
District Court rejected, however, plaintiffs’ First Amendment
claims that the new term was substantially overbroad and
criminalized associational speech. See
id., at 1202,
1203.
The parties cross-appealed. While the
cross-appeals were pending, the Ninth Circuit granted en banc
rehearing of the panel’s 2003 decision in plaintiffs’ first action
(involving the terms “personnel” and “training”). See 382
F. 3d 1154, 1155 (2004). The en banc court heard reargument on
December 14, 2004. See 380 F. Supp. 2d 1134, 1138 (CD Cal.
2005). Three days later, Congress again amended §2339B and the
definition of “material support or resources.” Intelligence Reform
and Terrorism Prevention Act of 2004 (IRTPA), §6603, 118 Stat.
3762–3764.
In IRTPA, Congress clarified the mental state
necessary to violate §2339B, requiring knowledge of the foreign
group’s designation as a terrorist organization or the group’s
commission of terrorist acts. §2339B(a)(1). Congress also added the
term “service” to the definition of “material support or
resources,” §2339A(b)(1), and defined “training” to mean
“instruction or teaching designed to impart a specific skill, as
opposed to general knowledge,” §2339A(b)(2). It also defined
“expert advice or assistance” to mean “advice or assistance derived
from scientific, technical or other specialized knowledge.”
§2339A(b)(3). Finally, IRTPA clarified the scope of the term
“personnel” by providing:
“No person may be prosecuted under [§2339B] in
connection with the term ‘personnel’ unless that person has
knowingly provided, attempted to provide, or conspired to provide a
foreign terrorist organization with 1 or more individuals (who may
be or include himself) to work under that terrorist organization’s
direction or control or to organize, manage, supervise, or
otherwise direct the operation of that organization. Individuals
who act entirely independently of the foreign terrorist
organization to advance its goals or objectives shall not be
considered to be working under the foreign terrorist organization’s
direction and control.” §2339B(h).
Shortly after Congress enacted
IRTPA, the en banc Court of Appeals issued an order in plaintiffs’
first action. 393 F. 3d 902, 903 (CA9 2004). The en banc court
affirmed the rejection of plaintiffs’ First Amendment claims for
the reasons set out in the Ninth Circuit’s panel decision in 2000.
See
ibid. In light of IRTPA, however, the en banc court
vacated the panel’s 2003 judgment with respect to vagueness, and
remanded to the District Court for further proceedings.
Ibid. The Ninth Circuit panel assigned to the
cross-appeals in plaintiffs’ second action (relating to “expert
advice or assistance”) also remanded in light of IRTPA. See 380
F. Supp. 2d, at 1139.
The District Court consolidated the two
actions on remand. See
ibid. The court also allowed
plaintiffs to challenge the new term “service.” See
id.,
at 1151, n. 24. The parties moved for summary judgment, and the
District Court granted partial relief to plaintiffs on vagueness
grounds. See
id., at 1156.
The Court of Appeals affirmed once more. 552
F. 3d 916, 933 (CA9 2009). The court first rejected
plaintiffs’ claim that the material-support statute would violate
due process unless it were read to require a specific intent to
further the illegal ends of a foreign terrorist organization. See
id., at 926–927. The Ninth Circuit also held that the
statute was not overbroad in violation of the First Amendment. See
id., at 931–932. As for vagueness, the Court of Appeals
noted that plaintiffs had not raised a “facial vagueness
challenge.”
Id., at 929, n. 6. The court held that,
as applied to plaintiffs, the terms “training,” “expert advice or
assistance” (when derived from “other specialized knowledge”), and
“service” were vague because they “continue[d] to cover
constitutionally protected advocacy,” but the term “personnel” was
not vague because it “no longer criminalize[d] pure speech
protected by the First Amendment.”
Id., at 929–931.
The Government petitioned for certiorari, and
plaintiffs filed a conditional cross-petition. We granted both
petitions. 557 U. S. ___ (2009).
II
Given the complicated 12-year
history of this litigation, we pause to clarify the questions
before us. Plaintiffs challenge §2339B’s prohibition on four types
of material support—“training,” “expert advice or assistance,”
“service,” and “personnel.” They raise three constitutional claims.
First, plaintiffs claim that §2339B violates the Due Process Clause
of the Fifth Amendment because these four statutory terms are
impermissibly vague. Second, plaintiffs claim that §2339B violates
their freedom of speech under the First Amendment. Third,
plaintiffs claim that §2339B violates their First Amendment freedom
of association.
Plaintiffs do not challenge the
above statutory terms in all their applications. Rather, plaintiffs
claim that §2339B is invalid to the extent it prohibits them from
engaging in certain specified activities. See Brief for Plaintiffs
16–17, n. 10. With respect to the HLP and Judge Fertig, those
activities are: (1) “train[ing] members of [the] PKK on how to use
humanitarian and international law to peacefully resolve disputes”;
(2) “engag[ing] in political advocacy on behalf of Kurds who live
in Turkey”; and (3) “teach[ing] PKK members how to petition various
representative bodies such as the United Nations for relief.” 552
F. 3d, at 921, n. 1; see 380 F. Supp. 2d, at 1136.
With respect to the other plaintiffs, those activities are: (1)
“train[ing] members of [the] LTTE to present claims for
tsunami-related aid to mediators and international bodies”; (2)
“offer[ing] their legal expertise in negotiating peace agreements
between the LTTE and the Sri Lankan government”; and (3)
“engag[ing] in political advocacy on behalf of Tamils who live in
Sri Lanka.” 552 F. 3d, at 921, n. 1; see 380
F. Supp. 2d, at 1137.
Plaintiffs also state that “the LTTE was
recently defeated militarily in Sri Lanka,” so “[m]uch of the
support the Tamil organizations and Dr. Jeyalingam sought to
provide is now moot.” Brief for Plaintiffs 11, n. 5.
Plaintiffs thus seek only to support the LTTE “as a political
organization outside Sri Lanka advocating for the rights of
Tamils.”
Ibid. Counsel for plaintiffs specifically stated
at oral argument that plaintiffs no longer seek to teach the LTTE
how to present claims for tsunami-related aid, because the LTTE now
“has no role in Sri Lanka.” Tr. of Oral Arg. 63. For that reason,
helping the LTTE negotiate a peace agreement with Sri Lanka appears
to be moot as well. Thus, we do not consider the application of
§2339B to those activities here.
One last point. Plaintiffs seek preenforcement
review of a criminal statute. Before addressing the merits, we must
be sure that this is a justiciable case or controversy under
Article III. We conclude that it is: Plaintiffs face “a credible
threat of prosecution” and “should not be required to await and
undergo a criminal prosecution as the sole means of seeking
relief.”
Babbitt v.
Farm Workers,
442 U. S. 289, 298
(1979) (internal quotation marks omitted). See also
MedImmune,
Inc. v.
Genentech, Inc.,
549 U. S. 118, 128–129
(2007).
Plaintiffs claim that they provided support to
the PKK and the LTTE before the enactment of §2339B and that they
would provide similar support again if the statute’s allegedly
unconstitutional bar were lifted. See 309 F. Supp. 2d, at
1197. The Government tells us that it has charged about 150 persons
with violating §2339B, and that several of those prosecutions
involved the enforcement of the statutory terms at issue here. See
Brief for Government 5. The Government has not argued to this Court
that plaintiffs will not be prosecuted if they do what they say
they wish to do. Cf. Tr. of Oral Arg. 57–58. See
Babbitt,
supra, at 302. See also
Milavetz, Gallop &
Milavetz, P. A. v.
United States, 559 U. S. ___,
___, ___ (2010) (slip op., at 4, 19) (considering an as-applied
preenforcement challenge brought under the First Amendment). Based
on these considerations, we conclude that plaintiffs’ claims are
suitable for judicial review (as one might hope after 12 years of
litigation).
III
Plaintiffs claim, as a threshold
matter, that we should affirm the Court of Appeals without reaching
any issues of constitutional law. They contend that we should
interpret the material-support statute, when applied to speech, to
require proof that a defendant intended to further a foreign
terrorist organization’s illegal activities. That interpretation,
they say, would end the litigation because plaintiffs’ proposed
activities consist of speech, but plaintiffs do not intend to
further unlawful conduct by the PKK or the LTTE.
We reject plaintiffs’
interpretation of §2339B because it is inconsistent with the text
of the statute. Section 2339B(a)(1) prohibits “knowingly” providing
material support. It then specifically describes the type of
knowledge that is required: “To violate this paragraph, a person
must have knowledge that the organization is a designated terrorist
organization . . ., that the organization has engaged or engages in
terrorist activity …, or that the organization has engaged or
engages in terrorism… .”
Ibid. Congress plainly spoke
to the necessary mental state for a violation of §2339B, and it
chose knowledge about the organization’s connection to terrorism,
not specific intent to further the organization’s terrorist
activities.
Plaintiffs’ interpretation is also untenable
in light of the sections immediately surrounding §2339B, both of
which do refer to intent to further terrorist activity. See
§2339A(a) (establishing criminal penalties for one who “provides
material support or resources . . . knowing or intending that they
are to be used in preparation for, or in carrying out, a violation
of” statutes prohibiting violent terrorist acts); §2339C(a)(1)
(setting criminal penalties for one who “unlawfully and willfully
provides or collects funds with the intention that such funds be
used, or with the knowledge that such funds are to be used, in full
or in part, in order to carry out” other unlawful acts). Congress
enacted §2339A in 1994 and §2339C in 2002. See §120005(a), 108
Stat. 2022 (§2339A); §202(a), 116 Stat. 724 (§2339C). Yet Congress
did not import the intent language of those provisions into §2339B,
either when it enacted §2339B in 1996, or when it clarified
§2339B’s knowledge requirement in 2004.
Finally, plaintiffs give the game away when
they argue that a specific intent requirement should apply only
when the material-support statute applies to speech. There is no
basis whatever in the text of §2339B to read the same provisions in
that statute as requiring intent in some circumstances but not
others. It is therefore clear that plaintiffs are asking us not to
interpret §2339B, but to revise it. “Although this Court will often
strain to construe legislation so as to save it against
constitutional attack, it must not and will not carry this to the
point of perverting the purpose of a statute.”
Scales v.
United States,
367 U. S. 203, 211
(1961).
Scales is the case on which
plaintiffs most heavily rely, but it is readily distinguishable.
That case involved the Smith Act, which prohibited membership in a
group advocating the violent overthrow of the government. The Court
held that a person could not be convicted under the statute unless
he had knowledge of the group’s illegal advocacy and a specific
intent to bring about violent overthrow.
Id., at 220–222,
229. This action is different: Section 2339B does not criminalize
mere membership in a designated foreign terrorist organization. It
instead prohibits providing “material support” to such a group. See
infra, at 20–21, 35. Nothing about
Scales
suggests the need for a specific intent requirement in such a case.
The Court in
Scales, moreover, relied on both statutory
text and precedent that had interpreted closely related provisions
of the Smith Act to require specific intent. 367 U. S., at 209,
221–222. Plaintiffs point to nothing similar here.
We cannot avoid the constitutional issues in
this litigation through plaintiffs’ proposed interpretation of
§2339B.[
Footnote 3]
IV
We turn to the question whether
the material-support statute, as applied to plaintiffs, is
impermissibly vague under the Due Process Clause of the Fifth
Amendment. “A conviction fails to comport with due process if the
statute under which it is obtained fails to provide a person of
ordinary intelligence fair notice of what is prohibited, or is so
standardless that it authorizes or encourages seriously
discriminatory enforcement.”
United States v.
Williams,
553 U. S. 285, 304
(2008). We consider whether a statute is vague as applied to the
particular facts at issue, for “[a] plaintiff who engages in some
conduct that is clearly proscribed cannot complain of the vagueness
of the law as applied to the conduct of others.”
Hoffman
Estates v.
Flipside, Hoffman Estates, Inc.,
455 U. S. 489, 495
(1982). We have said that when a statute “interferes with the right
of free speech or of association, a more stringent vagueness test
should apply.”
Id., at 499. “But ‘perfect clarity and
precise guidance have never been required even of regulations that
restrict expressive activity.’ ”
Williams,
supra, at 304 (quoting
Ward v.
Rock Against
Racism,
491 U.
S. 781, 794 (1989)).
The Court of Appeals did not
adhere to these principles. Instead, the lower court merged
plaintiffs’ vagueness challenge with their First Amendment claims,
holding that portions of the material-support statute were
unconstitutionally vague because they applied to protected
speech—regardless of whether those applications were clear. The
court stated that, even if persons of ordinary intelligence
understood the scope of the term “training,” that term would
“remai[n] impermissibly vague” because it could “be read to
encompass speech and advocacy protected by the First Amendment.”
552 F. 3d, at 929. It also found “service” and a portion of
“expert advice or assistance” to be vague because those terms
covered protected speech.
Id., at 929–930.
Further, in spite of its own statement that it
was not addressing a “facial vagueness challenge,”
id., at
929, n. 6, the Court of Appeals considered the statute’s
application to facts not before it. Specifically, the Ninth Circuit
relied on the Government’s statement that §2339B would bar filing
an
amicus brief in support of a foreign terrorist
organization—which plaintiffs have not told us they wish to do, and
which the Ninth Circuit did not say plaintiffs wished to do—to
conclude that the statute barred protected advocacy and was
therefore vague. See
id., at 930. By deciding how the
statute applied in hypothetical circumstances, the Court of
Appeals’ discussion of vagueness seemed to incorporate elements of
First Amendment overbreadth doctrine. See
id., at 929–930
(finding it “easy to imagine” protected expression that would be
barred by §2339B (internal quotation marks omitted));
id.,
at 930 (referring to both vagueness and overbreadth).
In both of these respects, the Court of
Appeals contravened the rule that “[a] plaintiff who engages in
some conduct that is clearly proscribed cannot complain of the
vagueness of the law as applied to the conduct of others.”
Hoffman Estates,
supra, at 495. That rule makes
no exception for conduct in the form of speech. See
Parker
v.
Levy,
417 U. S. 733, 755–757
(1974). Thus, even to the extent a heightened vagueness standard
applies, a plaintiff whose speech is clearly proscribed cannot
raise a successful vagueness claim under the Due Process Clause of
the Fifth Amendment for lack of notice. And he certainly cannot do
so based on the speech of others. Such a plaintiff may have a valid
overbreadth claim under the First Amendment, but our precedents
make clear that a Fifth Amendment vagueness challenge does not turn
on whether a law applies to a substantial amount of protected
expression. See
Williams,
supra, at 304;
Hoffman Estates,
supra, at 494–495, 497.
Otherwise the doctrines would be substantially redundant.
Under a proper analysis, plaintiffs’ claims of
vagueness lack merit. Plaintiffs do not argue that the
material-support statute grants too much enforcement discretion to
the Government. We therefore address only whether the statute
“provide[s] a person of ordinary intelligence fair notice of what
is prohibited.”
Williams, 553 U. S., at 304.
As a general matter, the statutory terms at
issue here are quite different from the sorts of terms that we have
previously declared to be vague. We have in the past “struck down
statutes that tied criminal culpability to whether the defendant’s
conduct was ‘annoying’ or ‘indecent’—wholly subjective judgments
without statutory definitions, narrowing context, or settled legal
meanings.”
Id., at 306; see also
Papachristou v.
Jacksonville,
405 U. S. 156, n. 1
(1972) (holding vague an ordinance that punished “vagrants,”
defined to include “rogues and vagabonds,” “persons who use
juggling,” and “common night walkers” (internal quotation marks
omitted)). Applying the statutory terms in this action—“training,”
“expert advice or assistance,” “service,” and “personnel”—does not
require similarly untethered, subjective judgments.
Congress also took care to add narrowing
definitions to the material-support statute over time. These
definitions increased the clarity of the statute’s terms. See
§2339A(b)(2) (“ ‘training’ means instruction or teaching
designed to impart a specific skill, as opposed to general
knowledge”); §2339A(b)(3) (“ ‘expert advice or assistance’
means advice or assistance derived from scientific, technical or
other specialized knowledge”); §2339B(h) (clarifying the scope of
“personnel”). And the knowledge requirement of the statute further
reduces any potential for vagueness, as we have held with respect
to other statutes containing a similar requirement. See
Hill v.
Colorado,
530 U. S. 703, 732
(2000);
Posters ‘N’ Things, Ltd. v.
United
States,
511 U.
S. 513, 523, 526 (1994); see also
Hoffman Estates, 455
U. S., at 499.
Of course, the scope of the material-support
statute may not be clear in every application. But the dispositive
point here is that the statutory terms are clear in their
application to plaintiffs’ proposed conduct, which means that
plaintiffs’ vagueness challenge must fail. Even assuming that a
heightened standard applies because the material-support statute
potentially implicates speech, the statutory terms are not vague as
applied to plaintiffs. See
Grayned v.
City of
Rockford,
408
U. S. 104, 114–115 (1972) (rejecting a vagueness challenge to a
criminal law that implicated First Amendment activities);
Scales, 367 U. S., at 223 (same).
Most of the activities in which plaintiffs
seek to engage readily fall within the scope of the terms
“training” and “expert advice or assistance.” Plaintiffs want to
“train members of [the] PKK on how to use humanitarian and
international law to peacefully resolve disputes,” and “teach PKK
members how to petition various representative bodies such as the
United Nations for relief.” 552 F. 3d, at 921, n. 1. A
person of ordinary intelligence would understand that instruction
on resolving disputes through international law falls within the
statute’s definition of “training” because it imparts a “specific
skill,” not “general knowledge.” §2339A(b)(2). Plaintiffs’
activities also fall comfortably within the scope of “expert advice
or assistance”: A reasonable person would recognize that teaching
the PKK how to petition for humanitarian relief before the United
Nations involves advice derived from, as the statute puts it,
“specialized knowledge.” §2339A(b)(3). In fact, plaintiffs
themselves have repeatedly used the terms “training” and “expert
advice” throughout this litigation to describe their own proposed
activities, demonstrating that these common terms readily and
naturally cover plaintiffs’ conduct. See,
e.g., Brief for
Plaintiffs 10, 11; App. 56, 58, 59, 61, 62, 63, 80, 81, 98, 99,
106, 107, 117.
Plaintiffs respond by pointing to hypothetical
situations designed to test the limits of “training” and “expert
advice or assistance.” They argue that the statutory definitions of
these terms use words of degree—like “specific,” “general,” and
“specialized”—and that it is difficult to apply those definitions
in particular cases. See Brief for Plaintiffs 27 (debating whether
teaching a course on geography would constitute training);
id., at 29. And they cite
Gentile v.
State
Bar of Nev.,
501 U. S. 1030 (1991),
in which we found vague a state bar rule providing that a lawyer in
a criminal case, when speaking to the press, “may state without
elaboration . . . the general nature of the . . . defense.”
Id., at 1048 (internal quotation marks omitted).
Whatever force these arguments might have in
the abstract, they are beside the point here. Plaintiffs do not
propose to teach a course on geography, and cannot seek refuge in
imaginary cases that straddle the boundary between “specific
skills” and “general knowledge.” See
Parker v.
Levy, 417 U. S., at 756. We emphasized this point in
Scales, holding that even if there might be theoretical
doubts regarding the distinction between “active” and “nominal”
membership in an organization—also terms of degree—the defendant’s
vagueness challenge failed because his “case present[ed] no such
problem.” 367 U. S., at 223.
Gentile was different. There the
asserted vagueness in a state bar rule was directly implicated by
the facts before the Court: Counsel had reason to suppose that his
particular statements to the press would not violate the rule, yet
he was disciplined nonetheless. See 501 U. S., at 1049–1051. We did
not suggest that counsel could escape discipline on vagueness
grounds if his own speech were plainly prohibited.
Plaintiffs also contend that they want to
engage in “political advocacy” on behalf of Kurds living in Turkey
and Tamils living in Sri Lanka. 552 F. 3d, at 921, n. 1.
They are concerned that such advocacy might be regarded as
“material support” in the form of providing “personnel” or
“service[s],” and assert that the statute is unconstitutionally
vague because they cannot tell.
As for “personnel,” Congress enacted a
limiting definition in IRTPA that answers plaintiffs’ vagueness
concerns. Providing material support that constitutes “personnel”
is defined as knowingly providing a person “to work under that
terrorist organization’s direction or control or to organize,
manage, supervise, or otherwise direct the operation of that
organization.” §2339B(h). The statute makes clear that “personnel”
does not cover
independent advocacy: “Individuals who act
entirely independently of the foreign terrorist organization to
advance its goals or objectives shall not be considered to be
working under the foreign terrorist organization’s direction and
control.”
Ibid.
“[S]ervice” similarly refers to concerted
activity, not independent advocacy. See Webster’s Third New
International Dictionary 2075 (1993) (defining “service” to mean
“the performance of work commanded or paid for by another: a
servant’s duty: attendance on a superior”; or “an act done for the
benefit or at the command of another”). Context confirms that
ordinary meaning here. The statute prohibits providing a service
“
to a foreign terrorist organization.” §2339B(a)(1)
(emphasis added). The use of the word “to” indicates a connection
between the service and the foreign group. We think a person of
ordinary intelligence would understand that independently
advocating for a cause is different from providing a service to a
group that is advocating for that cause.
Moreover, if independent activity in support
of a terrorist group could be characterized as a “service,” the
statute’s specific exclusion of independent activity in the
definition of “personnel” would not make sense. Congress would not
have prohibited under “service” what it specifically exempted from
prohibition under “personnel.” The other types of material support
listed in the statute, including “lodging,” “weapons,”
“explosives,” and “transportation,” §2339A(b)(1), are not forms of
support that could be provided independently of a foreign terrorist
organization. We interpret “service” along the same lines. Thus,
any independent advocacy in which plaintiffs wish to engage is not
prohibited by §2339B. On the other hand, a person of ordinary
intelligence would understand the term “service” to cover advocacy
performed in coordination with, or at the direction of, a foreign
terrorist organization.
Plaintiffs argue that this construction of the
statute poses difficult questions of exactly how much direction or
coordination is necessary for an activity to constitute a
“service.” See Reply Brief for Petitioners in No. 09–89, p. 14
(hereinafter Reply Brief for Plaintiffs) (“Would any communication
with any member be sufficient? With a leader? Must the
‘relationship’ have any formal elements, such as an employment or
contractual relationship? What about a relationship through an
intermediary?”). The problem with these questions is that they are
entirely hypothetical. Plaintiffs have not provided any specific
articulation of the degree to which
they seek to
coordinate their advocacy with the PKK and the LTTE. They have
instead described the form of their intended advocacy only in the
most general terms. See,
e.g., Brief for Plaintiffs 10–11
(plaintiffs “would like, among other things, to offer their
services to advocate on behalf of the rights of the Kurdish people
and the PKK before the United Nations and the United States
Congress” (internal quotation marks and alteration omitted)); App.
59 (plaintiffs would like to “write and distribute publications
supportive of the PKK and the cause of Kurdish liberation” and
“advocate for the freedom of political prisoners in Turkey”).
Deciding whether activities described at such
a level of generality would constitute prohibited “service[s]”
under the statute would require “sheer speculation”—which means
that plaintiffs cannot prevail in their preenforcement challenge.
See
Washington State Grange v.
Washington State
Republican Party,
552 U. S. 442, 454
(2008). It is apparent with respect to these claims that
“gradations of fact or charge would make a difference as to
criminal liability,” and so “adjudication of the reach and
constitutionality of [the statute] must await a concrete fact
situation.”
Zemel v.
Rusk,
381 U. S. 1, 20
(1965).
V
A
We next consider whether the
material-support statute, as applied to plaintiffs, violates the
freedom of speech guaranteed by the First Amendment. Both
plaintiffs and the Government take extreme positions on this
question. Plaintiffs claim that Congress has banned their “pure
political speech.”
E.g., Brief for Plaintiffs 2, 25, 43.
It has not. Under the material-support statute, plaintiffs may say
anything they wish on any topic. They may speak and write freely
about the PKK and LTTE, the governments of Turkey and Sri Lanka,
human rights, and international law. They may advocate before the
United Nations. As the Government states: “The statute does not
prohibit independent advocacy or expression of any kind.” Brief for
Government 13. Section 2339B also “does not prevent [plaintiffs]
from becoming members of the PKK and LTTE or impose any sanction on
them for doing so.”
Id., at 60. Congress has not,
therefore, sought to suppress ideas or opinions in the form of
“pure political speech.” Rather, Congress has prohibited “material
support,” which most often does not take the form of speech at all.
And when it does, the statute is carefully drawn to cover only a
narrow category of speech to, under the direction of, or in
coordination with foreign groups that the speaker knows to be
terrorist organizations.[
Footnote
4]
For its part, the Government
takes the foregoing too far, claiming that the only thing truly at
issue in this litigation is conduct, not speech. Section 2339B is
directed at the fact of plaintiffs’ interaction with the PKK and
LTTE, the Government contends, and only incidentally burdens their
expression. The Government argues that the proper standard of
review is therefore the one set out in
United States v.
O’Brien,
391 U. S. 367 (1968). In
that case, the Court rejected a First Amendment challenge to a
conviction under a generally applicable prohibition on destroying
draft cards, even though O’Brien had burned his card in protest
against the draft. See
id., at 370, 376, 382. In so doing,
we applied what we have since called “intermediate scrutiny,” under
which a “content-neutral regulation will be sustained under the
First Amendment if it advances important governmental interests
unrelated to the suppression of free speech and does not burden
substantially more speech than necessary to further those
interests.”
Turner Broadcasting System, Inc. v.
FCC,
520 U.
S. 180, 189 (1997) (citing
O’Brien,
supra, at
377).
The Government is wrong that the only thing
actually at issue in this litigation is conduct, and therefore
wrong to argue that
O’Brien provides the correct standard
of review.[
Footnote 5]
O’Brien does not provide the applicable standard for
reviewing a content-based regulation of speech, see
R. A. V. v.
St. Paul,
505 U. S. 377, 385–386
(1992);
Texas v.
Johnson,
491 U. S. 397, 403,
406–407 (1989), and §2339B regulates speech on the basis of its
content. Plaintiffs want to speak to the PKK and the LTTE, and
whether they may do so under §2339B depends on what they say. If
plaintiffs’ speech to those groups imparts a “specific skill” or
communicates advice derived from “specialized knowledge”—for
example, training on the use of international law or advice on
petitioning the United Nations—then it is barred. See Brief for
Government 33–34. On the other hand, plaintiffs’ speech is not
barred if it imparts only general or unspecialized knowledge. See
id., at 32.
The Government argues that §2339B should
nonetheless receive intermediate scrutiny because it
generally functions as a regulation of conduct. That
argument runs headlong into a number of our precedents, most
prominently
Cohen v.
California,
403 U. S. 15 (1971).
Cohen also involved a generally applicable regulation of
conduct, barring breaches of the peace. See
id., at 16.
But when Cohen was convicted for wearing a jacket bearing an
epithet, we did not apply
O’Brien. See 403 U. S., at 16,
18. Instead, we recognized that the generally applicable law was
directed at Cohen because of what his speech communicated—he
violated the breach of the peace statute because of the offensive
content of his particular message. We accordingly applied more
rigorous scrutiny and reversed his conviction. See
id., at
18–19, 26.
This suit falls into the same category. The
law here may be described as directed at conduct, as the law in
Cohen was directed at breaches of the peace, but as
applied to plaintiffs the conduct triggering coverage under the
statute consists of communicating a message. As we explained in
Texas v.
Johnson: “If the [Government’s]
regulation is not related to expression, then the less stringent
standard we announced in
United States v.
O’Brien
for regulations of noncommunicative conduct controls. If it is,
then we are outside of
O’Brien’s test, and we must [apply]
a more demanding standard.” 491 U. S., at 403 (citation
omitted).
B
The First Amendment issue before
us is more refined than either plaintiffs or the Government would
have it. It is not whether the Government may prohibit pure
political speech, or may prohibit material support in the form of
conduct. It is instead whether the Government may prohibit what
plaintiffs want to do—provide material support to the PKK and LTTE
in the form of speech.
Everyone agrees that the
Government’s interest in combating terrorism is an urgent objective
of the highest order. See Brief for Plaintiffs 51. Plaintiffs’
complaint is that the ban on material support, applied to what they
wish to do, is not “necessary to further that interest.”
Ibid. The objective of combating terrorism does not
justify prohibiting their speech, plaintiffs argue, because their
support will advance only the legitimate activities of the
designated terrorist organizations, not their terrorism.
Id., at 51–52.
Whether foreign terrorist organizations
meaningfully segregate support of their legitimate activities from
support of terrorism is an empirical question. When it enacted
§2339B in 1996, Congress made specific findings regarding the
serious threat posed by international terrorism. See AEDPA
§§301(a)(1)–(7), 110 Stat. 1247, note following 18 U. S. C.
§2339B (Findings and Purpose). One of those findings explicitly
rejects plaintiffs’ contention that their support would not further
the terrorist activities of the PKK and LTTE: “[F]oreign
organizations that engage in terrorist activity are so tainted by
their criminal conduct that
any contribution to such an
organization facilitates that conduct.” §301(a)(7) (emphasis
added).
Plaintiffs argue that the reference to “any
contribution” in this finding meant only monetary support. There is
no reason to read the finding to be so limited, particularly
because Congress expressly prohibited so much more than monetary
support in §2339B. Congress’s use of the term “contribution” is
best read to reflect a determination that any form of material
support furnished “to” a foreign terrorist organization should be
barred, which is precisely what the material-support statute does.
Indeed, when Congress enacted §2339B, Congress simultaneously
removed an exception that had existed in §2339A(a) (1994 ed.) for
the provision of material support in the form of “humanitarian
assistance to persons not directly involved in” terrorist activity.
AEDPA §323, 110 Stat. 1255; 205 F. 3d, at 1136. That repeal
demonstrates that Congress considered and rejected the view that
ostensibly peaceful aid would have no harmful effects.
We are convinced that Congress was justified
in rejecting that view. The PKK and the LTTE are deadly groups.
“The PKK’s insurgency has claimed more than 22,000 lives.”
Declaration of Kenneth R. McKune, App. 128, ¶5. The LTTE has
engaged in extensive suicide bombings and political assassinations,
including killings of the Sri Lankan President, Security Minister,
and Deputy Defense Minister.
Id., at 130–132; Brief for
Government 6–7. “On January 31, 1996, the LTTE exploded a truck
bomb filled with an estimated 1,000 pounds of explosives at the
Central Bank in Colombo, killing 100 people and injuring more than
1,400. This bombing was the most deadly terrorist incident in the
world in 1996.” McKune Affidavit, App. 131, ¶6.h. It is not
difficult to conclude as Congress did that the “tain[t]” of such
violent activities is so great that working in coordination with or
at the command of the PKK and LTTE serves to legitimize and further
their terrorist means. AEDPA §301(a)(7), 110 Stat. 1247.
Material support meant to “promot[e]
peaceable, lawful conduct,” Brief for Plaintiffs 51, can further
terrorism by foreign groups in multiple ways. “Material support” is
a valuable resource by definition. Such support frees up other
resources within the organization that may be put to violent ends.
It also importantly helps lend legitimacy to foreign terrorist
groups—legitimacy that makes it easier for those groups to persist,
to recruit members, and to raise funds—all of which facilitate more
terrorist attacks. “Terrorist organizations do not maintain
organizational ‘firewalls’ that would prevent or deter . .
. sharing and commingling of support and benefits.” McKune
Affidavit, App. 135, ¶11. “[I]nvestigators have revealed how
terrorist groups systematically conceal their activities behind
charitable, social, and political fronts.” M. Levitt, Hamas:
Politics, Charity, and Terrorism in the Service of Jihad 2–3
(2006). “Indeed, some designated foreign terrorist organizations
use social and political components to recruit personnel to carry
out terrorist operations, and to provide support to criminal
terrorists and their families in aid of such operations.” McKune
Affidavit, App. 135, ¶11; Levitt,
supra, at 2 (“Muddying
the waters between its political activism, good works, and
terrorist attacks, Hamas is able to use its overt political and
charitable organizations as a financial and logistical support
network for its terrorist operations”).
Money is fungible, and “[w]hen foreign
terrorist organizations that have a dual structure raise funds,
they highlight the civilian and humanitarian ends to which such
moneys could be put.” McKune Affidavit, App. 134, ¶9. But “there is
reason to believe that foreign terrorist organizations do not
maintain legitimate
financial firewalls between those
funds raised for civil, nonviolent activities, and those ultimately
used to support violent, terrorist operations.”
Id., at
135, ¶12. Thus, “[f]unds raised ostensibly for charitable purposes
have in the past been redirected by some terrorist groups to fund
the purchase of arms and explosives.”
Id., at 134, ¶10.
See also Brief for Anti-Defamation League as
Amicus Curiae
19–29 (describing fundraising activities by the PKK, LTTE, and
Hamas);
Regan v.
Wald,
468 U. S. 222, 243
(1984) (upholding President’s decision to impose travel ban to Cuba
“to curtail the flow of hard currency to Cuba—currency that could
then be used in support of Cuban adventurism”). There is evidence
that the PKK and the LTTE, in particular, have not “respected the
line between humanitarian and violent activities.” McKune
Affidavit, App. 135, ¶13 (discussing PKK); see
id., at 134
(LTTE).
The dissent argues that there is “no natural
stopping place” for the proposition that aiding a foreign terrorist
organization’s lawful activity promotes the terrorist organization
as a whole.
Post, at 10. But Congress has settled on just
such a natural stopping place: The statute reaches only material
support coordinated with or under the direction of a designated
foreign terrorist organization. Independent advocacy that might be
viewed as promoting the group’s legitimacy is not covered. See
supra, at 18–21.[
Footnote
6]
Providing foreign terrorist groups with
material support in any form also furthers terrorism by straining
the United States’ relationships with its allies and undermining
cooperative efforts between nations to prevent terrorist attacks.
We see no reason to question Congress’s finding that “international
cooperation is required for an effective response to terrorism, as
demonstrated by the numerous multilateral conventions in force
providing universal prosecutive jurisdiction over persons involved
in a variety of terrorist acts, including hostage taking, murder of
an internationally protected person, and aircraft piracy and
sabotage.” AEDPA §301(a)(5), 110 Stat. 1247, note following 18 U.
S. C. §2339B (Findings and Purpose). The material-support
statute furthers this international effort by prohibiting aid for
foreign terrorist groups that harm the United States’ partners
abroad: “A number of designated foreign terrorist organizations
have attacked moderate governments with which the United States has
vigorously endeavored to maintain close and friendly relations,”
and those attacks “threaten [the] social, economic and political
stability” of such governments. McKune Affidavit, App. 137, ¶16.
“[O]ther foreign terrorist organizations attack our NATO allies,
thereby implicating important and sensitive multilateral security
arrangements.”
Ibid.
For example, the Republic of Turkey—a fellow
member of NATO—is defending itself against a violent insurgency
waged by the PKK. Brief for Government 6; App. 128. That nation and
our other allies would react sharply to Americans furnishing
material support to foreign groups like the PKK, and would hardly
be mollified by the explanation that the support was meant only to
further those groups’ “legitimate” activities. From Turkey’s
perspective, there likely are no such activities. See 352
F. 3d, at 389 (observing that Turkey prohibits membership in
the PKK and prosecutes those who provide support to that group,
regardless of whether the support is directed to lawful
activities).
C
In analyzing whether it is
possible in practice to distinguish material support for a foreign
terrorist group’s violent activities and its nonviolent activities,
we do not rely exclusively on our own inferences drawn from the
record evidence. We have before us an affidavit stating the
Executive Branch’s conclusion on that question. The State
Department informs us that “[t]he experience and analysis of the U.
S. government agencies charged with combating terrorism strongly
suppor[t]” Congress’s finding that all contributions to foreign
terrorist organizations further their terrorism. McKune Affidavit,
App. 133, ¶8. See
Winter v.
Natural Resources Defense
Council, Inc., 555 U. S. ___, ___ (2008) (slip op., at 14–15)
(looking to similar affidavits to support according weight to
national security claims). In the Executive’s view: “Given the
purposes, organizational structure, and clandestine nature of
foreign terrorist organizations, it is highly likely that any
material support to these organizations will ultimately inure to
the benefit of their criminal, terrorist functions—regardless of
whether such support was ostensibly intended to support
non-violent, non-terrorist activities.” McKune Affidavit, App. 133,
¶8.
That evaluation of the facts by
the Executive, like Congress’s assessment, is entitled to
deference. This litigation implicates sensitive and weighty
interests of national security and foreign affairs. The PKK and the
LTTE have committed terrorist acts against American citizens
abroad, and the material-support statute addresses acute foreign
policy concerns involving relationships with our Nation’s allies.
See
id., at 128–133, 137. We have noted that “neither the
Members of this Court nor most federal judges begin the day with
briefings that may describe new and serious threats to our Nation
and its people.”
Boumediene v.
Bush,
553 U. S. 723, 797
(2008). It is vital in this context “not to substitute . . . our
own evaluation of evidence for a reasonable evaluation by the
Legislative Branch.”
Rostker v.
Goldberg,
453 U. S. 57, 68
(1981). See
Wald, 468 U. S., at 242;
Haig v.
Agee,
453
U. S. 280, 292 (1981).
Our precedents, old and new, make clear that
concerns of national security and foreign relations do not warrant
abdication of the judicial role. We do not defer to the
Government’s reading of the First Amendment, even when such
interests are at stake. We are one with the dissent that the
Government’s “authority and expertise in these matters do not
automatically trump the Court’s own obligation to secure the
protection that the Constitution grants to individuals.”
Post, at 23. But when it comes to collecting evidence and
drawing factual inferences in this area, “the lack of competence on
the part of the courts is marked,”
Rostker,
supra, at 65, and respect for the Government’s conclusions
is appropriate.
One reason for that respect is that national
security and foreign policy concerns arise in connection with
efforts to confront evolving threats in an area where information
can be difficult to obtain and the impact of certain conduct
difficult to assess. The dissent slights these real constraints in
demanding hard proof—with “detail,” “specific facts,” and “specific
evidence”—that plaintiffs’ proposed activities will support
terrorist attacks. See
post, at 9, 16, 23. That would be a
dangerous requirement. In this context, conclusions must often be
based on informed judgment rather than concrete evidence, and that
reality affects what we may reasonably insist on from the
Government. The material-support statute is, on its face, a
preventive measure—it criminalizes not terrorist attacks
themselves, but aid that makes the attacks more likely to occur.
The Government, when seeking to prevent imminent harms in the
context of international affairs and national security, is not
required to conclusively link all the pieces in the puzzle before
we grant weight to its empirical conclusions. See
Zemel v.
Rusk, 381 U. S., at 17 (“[B]ecause of the changeable and
explosive nature of contemporary international relations, . . .
Congress . . . must of necessity paint with a brush broader than
that it customarily wields in domestic areas”).
This context is different from that in
decisions like
Cohen. In that case, the application of the
statute turned on the offensiveness of the speech at issue.
Observing that “one man’s vulgarity is another’s lyric,” we
invalidated Cohen’s conviction in part because we concluded that
“governmental officials cannot make principled distinctions in this
area.” 403 U. S., at 25. In this litigation, by contrast, Congress
and the Executive are uniquely positioned to make principled
distinctions between activities that will further terrorist conduct
and undermine United States foreign policy, and those that will
not.
We also find it significant that Congress has
been conscious of its own responsibility to consider how its
actions may implicate constitutional concerns. First, §2339B only
applies to designated foreign terrorist organizations. There is,
and always has been, a limited number of those organizations
designated by the Executive Branch, see,
e.g., 74 Fed.
Reg. 29742 (2009); 62 Fed. Reg. 52650 (1997), and any groups so
designated may seek judicial review of the designation. Second, in
response to the lower courts’ holdings in this litigation, Congress
added clarity to the statute by providing narrowing definitions of
the terms “training,” “personnel,” and “expert advice or
assistance,” as well as an explanation of the knowledge required to
violate §2339B. Third, in effectuating its stated intent not to
abridge First Amendment rights, see §2339B(i), Congress has also
displayed a careful balancing of interests in creating limited
exceptions to the ban on material support. The definition of
material support, for example, excludes medicine and religious
materials. See §2339A(b)(1). In this area perhaps more than any
other, the Legislature’s superior capacity for weighing competing
interests means that “we must be particularly careful not to
substitute our judgment of what is desirable for that of Congress.”
Rostker,
supra, at 68. Finally, and most
importantly, Congress has avoided any restriction on independent
advocacy, or indeed any activities not directed to, coordinated
with, or controlled by foreign terrorist groups.
At bottom, plaintiffs simply disagree with the
considered judgment of Congress and the Executive that providing
material support to a designated foreign terrorist
organization—even seemingly benign support—bolsters the terrorist
activities of that organization. That judgment, however, is
entitled to significant weight, and we have persuasive evidence
before us to sustain it. Given the sensitive interests in national
security and foreign affairs at stake, the political branches have
adequately substantiated their determination that, to serve the
Government’s interest in preventing terrorism, it was necessary to
prohibit providing material support in the form of training, expert
advice, personnel, and services to foreign terrorist groups, even
if the supporters meant to promote only the groups’ nonviolent
ends.
We turn to the particular speech plaintiffs
propose to undertake. First, plaintiffs propose to “train members
of [the] PKK on how to use humanitarian and international law to
peacefully resolve disputes.” 552 F. 3d, at 921, n. 1.
Congress can, consistent with the First Amendment, prohibit this
direct training. It is wholly foreseeable that the PKK could use
the “specific skill[s]” that plaintiffs propose to impart,
§2339A(b)(2), as part of a broader strategy to promote terrorism.
The PKK could, for example, pursue peaceful negotiation as a means
of buying time to recover from short-term setbacks, lulling
opponents into complacency, and ultimately preparing for renewed
attacks. See generally A. Marcus, Blood and Belief: The PKK and the
Kurdish Fight for Independence 286–295 (2007) (describing the PKK’s
suspension of armed struggle and subsequent return to violence). A
foreign terrorist organization introduced to the structures of the
international legal system might use the information to threaten,
manipulate, and disrupt. This possibility is real, not remote.
Second, plaintiffs propose to “teach PKK
members how to petition various representative bodies such as the
United Nations for relief.” 552 F. 3d, at 921, n. 1. The
Government acts within First Amendment strictures in banning this
proposed speech because it teaches the organization how to acquire
“relief,” which plaintiffs never define with any specificity, and
which could readily include monetary aid. See Brief for Plaintiffs
10–11, 16–17, n. 10; App. 58–59, 80–81. Indeed, earlier in this
litigation, plaintiffs sought to teach the LTTE “to present claims
for tsunami-related aid to mediators and international bodies,” 552
F. 3d, at 921, n. 1, which naturally included monetary
relief. Money is fungible,
supra, at 26, and Congress
logically concluded that money a terrorist group such as the PKK
obtains using the techniques plaintiffs propose to teach could be
redirected to funding the group’s violent activities.
Finally, plaintiffs propose to “engage in
political advocacy on behalf of Kurds who live in Turkey,” and
“engage in political advocacy on behalf of Tamils who live in Sri
Lanka.” 552 F. 3d, at 921, n. 1. As explained above,
supra, at 19–20, plaintiffs do not specify their expected
level of coordination with the PKK or LTTE or suggest what exactly
their “advocacy” would consist of. Plaintiffs’ proposals are
phrased at such a high level of generality that they cannot prevail
in this preenforcement challenge. See
supra, at 20;
Grange, 552 U. S., at 454;
Zemel, 381 U. S., at
20.
In responding to the foregoing, the dissent
fails to address the real dangers at stake. It instead considers
only the possible benefits of plaintiffs’ proposed activities in
the abstract. See
post, at 13–15. The dissent seems
unwilling to entertain the prospect that training and advising a
designated foreign terrorist organization on how to take advantage
of international entities might benefit that organization in a way
that facilitates its terrorist activities. In the dissent’s world,
such training is all to the good. Congress and the Executive,
however, have concluded that we live in a different world: one in
which the designated foreign terrorist organizations “are so
tainted by their criminal conduct that any contribution to such an
organization facilitates that conduct.” AEDPA §301(a)(7). One in
which, for example, “the United Nations High Commissioner for
Refugees was forced to close a Kurdish refugee camp in northern
Iraq because the camp had come under the control of the PKK, and
the PKK had failed to respect its ‘neutral and humanitarian
nature.’ ” McKune Affidavit, App. 135–136, ¶13. Training and
advice on how to work with the United Nations could readily have
helped the PKK in its efforts to use the United Nations camp as a
base for terrorist activities.
If only good can come from training our
adversaries in international dispute resolution, presumably it
would have been unconstitutional to prevent American citizens from
training the Japanese Government on using international
organizations and mechanisms to resolve disputes during World War
II. It would, under the dissent’s reasoning, have been contrary to
our commitment to resolving disputes through “ ‘deliberative
forces,’ ”
post, at 13 (quoting
Whitney v.
California,
274 U. S. 357, 375
(1927) (Brandeis, J., concurring)), for Congress to conclude that
assisting Japan on that front might facilitate its war effort more
generally. That view is not one the First Amendment requires us to
embrace.
All this is not to say that any future
applications of the material-support statute to speech or advocacy
will survive First Amendment scrutiny. It is also not to say that
any other statute relating to speech and terrorism would satisfy
the First Amendment. In particular, we in no way suggest that a
regulation of independent speech would pass constitutional muster,
even if the Government were to show that such speech benefits
foreign terrorist organizations. We also do not suggest that
Congress could extend the same prohibition on material support at
issue here to domestic organizations. We simply hold that, in
prohibiting the particular forms of support that plaintiffs seek to
provide to foreign terrorist groups, §2339B does not violate the
freedom of speech.
VI
Plaintiffs’ final claim is that
the material-support statute violates their freedom of association
under the First Amendment. Plaintiffs argue that the statute
criminalizes the mere fact of their associating with the PKK and
the LTTE, thereby running afoul of decisions like
De Jonge
v.
Oregon,
299 U. S. 353 (1937),
and cases in which we have overturned sanctions for joining the
Communist Party, see,
e.g., Keyishian v.
Board of Regents of Univ. of State of N. Y.,
385 U. S. 589 (1967);
United States v.
Robel,
389 U. S. 258
(1967).
The Court of Appeals correctly
rejected this claim because the statute does not penalize mere
association with a foreign terrorist organization. As the Ninth
Circuit put it: “The statute does not prohibit being a member of
one of the designated groups or vigorously promoting and supporting
the political goals of the group. . . . What [§2339B] prohibits is
the act of giving material support . . . .” 205 F. 3d, at
1133. Plaintiffs want to do the latter. Our decisions scrutinizing
penalties on simple association or assembly are therefore
inapposite. See,
e.g., Robel,
supra, at
262 (“It is precisely because th[e] statute sweeps indiscriminately
across all types of association with Communist-action groups,
without regard to the quality and degree of membership, that it
runs afoul of the First Amendment”);
De Jonge,
supra, at 362.
Plaintiffs also argue that the
material-support statute burdens their freedom of association
because it prevents them from providing support to designated
foreign terrorist organizations, but not to other groups. See Brief
for Plaintiffs 56; Reply Brief for Plaintiffs 37–38. Any burden on
plaintiffs’ freedom of association in this regard is justified for
the same reasons that we have denied plaintiffs’ free speech
challenge. It would be strange if the Constitution permitted
Congress to prohibit certain forms of speech that constitute
material support, but did not permit Congress to prohibit that
support only to particularly dangerous and lawless foreign
organizations. Congress is not required to ban material support to
every group or none at all.
* * *
The Preamble to the Constitution
proclaims that the people of the United States ordained and
established that charter of government in part to “provide for the
common defence.” As Madison explained, “[s]ecurity against foreign
danger is . . . an avowed and essential object of the American
Union.” The Federalist No. 41, p. 269 (J. Cooke ed. 1961). We hold
that, in regulating the particular forms of support that plaintiffs
seek to provide to foreign terrorist organizations, Congress has
pursued that objective consistent with the limitations of the First
and Fifth Amendments.
The judgment of the United States
Court of Appeals for the Ninth Circuit is affirmed in part and
reversed in part, and the cases are remanded for further
proceedings consistent with this opinion.
It is so ordered.
Footnote 1
In full, 18 U. S. C. §2339B(a)(1)
provides: “Unlawful conduct.—Whoever knowingly provides material
support or resources to a foreign terrorist organization, or
attempts or conspires to do so, shall be fined under this title or
imprisoned not more than 15 years, or both, and, if the death of
any person results, shall be imprisoned for any term of years or
for life. To violate this paragraph, a person must have knowledge
that the organization is a designated terrorist organization . . .,
that the organization has engaged or engages in terrorist activity
. . ., or that the organization has engaged or engages in terrorism
. . . .” The terms “terrorist activity” and “terrorism” are defined
in 8 U. S. C. §1182(a)(3)(B)(iii), and 22 U. S. C.
§2656f(d)(2), respectively.
Footnote 2
At the time plaintiffs first filed suit, 18
U. S. C. §2339B(a) (2000 ed.) provided: “Whoever, within the
United States or subject to the jurisdiction of the United States,
knowingly provides material support or resources to a foreign
terrorist organization, or attempts or conspires to do so, shall be
fined under this title or imprisoned not more than 10 years, or
both.” See
Humanitarian Law Project v.
Reno, 9
F. Supp. 2d 1205, 1207 (CD Cal. 1998). And 18 U. S. C.
§2339A(b) (2000 ed.) defined “material support or resources” to
mean “currency or other financial securities, financial services,
lodging, training, safehouses, false documentation or
identification, communications equipment, facilities, weapons,
lethal substances, explosives, personnel, transportation, and other
physical assets, except medicine or religious materials.”
Footnote 3
The dissent would interpret the statute along
the same lines as the plaintiffs, to prohibit speech and
association “only when the defendant knows or intends that those
activities will assist the organization’s unlawful terrorist
actions.”
Post, at 17 (opinion of Breyer, J.). According
to the dissent, this interpretation is “fairly possible” and
adopting it would avoid constitutional concerns.
Ibid.
(internal quotation marks omitted). The dissent’s interpretation of
§2339B fails for essentially the same reasons as plaintiffs’.
Congress explained what “knowingly” means in §2339B, and it did not
choose the dissent’s interpretation of that term. In fact, the
dissent proposes a mental-state requirement indistinguishable from
the one Congress adopted in §§2339A and 2339C, even though Congress
used markedly different language in §2339B.
Footnote 4
The dissent also analyzes the statute as if
it prohibited “[p]eaceful political advocacy” or “pure speech and
association,” without more.
Post, at 9, 17. Section 2339B
does not do that, and we do not address the constitutionality of
any such prohibitions. The dissent’s claim that our decision is
inconsistent with this Court’s cases analyzing those sorts of
restrictions,
post, at 11–12, is accordingly
unfounded.
Footnote 5
The Government suggests in passing that, to
the extent plaintiffs’ activities constitute speech, that speech is
wholly unprotected by the First Amendment. The Government briefly
analogizes speech coordinated with foreign terrorist organizations
to speech effecting a crime, like the words that constitute a
conspiracy. Brief for Government 46; Reply Brief for Government
31–32, and n. 8. See,
e.g., Giboney v.
Empire
Storage & Ice Co.,
336 U. S. 490, 498, 502
(1949). We do not consider any such argument because the Government
does not develop it: The Government’s submission is that applying
§2339B to plaintiffs triggers intermediate First Amendment
scrutiny—not that it triggers no First Amendment scrutiny at
all.
Footnote 6
The dissent also contends that the particular
sort of material support plaintiffs seek to provide cannot be
diverted to terrorist activities, in the same direct way as funds
or goods.
Post, at 8–9. This contention misses the point.
Both common sense and the evidence submitted by the Government make
clear that material support of a terrorist group’s lawful
activities facilitates the group’s ability to attract “funds,”
“financing,” and “goods” that will further its terrorist acts. See
McKune Affidavit, App. 134–136.
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