561 U.S. 1 (2010), 08-1498, Holder v. Humanitarian Law Project

Docket Nº:08-1498, 09-89.
Citation:561 U.S. 1, 130 S.Ct. 2705, 177 L.Ed.2d 355, 78 U.S.L.W. 4625
Opinion Judge:Roberts, Chief Justice
Party Name:Eric H. HOLDER, Jr., Attorney General, et al., Petitioners, v. HUMANITARIAN LAW PROJECT et al. Humanitarian Law Project, et al., Petitioners, v. Eric H. Holder, Jr., Attorney General, et al.
Attorney:David D. Cole, for petitioners in 09-89. Solicitor General Elena Kagan, for petitioners in 08-1498. Elena Kagan, Solicitor General, Counsel of Record, Department of Justice, Washington, D.C., for respondents. David D. Cole, c/o Georgetown Univ. Law Center, Washington, DC, Counsel of Record for Re...
Judge Panel:ROBERTS, C. J., delivered the opinion of the Court, in which STEVENS, SCALIA, KENNEDY, THOMAS, and ALITO, JJ., joined. BREYER, J., filed a dissenting opinion, in which GINSBURG and SOTOMAYOR, JJ., joined. Justice BREYER, with whom Justices G1NSBURG and SOTOMAYOR join, dissenting.
Case Date:June 21, 2010
Court:United States Supreme Court

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561 U.S. 1 (2010)

130 S.Ct. 2705, 177 L.Ed.2d 355, 78 U.S.L.W. 4625

Eric H. HOLDER, Jr., Attorney General, et al., Petitioners,



Humanitarian Law Project, et al., Petitioners,


Eric H. Holder, Jr., Attorney General, et al.

Nos. 08-1498, 09-89.

United States Supreme Court

June 21, 2010

Argued February 23, 2010


[177 L.Ed.2d 363] [130 S.Ct. 2707] Syllabus [*]

It is a federal crime to "knowingly provid[e] material support or resources to a foreign terrorist organization." 18 U.S.C. §2339B(a)(1). The authority to designate an entity a "foreign terrorist organization" rests with the Secretary of State, and is subject to judicial review. [130 S.Ct. 2708] "[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). Over the years, §2339B and the definition of "material support or resources" have been amended, inter alia, to clarify that a violation requires knowledge of the foreign group's designation as a terrorist organization or its commission of terrorist acts, §2339B(a)(1); and to define the terms "training, " §2339A(b)(2), "expert advice or assistance, " §2339A(b)(3), and "personnel, " §2339B(h).

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Among the entities the Secretary of State has designated "foreign terrorist organization[s]" are the Partiya Karkeran Kurdistan (PKK) and the Liberation Tigers of Tamil Eelam (LTTE), which aim to establish independent states for, respectively, Kurds in Turkey and Tamils in Sri Lanka. Although both groups engage in political and humanitarian activities, each has also committed numerous terrorist attacks, some of which have harmed American citizens. Claiming they wish to support those groups' lawful, nonviolent activities, two U.S. citizens and six domestic organizations (hereinafter plaintiffs) initiated this constitutional challenge to the material-support statute. The litigation has had a complicated 12-year history. Ultimately, the District Court partially enjoined the enforcement of the material-support statute against plaintiffs. After the Ninth Circuit affirmed, plaintiffs and the Government cross-petitioned for certiorari. The Court granted both petitions.

As the litigation now stands, plaintiffs challenge §2339B's prohibition on providing four types of material support-"training, " "expert advice or assistance, " "service, " and "personnel [177 L.Ed.2d 364] " --asserting violations of the Fifth Amendment's Due Process Clause on the ground that the statutory terms are impermissibly vague, and violations of their First Amendment rights to freedom of speech and association. They claim that §2339B is invalid to the extent it prohibits them from engaging in certain specified activities, including training PKK members to use international law to resolve disputes peacefully; teaching PKK members to petition the United Nations and other representative bodies for relief; and engaging in political advocacy on behalf of Kurds living in Turkey and Tamils living in Sri Lanka.


The material-support statute, §2339B, is constitutional as applied to the particular forms of support that plaintiffs seek to provide to foreign terrorist organizations. Pp. 2715-2731, 177 L.Ed.2d, at 371-388.

(a) This preenforcement challenge to §2339B is a justiciable Article III case or controversy. 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, 99 S.Ct. 2301, 60 L.Ed.2d 895. P. 2717, 177 L.Ed.2d, at 372.

(b) The Court cannot avoid the constitutional issues in this litigation by accepting plaintiffs' argument that the material-support statute, when applied to speech, should be interpreted to require proof that a defendant intended to further a foreign terrorist organization's illegal activities. That reading is inconsistent with §[130 S.Ct. 2709] § 2339B's text, which prohibits "knowingly" providing material support and demonstrates that Congress chose knowledge about the organization's connection to terrorism, not specific intent to further its terrorist activities, as the

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necessary mental state for a violation. Plaintiffs' reading is also untenable in light of the sections immediately surrounding §2339B, which-unlike §2339B-do refer to intent to further terrorist activity. See §§2339A(a), 2339C(a)(1). Finally, there is no textual basis for plaintiffs' argument that the same language in §2339B should be read to require specific intent with regard to speech, but not with regard to other forms of material support. Pp. 2717 - 2718, 177 L.Ed.2d, at 373-374.

(c) As applied to plaintiffs, the material-support statute is not unconstitutionally vague. The Ninth Circuit improperly merged plaintiffs' vagueness challenge with their First Amendment claims, holding that "training, " "service, " and a portion of "expert advice or assistance" were impermissibly vague because they applied to protected speech-regardless of whether those applications were clear. The Court of Appeals also 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 v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495, 102 S.Ct. 1186, 71 L.Ed.2d 362.

The material-support statute, in its application to plaintiffs, "provide[s] a person of ordinary intelligence fair notice of what is prohibited." United States v. Williams, 553 U.S. 285, 304, 128 S.Ct. 1830, 170 L.Ed.2d 650. The statutory terms at issue here—"training," "expert advice or assistance," "service," and "personnel"—are quite different from the sorts of terms, like " 'annoying'" and " 'indecent,' " that the Court has struck down for requiring "wholly subjective judgments without statutory definitions [177 L.Ed.2d 365], narrowing context, or settled legal meanings." Id., at 306, 128 S.Ct. 1830. Congress has increased the clarity of § 2339B's terms by adding narrowing definitions, and § 2339B's knowledge requirement further reduces any potential for vagueness, see Hill v. Colorado, 530 U.S. 703, 732, 120 S.Ct. 2480,147 L.Ed.2d 597.

Although the statute may not be clear in every application, the dispositive point is that its terms are clear in their application to plaintiffs' proposed conduct. Most of the activities in which plaintiffs seek to engage readily fall within the scope of "training" and "expert advice or assistance." In fact, plaintiffs themselves have repeatedly used those terms to describe their own proposed activities. Plaintiffs' resort to hypothetical situations testing the limits of "training" and "expert advice or assistance" is beside the point because this litigation does not concern such situations. See Scales v. United States, 367 U.S. 203, 223, 81 S.Ct. 1469, 6 L.Ed.2d 782. Gentile v. State Bar of Nev., 501 U.S. 1030, 1049-1051, 111 S.Ct. 2720, 115 L.Ed.2d 888, distinguished. Plaintiffs' further contention, that the statute is vague in its application to the political advocacy they wish to undertake, runs afoul of § 2339B(h), which makes clear that "personnel" does not cover advocacy by those acting entirely independently of a foreign terrorist organization, and the ordinary meaning of "service, " which refers to concerted

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activity, not independent advocacy. Context confirms that meaning: Independently advocating for a cause is different from the prohibited act of providing a service "to a foreign terrorist organization." §2339B(a)(1).

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 [130 S.Ct. 2710] 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." Because plaintiffs have not provided any specific articulation of the degree to which they seek to coordinate their advocacy with the PKK and the LTTE, however, they cannot prevail in their preenforcement challenge. See Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 454, 128 S.Ct. 1184, 170 L.Ed.2d 151. Pp. 2718-2722, 177 L.Ed.2d, at 374-379.

(d) As applied to plaintiffs, the material-support statute does not violate the freedom of speech guaranteed by the First Amendment. Pp. 2722 – 2730, 177 L.Ed.2d, at 379-387.

(1) Both plaintiffs and the Government take extreme positions on this question. Plaintiffs claim that Congress has banned their pure political speech. That claim is unfounded because, under the material-support statute, they may say anything they wish on any topic. Section 2339B does not prohibit independent advocacy or membership in the PKK and LTTE. Rather, Congress has prohibited "material support, " which most often does not take the form of speech. 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. On the other hand, the [177 L.Ed.2d 366] Government errs in arguing that the only thing actually at issue here is conduct, not...

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