Plaintiffs filed suit to prevent the enforcement of the criminal statute outlawing “providing material support” to terrorist organization. The United States District Court for the Central District of California heard the case twice and entered an injunction in relation to portions of the statute as unconstitutionally vague. The Ninth Circuit Court of Appeals, who also heard the case twice, affirmed. The United States Supreme Court granted certiorari and upheld the statue as constitutional.

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.” 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.

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.” 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. 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.” . . . In 1997, the Secretary of State designated 30 groups as foreign terrorist organizations. 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. The LTTE is an organization founded in 1976 for the purpose of creating an independent Tamil state in Sri Lanka. The District Court in this action found that the PKK and the LTTE engage in political and humanitarian activities.

The Government has presented evidence that both groups have also committed numerous terrorist attacks, some of which have harmed American citizens . . .

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. [During the 12 years of litigation regarding this issue, Congress modified the statute in order to address vagueness concerns and make the statute more specific.]

[Vagueness Argument]

. . . 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.”

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.” 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.

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 . . . 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.”

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).

[First Amendment Argument]

. . . 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.”

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.” Section 2339B also “does not prevent [plaintiffs] from becoming members of the PKK and LTTE or impose any sanction on them for doing so.” 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.

. . . 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.” 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.

Questions:-

1. The plaintiffs make two constitutional arguments regarding the validity of the statute. Identify these two arguments and the constitutional amendments involved.
2. Summarize the Supreme Court’s ruling on the constitutionality of the statute.
3. Do you believe the statute infringes on the plaintiff’s constitutional rights? Why or why not?