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Nos. 08-1498 and 09-89


In the Supreme Court of the United States







Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217


In the Supreme Court of the United States


No. 08-1498




No. 09-89








A. The Court Of Appeals Confused The Vagueness And Overbreadth Doctrines

Petitioners make virtually no effort to defend the rationale on which the court of appeals rested its deci sion-namely, that the challenged terms are vague because they can "be read to encompass speech and advo cacy protected by the First Amendment." Pet. App. 22a; see id. at 24a, 25a. That rationale conflates two distinct constitutional doctrines: vagueness and overbreadth. Gov't Br. 42-43; see Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497 n.9 (1982) (Village of Hoffman Estates). Vagueness doc trine asks whether, for purposes of the Fifth Amend ment, the contested terms in the material-support stat ute have a clear meaning to an ordinary person. Overbreadth doctrine asks whether, for purposes of the First Amendment, those terms reach an impermissible amount of constitutionally protected expression. The court below wrongly collapsed those separate inquiries.

The single sentence that petitioners devote to de fending the court of appeals' reasoning asserts that this Court has "link[ed] * * * the doctrines when vague statutes implicate speech." Reply Br. 19. But this Court has linked the doctrines when a plaintiff challenges a statute as both facially vague and overbroad-i.e., when a plaintiff "argue[s] that a statute is overbroad because it is unclear whether it regulates a substantial amount of protected speech." United States v. Williams, 128 S. Ct. 1830, 1845 (2008); see Village of Hoffman Estates, 455 U.S. at 489, 494-495, 498 & n.6; Cox v. Louisiana, 379 U.S. 536, 551-552 (1965). That linkage cannot explain the confusion in the court of appeals' analysis, because the court held that "[t]he issue of a facial vagueness chal lenge" was not presented. Pet. App. 22a n.6. With that issue not in play, the court should have assessed whether the material-support statute is vague as applied to petitioners' proposed conduct, and then assessed whether the statute is overbroad on its face. In any event, the court did not find, nor could it have found, that the vagueness it saw in the statute rendered the statute substantially overbroad. As petitioners' passing defense of the rationale of the decision below implicitly suggests, that rationale conflicts with this Court's prece dents. Reversal is warranted for that reason.

B. The Statute's Terms Are Sufficiently Clear To Provide Notice To Persons Of Ordinary Intelligence

Implicitly conceding the weakness of the court of ap peals' core rationale, petitioners ask for affirmance on a ground barely noted and still less defended in the deci sion below: that the material-support statute's terms do not provide sufficient notice to ordinary persons of what conduct violates the law. See Reply Br. 4-19. But that basis for the decision is no better than the one on which the court of appeals principally relied. The terms of the material-support statute, when given their ordinary meaning, clearly cover petitioners' proposed activities: there is nothing vague and nothing uncertain about how the statute applies to the assistance that petitioners wish to give terrorist organizations. As a result, even though petitioners raise only an as-applied challenge to the statute, they say almost nothing about their own proposed conduct. They instead level against the stat ute a number of facial attacks, which are irrelevant to their claim and, in any event, mistaken on the merits. Before turning to the clarity of the statute's terms as applied to petitioners' conduct, we address three errors that infect all of their analysis.

First, petitioners continue to seek a heightened stan dard of review, citing (Reply Br. 5) this Court's deci sions in Village of Hoffman Estates and Smith v. Goguen, 415 U.S. 566 (1974). But neither those cases nor any other case has suggested that a generally appli cable, content-neutral statute regulating conduct is sub ject to a special, heightened vagueness standard when ever any of its applications potentially reaches expres sive activity. Goguen involved a flag-desecration statute whose terms suggested a governmental interest in sup pressing a particular message. Id. at 575-576; Texas v. Johnson, 491 U.S. 397, 411 (1989). And in Village of Hoffman Estates, the Court did not apply a heightened First Amendment standard of review; rather, it held that the ordinance at issue received at most the scrutiny appropriate for criminal laws regulating conduct, not withstanding that the entity subject to the law alleged that the law incidentally restricted its expression. 455 U.S. at 496, 499-500.

Even assuming, however, that some heightened stan dard might otherwise apply, "the Court has recognized that a scienter requirement may mitigate" any need for greater legislative precision. Village of Hoffman Es tates, 455 U.S. at 499. Petitioners argue (Reply Br. 6) that the material-support statute's express scienter re quirement does not qualify under this well-settled law, because the defendant does not have to know that his aid qualifies as "material support or resources," 18 U.S.C. 2339A(b)(1); he only has to know that his aid is directed toward a "foreign terrorist organization," 18 U.S.C. 2339B(a)(1). But petitioners cite no precedent suggest ing that scienter must go to each and every element of the offense. Here, Congress mitigated doubt about the scope of the statute by requiring scienter for a particu larly important element, ensuring that the statute would extend only to persons who provide aid to groups that they know to be terrorist. That requirement provides substantial "notice to the complainant that his conduct is proscribed," Village of Hoffman Estates, 455 U.S. at 499, and thus forecloses any need for a heightened stan dard of review.

Second, petitioners suggest (Reply Br. 18) that their vagueness challenge is facial rather than as-applied. That suggestion, however, conflicts with the history of this litigation. The court of appeals held that petitioners had presented only an as-applied, and not a facial, vagueness challenge. Pet. App. 22a n.6. Petitioners agreed with that holding at the certiorari stage. See Br. in Opp. 17; Cross-Pet. 3 n.2 ("[R]espondents seek to en join these [challenged] provisions only with respect to their proposed speech activities."). In their opening brief to this Court, petitioners stressed that they chal lenge the vagueness of the statute only as applied to their particular conduct. See Pet. Br. 4, 25. Petitioners now attempt (Reply Br. 18) to cast their vagueness chal lenge as facial by pointing to their assertion of an overbreadth challenge. But petitioners' overbreadth challenge is necessarily facial; there is no such thing as an as-applied overbreadth challenge. That says nothing about the nature of their vagueness challenge, which they have repeatedly presented as as-applied. And even assuming that petitioners had presented a facial vague ness claim, it would fail for the same reasons as their overbreadth claim: the material-support statute is clear in the vast majority of its intended applications. See p. 26, infra; see also Hill v. Colorado, 530 U.S. 703, 733 (2000).

Third, petitioners attempt to dismiss (Reply Br. 6-7) their own use, to describe their own conduct, of the very words and phrases that they claim an ordinary person could not understand. They maintain that "[t]he fact that a term is used as a general descriptive matter in the English language" does not mean that it is "a permissi ble basis for criminalizing speech." Id. at 6. To the con trary, that is precisely what it means for vagueness pur poses (putting aside any independent First Amendment argument). If the challenged terms were clear enough to petitioners "as a general descriptive matter in the English language," then a person of ordinary intelli gence would understand the statute's use of those terms. See Zicarelli v. New Jersey State Comm'n of Investiga tion, 406 U.S. 472, 476-477 (1972) ("The term 'respon sive' in ordinary English usage has a well-recognized meaning. It is not * * * 'so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.'") (quoting Connally v. Gen eral Constr. Co., 269 U.S. 385, 391 (1926)). Petitioners' own pleadings betray them; in choosing, to describe their proposed conduct, the selfsame language Congress chose to describe the prohibited conduct, petitioners acknowledge that the statute is not vague.

1. Instructing the PKK and LTTE on how to engage in international political advocacy constitutes "train ing"

a. Petitioners' response is most interesting for what it does not say with respect to the term "training." Peti tioners barely discuss their own proposed activities; and when they do, they cast those activities in the broadest possible terms, such as "teaching people to advocate for peace and human rights" and "human rights instruc tion." Reply Br. 8-9. That is because, if petitioners were to say anything more concrete about their proposed ac tivities, they would trip over the word "training" at ev ery turn. The record reveals that such stumbling is what occurred below: petitioners understood their con duct as "training," and said so. Petitioners' complaint thus repeatedly referred to their proposed activities as "training." See Gov't Br. 21. And at oral argument be fore the en banc court of appeals, their counsel twice referred to the "human rights advocacy training" that petitioners hope to provide. Id. at 26. Notably, petition ers are silent as to why an ordinary person would not share their own ready understanding of the term "train ing" as applied to their activities.

Nor should petitioners' newly generalized descrip tions obscure the nature of their specific conduct. For example, petitioners alleged in their complaint that, in the past, "Judge Fertig and other HLP representatives have provided training to some members of the PKK and other Kurds on how to present their human rights claims before the U.N. and other public-policy making bodies, including the United States Congress." J.A. 58. And in the future, the complaint goes on to say, "[t]he HLP and Judge Fertig would like to * * * advis[e] Kurds and Kurdish groups on recent developments in international human rights law, the procedures for seek ing review by the newly established International Crimi nal Court, peacemaking negotiation skills, and advocacy of the rights of Kurds before the Human Rights Sub commission of the United Nations and legislative bodies throughout the world, including the United States Con gress." J.A. 59.

On any understanding of the difference between "general knowledge" and "specific skill[s]," 18 U.S.C. 2339A(b)(2), petitioners want to impart the latter. They want to instruct the PKK and LTTE on how to appear, lobby, or petition before bodies like Congress, the Inter national Criminal Court, and the Human Rights Sub commission of the United Nations. That activity- methods of engaging national and international bodies as to human rights claims-is not well known to mem bers of the general public, and instruction in it requires education and experience that relatively few members of the public possess. Petitioners do not attempt to argue otherwise. See Reply Br. 7-9. The clarity of the term "training" as defined in the statute and as applied to peti tioners' proposed conduct is fatal to their claim of vague ness.

b. In any event, petitioners' facial attacks on this term of the material-support statute fare no better. The term "training" ordinarily refers to instruction in a spe cialized skill, see Gov't Br. 19-20, and many federal stat utes use the term in that manner, id. at 20 & n.2. Yet petitioners do not point to a single decision holding that "training"-or even any similar term-is vague. Peti tioners respond (Reply Br. 9) that most of those other statutes neither define a criminal offense nor impose a penalty. Cf. 8 U.S.C. 1182(a)(3)(B)(iv)(VI) (denying ad mission to aliens who provide material support, includ ing "training," to terrorists). But absent some evidence to the contrary, a term that is intelligible in other legal settings does not suddenly become unintelligible when employed in the criminal context. Although Congress attached criminal consequences to the provision of "training" to foreign terrorists, that term retains its customary and usual meaning in the material-support statute.

Even if the term "training" were not sufficiently clear standing alone, that would not assist petitioners, because as noted above, Congress elaborated the mean ing of that term by reference to "specific skill[s]." After the court of appeals held in an earlier stage of this litiga tion that the term "training" was vague (notably, be cause it may "encompass[] First Amendment protected activities"), Humanitarian Law Project v. United States Dep't of Justice, 352 F.3d 382, 404 (2003), Congress fur ther defined that term in the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA), Pub. L. No. 108-458, § 6603(c), 118 Stat. 3762, to mean "instruction or teaching designed to impart a specific skill, as op posed to general knowledge." 18 U.S.C. 2339A(b)(2). Congress thereby removed any possible ambiguity in the statute, by further defining "training" to mean only instruction in a specific skill. Cf. Blakely v. Washington, 542 U.S. 296, 326 (2004) (Kennedy, J., dissenting) ("Con stant, constructive discourse between our courts and our legislatures is an integral and admirable part of the con stitutional design."). This Court reviews Congress's enactments for reasonable precision, see Grayned v. City of Rockford, 408 U.S. 104, 110 (1972), and Congress clarified the statute to ensure beyond peradventure that it met this standard.

Petitioners incorrectly contend that "[e]very judge to have ruled on the 'training' prohibition in this case * * * has concluded that it is fatally unclear about what speech is prohibited." Reply Br. 7. In fact, what the courts below principally concluded-albeit under the mistaken label of "vagueness" analysis-is that the material-support statute reaches some protected ex pression. See Pet. App. 22a, 63a. Indeed, the court of appeals specifically held that the statute was imper missibly vague "[e]ven if persons of ordinary intelli gence could discern between the instruction that im parts a 'specific skill,' as opposed to one that imparts 'general knowledge,'" because "the term 'training' could still be read to encompass speech." Id. at 22a. In other words, the court held that the term "training" is vague, even if its statutory definition is not vague according to the well-established constitutional test.

Moreover, Congress's distinction between a specific skill and general knowledge is not itself vague. That distinction is common to the law. Several federal stat utes distinguish between the general and the specific, see Gov't Br. 23, and the Sentencing Guidelines distin guish between generalized and specialized skills, see id. at 22 n.3. Petitioners do not say whether, on their view, each of those provisions would be subject to a potential vagueness challenge. They argue that similar statutes and the Sentencing Guidelines "do[] not separate crimi nal from non-criminal conduct." Reply Br. 9 n.2. But the response seems not to the point, which is that in all contexts (criminal and noncriminal alike) legislators and judges routinely depend on and apply a "general-specific distinction." Id. at 7. Its prevalence in the law, and the apparent ease with which it is applied, belies any conten tion that the distinction is "inescapably subjective." Ibid. After all, the vagueness inquiry turns not on how often Congress has used that distinction in defining criminal offenses, but on whether the distinction be tween imparting specific skills and imparting general knowledge is readily intelligible to the average person. The frequency of the distinction's appearance in the United States Code, as well as in ordinary language, answers that question.1

Petitioners also incorrectly argue that this Court's decision in Pierce v. Underwood, 487 U.S. 552 (1988), "underscores the terms' ambiguity." Reply Br. 8. Pierce concerned a provision of the Equal Access to Jus tice Act (EAJA), 28 U.S.C. 2412(d)(2)(A)(ii), authorizing increased attorney fees for "a special factor, such as the limited availability of qualified attorneys for the pro ceedings involved." In light of that language, the Court held that increased fees were available only for "attor neys having some distinctive knowledge or specialized skill needful for the litigation in question-as opposed to an extraordinary level of the general lawyerly knowl edge and ability useful in all litigation." Pierce, 487 U.S. at 572. Notably, the Court foresaw no difficulty in dis tinguishing between attorneys with specialized skills (like those who practice in the fields of intellectual prop erty or foreign law, see ibid.) and attorneys with more general legal knowledge.

Petitioners contend that "[j]udicial determination of attorney compensation is a far cry from criminalizing speech." Reply Br. 8. Like the courts below, petitioners conflate their substantive challenges under the First Amendment with their vagueness challenge under the Fifth Amendment. Pierce demonstrates that the dis tinction between specialized skills and general knowl edge is capable of clear application to a particular con text; it is a separate question whether the statutory term defined by that distinction, as applied to petition ers' conduct, runs afoul of the First Amendment.2 The former goes to whether a statute is clear, while the lat ter goes to whether a clear statute is otherwise permis sible. For purposes of vagueness doctrine, the critical point is that neither Congress, nor the Sentencing Com mission, nor this Court, nor other courts have struggled to understand or apply the distinction between specific skills and general knowledge in any context. That dis tinction is no more difficult to understand or apply as it appears in the material-support statute.

For the proposition that the distinction between gen eral knowledge and specific skills is "inescapably subjec tive," petitioners continue to rely (Reply Br. 7-8) solely on Gentile v. State Bar, 501 U.S. 1030 (1991). As the government previously explained, that decision is inapposite. See Gov't Br. 23-24. The state ethics rule at issue in Gentile prevented attorneys from "elaborat [ing]" on "the general nature of the claim or defense," 501 U.S. at 1048, and thereby demanded a subjective judgment about how much attorney speech is too much. Nothing of the kind is involved in the material-support statute. The term "training" requires an objective de termination that the defendant's instruction was de signed to impart a specific skill, not generally possessed by the public. Whether members of the public generally possess a skill "is a true-or-false determination, not a subjective judgment." Williams, 128 S. Ct. 1846. To be sure, "it may be difficult in some cases to determine" whether instruction is designed to impart such a skill, but "courts and juries every day pass upon" exactly that type of factual question. Ibid. (quoting American Commc'ns Ass'n v. Douds, 339 U.S. 382, 411 (1950)). And, unlike the rule in Gentile, the material-support statute contains a scienter requirement, which dimin ishes any residual danger that a person might inadver tently train foreign terrorists in specific skills. See 501 U.S. at 1049-1050.3

2. Consulting with the PKK and LTTE on international law, medical care, and economic development consti tutes "expert advice or assistance"

a. Although their vagueness challenge is as-applied, petitioners likewise do not address how application of the term "expert advice or assistance" to their proposed conduct involves any doubt or uncertainty. In the past, "Judge Fertig, acting on behalf of the HLP, * * * has assisted members of the PKK and its political arm, the ERNK, in attempting to resolve peacefully the conflict between the Turkish government and the Kurds." J.A. 58. In the future, Judge Fertig and the HLP want to continue to "assist PKK members at peace conferences and other meetings designed to support a peaceful reso lution of the Turkish conflict." J.A. 59; see Pet. Br. 10. Other petitioners want to aid the LTTE by providing "expert medical advice and assistance," J.A. 60; "expert advice on how to improve the delivery of health care, with a special focus on the area of otolaryngology," J.A. 61; and "expert advice and assistance" "in the fields of politics, law, and economic development," ibid., as well as "information technology," J.A. 62.

It is unsurprising that all of the petitioners describe their proposed activities as "expert" in nature. Interna tional peace negotiators, medical doctors, development economists, and software programmers are commonly thought of as experts. Cf. Abood v. Detroit Bd. of Educ., 431 U.S. 209, 221-222 (1977) (noting that the negotiation of a collective-bargaining agreement may require the services of "expert negotiators"). Even without further explanation, the term "expert" is as ordinary and as readily understood as the vast majority of words found in federal (including criminal) statutes; and that term obviously applies to petitioners' conduct. But Congress removed any doubt about the meaning of that term by defining "expert advice or assistance" as "advice or as sistance derived from scientific, technical or other spe cialized knowledge." 18 U.S.C. 2339A(b)(3). Petitioners do not attempt to argue with any particularity that the types of assistance they enumerate in their complaint do not "derive[] from scientific, technical or other special ized knowledge." Because that definition clearly covers petitioners' proposed activities, their as-applied vague ness challenge must fail.

b. In any event, petitioners cannot demonstrate that the phrase "scientific, technical or other specialized knowledge" is unconstitutionally vague as applied to conduct generally. Petitioners do not directly respond to the government's argument that the terms "scientific" and "technical" have objective and readily understood meanings. Gov't Br. 31 ("[T]he use of terms like 'scien tific' and 'technical' rests on factual determinations- i.e., whether knowledge is specific, practical, and related to a particular branch of science or a profession.") (quot ing Webster's Third New International Dictionary of the English Language 2348 (1993) (Webster's)). Nor do petitioners respond to the government's argument (Br. 30) that, under the principle of ejusdem generis, the term "specialized knowledge" takes it meaning from the preceding terms "scientific" and "technical." Under that commonly employed concept (even if uncommonly used label), an ordinary person would understand the entire phrase to mean knowledge relating to subject matter and based on experiences not commonly possessed or shared by the general public.

Because Congress drew the phrase "scientific, tech nical, or other specialized knowledge" from Federal Rule of Evidence 702, petitioners argue (Reply Br. 10) that the phrase's meaning is apparent only to judges, not ordinary citizens. But in interpreting Rule 702, this Court has looked to the ordinary meaning of the rule's words, see Gov't Br. 29-30, and petitioners do not con tend otherwise. Moreover, even assuming (what is self- evidently not true) that the phrase "scientific, technical or other specialized knowledge" had a determinate meaning only in the legal context, that would not assist petitioners. In assessing the clarity of federal statutes, courts have long looked to whether Congress "employed words or phrases having a technical or other special meaning, * * * or a well-settled common-law meaning, notwithstanding an element of degree in the definition as to which estimates might differ." Connally, 269 U.S. at 391; see Williams, 128 S. Ct. at 1846 ("[W]e have struck down statutes that tied criminal culpability to * * * wholly subjective judgments without statutory definitions, narrowing context, or settled legal mean ings.") (emphasis added).

Petitioners no longer argue that all knowledge is derived from scientific, technical, or other specialized knowledge. See Pet. Br. 29-30. Rather, they now assert that the phrase "derived from" is itself "too indetermi nate" to provide sufficient notice to an average person. Reply Br. 10. But there is no difficulty in applying that phrase to this case. Petitioners want to impart skills that they developed as a result of their substantial edu cation and experience in law, medicine, and technology. See Webster's 608 (defining "derived" as "formed or de veloped out of something else"). The connection be tween petitioners' specialized knowledge and the expert assistance they seek to render is obvious and unattenuated. And petitioners offer no ground or evi dence to think that the phrase "derived from" will be less clear as to some other set of persons involved in different activities. Suggestive of the opposite is the use of the identical phrase several hundred times in the United States Code. Petitioners say nothing about which of those other provisions are, on their view, also unconstitutional.

Petitioners contend (Reply Br. 10-11) that the dis tinction between types of general knowledge (like geog raphy) and types of specialized knowledge (like geoscience or geopolitics) is "fundamentally indetermi nate." Id. at 11. But a reasonable person contemplating assistance to foreign terrorists understands the differ ence between subjects that require substantial educa tion or experience and subjects that do not. Indeed, peti tioners' own example proves the point as well as any other. It does not require specialized knowledge to in form the LTTE's members of what presumably they and many others already know: Sri Lanka is an island na tion located off the southern coast of India (geography). Yet it would require specialized knowledge to inform them of what they and others will not commonly know, such as, for instance, whether and where Sri Lanka con tains large deposits of mineral ores (geoscience) or how European colonization has affected the country's current government (geopolitics). A person instructing mem bers of the LTTE on how to develop natural resources or capitalize on nationalist trends is offering exactly the type of "expert advice or assistance" that Congress tar geted in the material-support statute.4

3. Providing persons to work under the direction or con trol of the PKK and LTTE constitutes "personnel"

a. In their discussion of the term "personnel," peti tioners again say nothing at all about their proposed activities. Among other things, petitioners seek to "en gage in political advocacy on behalf of the PKK and the Kurds before the U.N. Commission on Human Rights and the United States Congress; * * * and * * * as sist PKK members at peace conferences and other meet ings." J.A. 58-59. As amended by Congress in IRTPA, the term "personnel" requires that a defendant know ingly provide one or more persons "to work under" a foreign terrorist organization's "direction or control" or "to organize, manage, supervise, or otherwise direct the operation of that organization." 18 U.S.C. 2339B(h). By contrast, the statute exempts any individual "who act[s] entirely independently of the foreign terrorist organiza tion to advance its goals or objectives." Ibid. Petition ers do not attempt to argue that their intended conduct, coordinated as it is with the PKK and LTTE, does not fall within the statutory definition of "personnel."

b. Petitioners' "principal vagueness objection" is that between action taken under a foreign terrorist orga nization's direction or control and action taken inde pendently of that organization, there is a "vast gray area" that creates uncertainty "as to what is permissi ble." Reply Br. 15. That claim-i.e., that the scope of the statute is so unclear that persons who want to assist known foreign terrorists cannot know what forms of aid generally are prohibited-is the essence of a facial, not as-applied, vagueness challenge. See Williams, 128 S. Ct. at 1845; Village of Hoffman Estates, 455 U.S. at 494-495, 497-498.

In any event, the question whether a defendant has acted "under [a] terrorist organization's direction or control" is simply a factual issue to be resolved by the jury in a particular case. 18 U.S.C. 2339B(h). That question may be close in some circumstances, but the possibility of hard cases does not render the term "per sonnel" vague. As this Court reasoned in Williams, "[w]hat renders a statute vague is not the possibility that it will sometimes be difficult to determine whether the incriminating fact it establishes has been proved; but rather the indeterminacy of precisely what that fact is." 128 S. Ct. at 1846. Nothing about the facts to be estab lished under the "personnel" provision is indeterminate.

Contrary to petitioner's claim (Reply Br. 15-17), the government has not argued that the material-support statute somehow incorporates antitrust doctrine. Sec tion 2339B(h) requires a particular type of concerted action: "work under [a] terrorist organization's direc tion or control." The government has never contended that this statutory requirement mirrors the Sherman Act, and petitioners' extended discussion of this compar ison is therefore beside the point. What the government has argued, and what goes unrebutted by petitioners, is that a number of federal statutes rely in some manner on the distinction between action taken independently and action taken in concert with another. Accordingly, "[j]ust as, for instance, an ordinary person understands the difference between 'concerted effort by more than one entity to fix prices or otherwise restrain trade' and 'independent activity by a single entity,' Fisher v. City of Berkeley, 475 U.S. 260, 266 (1986), so too he will un derstand the difference between acting under a foreign terrorist organization's 'direction or control' and acting on his own." Gov't Br. 35.

Indeed, quite apart from antitrust law, the definition of "personnel" is similar to terms used in other federal statutes that impose criminal liability on persons who either act under another's direction or control, see, e.g., 18 U.S.C. 175b(d)(2)(G); 18 U.S.C. 951(d), or manage, supervise, or organize an operation or individual, see, e.g., 18 U.S.C. 225(a)(1); 18 U.S.C. 1169(b)(1); 18 U.S.C. 1960(a). Petitioners argue that "[n]one of the cited stat utes threatens to criminalize otherwise-protected First Amendment activity based solely on varying levels of coordination with a designated group." Reply Br. 17. But again, petitioners conflate their First and Fifth Amendment challenges. The question for vagueness purposes is not whether the First Amendment permits the criminalization of conduct (or, as petitioners would have it, expressive activity) that occurs in coordination with known foreign terrorists. Rather, the relevant question is whether the concept of coordination is too indeterminate to provide the basis for criminal liability. As numerous federal statutes demonstrate, the answer is no.

Two of these federal criminal statutes impose liabil ity on persons who act under "the direction or control" of another. See 18 U.S.C. 175b(d)(2)(G) (prohibiting the possession, shipment, or transportation of certain bio logical agents by "an individual who * * * operates subject to the direction or control of" a foreign govern ment designated by the Secretary of State as supporting terrorism); 18 U.S.C. 951(d) (requiring notification to the Attorney General by certain "individual[s] who agree[] to operate within the United States subject to the direction or control of a foreign government or offi cial"). Petitioners attempt in vain to distinguish those statutes.

With respect to Section 175, petitioners contend that "[t]he underlying prohibition on possessing biological agents has no nexus to protected speech, and thus need not satisfy heightened vagueness standards." Reply Br. 17 n.7. But Section 2339B(a)(1) also lacks any nexus to speech, prohibiting as it does the provision of material support and resources, including personnel, to known foreign terrorists. In any event, both Section 175 and the personnel provision here require, in order to estab lish the prohibited underlying conduct, a factual deter mination about whether an individual operates subject to "the direction or control" of a foreign entity. Petition ers never explain why raising the standard of review for the personnel provision would suddenly render that fac tual determination impossible.

With respect to Section 951, petitioners assert that it "invokes a traditional agency relationship." Reply Br. 18 n.7. But in specifically defining the phrase "agent of a foreign government," Section 951 chooses not merely to incorporate or rely on traditional agency principles. See Restatement (Second) of Agency § 1 (1958). In stead, it defines an "agent" as an "individual who agrees to operate within the United States subject to the direc tion or control of a foreign government or official." 18 U.S.C. 951(d). Once again, petitioners offer no explana tion for why the same statutory phrase-"direction or control"-is clear in the context of Section 951(d) but indeterminate in the context of Section 2339B(h).

Finally, petitioners do not dispute that both before and after IRTPA's enactment, courts have consistently upheld the term "personnel" against vagueness chal lenges. See Gov't Br. 35-36. Petitioners claim that those cases did not involve "the type of loosely coordinated speech" in which they seek to engage. Reply Br. 18 n.7. But it is hard to see from the face of petitioners' com plaint where this "looseness" resides; the activities men tioned there disclose direct and substantial connections to terrorist organizations. See J.A. 58-59. And as dis cussed above, petitioners have provided no further detail about their intended conduct before this Court. If peti tioners' conduct will not occur under the "direction or control" of the PKK and LTTE, they have no reason to seek an injunction against enforcement of the term "per sonnel"; and if their conduct will occur under the "direc tion or control" of the PKK and LTTE, they have no basis for such an injunction.

4. Helping the PKK and LTTE appear before national and international representative bodies constitutes "services"

a. Petitioners do not attempt to explain why the term "service" is unclear as applied to their proposed conduct. No doubt that is because, although their hypotheticals suggest otherwise (Reply Br. 14), petition ers seek to render direct benefit to the PKK and LTTE by assisting in the actions that those groups undertake. Petitioners seek to "assist[] the PKK in appearing be fore national and international representative bodies such as the United Nations Human Rights Subcom mission, the Council of Europe, the United States Con gress, and international human rights conferences." J.A. 98. In particular, they seek "to provide training and expert advice and assistance * * * on how to bring claims and appeals of Kurds before the UN and other policy making bodies." J.A. 99. Petitioners' proposed conduct therefore falls squarely within the term "ser vice" on any interpretation.

b. Petitioners contend that, as evidence of the term's ambiguity, "the government offers three dramatically different definitions" of "service." Reply Br. 12. That is not the case. See Gov't Br. 38-41. The government's principal position is that the term "service" refers to "an act done for the benefit or at the command of another." Webster's 2075; see Gov't Br. 38. Under this definition, the terrorist organization's command or behest is not a necessary element; petitioners themselves suggest that Congress intended to prohibit services "such as survey ing and mapping a target site" that are provided to for eign terrorist organizations, even if not at their behest or command. Reply Br. 13. In light of the statute's pur poses, Congress surely employed the term "service," consistent with its ordinary meaning, to refer to an act done for the benefit of a foreign terrorist organization. That definition fits well with the statute's additional re quirement that the "service" be provided "to a foreign terrorist organization." 18 U.S.C. 2339B(a)(1) (emphasis added). Because of that requirement, it is not sufficient for a defendant, acting independently of a foreign ter rorist organization, to perform an act that may in fact benefit that organization. Rather, the defendant must channel the intended benefit toward that organization.5

Petitioners incorrectly assert that the phrase "ser vice to" is not limited to aid directed toward a foreign terrorist group, because "[i]ndependently acting to ben efit someone is not uncommonly labeled rendering a ser vice to him." Reply Br. 14. In fact, it would be unusual to say that someone who, on his own, performs an act that indirectly benefits the PKK and LTTE has ren dered a type of "material support or resources"-i.e., a "service"-"to" those groups. And petitioners' reading becomes all the more implausible when the word "ser vice" is viewed in context. Section 2339A(b)(1) forbids providing a number of types of support to foreign ter rorist organizations, from "currency" and "financial ser vices" to "weapons" and "explosives." As the types of aid enumerated in the statute indicate, Congress was concerned with "service[s]" that are directed toward a foreign terrorist organization. See Gov't. Br. 39-40. Moreover, reading "service" to include independent ad vocacy, as petitioners suggest, would make meaningless Congress's decision to exclude such activity from the subsidiary term "personnel." "[T]he various provisions of the Act should be read in pari materia," United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 138 n.11 (1985), with "service" interpreted not to encom pass types of conduct-like independent advocacy-that its subsidiary terms specifically exclude. See Gov't Br. 40.6

Indeed, the government has taken the position throughout this litigation that independent advocacy is not covered by the term "service." See, e.g., Gov't C.A. Br. 46. That consistent position is entitled to respect in evaluating whether the term "service" is unconstitution ally vague. See Grayned, 408 U.S. at 110 (vagueness challenge to a statute requires consideration "to some degree" of "the interpretation of the statute given by those charged with enforcing it"); cf. Village of Hoffman Estates, 455 U.S. at 494 n.5 ("In evaluating a facial chal lenge to a state law, a federal court must, of course, con sider any limiting construction that a state court or en forcement agency has proferred.") (citing Grayned, 408 U.S. at 110).

If, however, this Court finds that the government's preferred reading of "service" (as including "acts done for the benefit of another") could sweep in independent advocacy, even when combined with the word "to," then the Court should limit the term "service" to acts done at the command or behest of a foreign terrorist organiza tion to further its goals and objectives. See Gov't Br. 40-41. Interpreted in that way, the statute could not possibly reach independent advocacy, and thus it would not, even on petitioners' approach, present a vagueness problem. "[W]hen 'a statute is susceptible of two con structions, by one of which grave and doubtful constitu tional questions arise and by the other of which such questions are avoided, [the Court's] duty is to adopt the latter.'" Harris v. United States, 536 U.S. 545, 555 (2002) (quoting United States ex rel. the Att'y Gen. of the United States v. Delaware & Hudson Co., 213 U.S. 366, 408 (1909)). To the extent that the government's principal reading of "service to" raises concern, this canon of constitutional doubt permits interpretation of the statute to require that a "service" be done at a for eign terrorist organization's command or behest.

Under either approach, whether the defendant has the requisite connection with a known terrorist organi zation is a straightforward factual question. The gov ernment may find it harder or easier to prove that con nection in a given case, but nothing about the question itself is subjective or indeterminate. See Williams, 128 S. Ct. at 1846. Although petitioners strain to read the term "service" (Reply Br. 14), and indeed all of the chal lenged terms (id. at 18-19), in a manner that would ren der the statute unconstitutional, the duty that this Court owes to a coordinate Branch compels a different course. See, e.g., Northwest Austin Mun. Util. Dist. No. One v. Holder, 129 S. Ct. 2504, 2513 (2009). Reasonably inter preted, the contested terms in the material-support stat ute all have a clear meaning to an ordinary person, and accordingly the statute is not unconstitutionally vague.


Petitioners largely abandon (Reply Br. 18-19) their claim that the material-support statute is overbroad. They assert in passing that the four challenged terms "are so profoundly indeterminate that they are facially overbroad," id. at 18, but they make no effort to demon strate that the statute prohibits a "substantial" amount of protected expression, judged both in absolute terms and in relation to the statute's legitimate applications, Virginia v. Hicks, 539 U.S. 113, 119-120 (2003). Al though petitioners say (Reply Br. 18-19) that the statute interferes with the work of some of their amici, those amici do not themselves contend that the statute is overbroad. See Carter Center Amicus Br. 6, 28. In the end, petitioners offer no serious challenge (nor could they) to the court of appeals' conclusion that Section 2339B is not overbroad.

Petitioners continue to argue (Reply Br. 20-39) that Section 2339B, as applied to their proposed conduct, violates their speech and association rights. Not a single court (and indeed not a single judge on the en banc court of appeals in this case) has accepted either of those ar guments. The material-support statute is a content-neu tral regulation of conduct that at most incidentally re stricts petitioners' speech and association. It is there fore subject to no more than intermediate scrutiny on both claims under United States v. O'Brien, 391 U.S. 367 (1968). And, as the court of appeals held, it survives such scrutiny because it is narrowly tailored to advance important governmental interests unrelated to the sup pression of expression or association.

A. The Statute Is A Regulation Of Conduct That Only Inci dentally And Permissibly Affects Expression

1. As a facially neutral regulation of conduct, Section 2339B may impose an incidental burden on speech

a. Petitioners' challenge is defeated by two key points. See Gov't Br. 44-47. First, Section 2339B is a regulation of a type of conduct-providing aid to foreign terrorist organizations. Id. at 45. That prohibition on conduct applies without regard to whether the donor of the aid intends to convey a particular message or engage in expression at all. Accordingly, to the extent that Sec tion 2339B restricts expressive activity, that restriction is incidental to a generally applicable and content-neu tral ban on conduct. Second, Section 2339B's ban on providing aid to foreign terrorist groups is justified by a governmental interest that is unrelated to the suppres sion of expression. The statute is directly geared to pre venting the flow of material aid to groups whose violent activities threaten American lives and interests. Id. at 45-47.

b. Under this Court's precedents, generally applica ble regulations of conduct that impose an incidental bur den on expression are subject to intermediate scrutiny under O'Brien. See, e.g., United States v. Albertini, 472 U.S. 675, 687 (1985) ("Application of a facially neutral

regulation that incidentally burdens speech satisfies the First Amendment" if it survives intermediate scrutiny.); Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 604 (2001) (Stevens, J., concurring in part) ("This Court has long recognized the need to differentiate between legislation that targets expression and legislation that targets con duct for legitimate non-speech-related reasons but im poses an incidental burden on expression."); id. at 567.

Petitioners appear to argue (Reply Br. 20-26) that the O'Brien test applies only when a facially neutral regulation of conduct imposes an incidental burden on acts, divorced from all words, that express a message. That argument makes clear that it is petitioners, not the government, who hope to "radically revise[]" "First Amendment doctrine." Id. at 26. This Court has never limited O'Brien's test for incidental restraints in such a manner. To the contrary, this Court has held that inter mediate scrutiny applies to content-neutral regulations of conduct that impose incidental burdens on communi cation, regardless whether that communication is writ ten, oral, or (as in O'Brien itself) symbolic. See Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 189 (1997) (Turner II); Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 662 (1994) (Turner I); Wayte v. United States, 470 U.S. 598, 611 (1985); City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 804-805 (1984); see also R.A.V. v. City of St. Paul, 505 U.S. 377, 389 (1992) ("[W]ords can in some circumstances violate laws directed not against speech but against conduct."). So far as the gov ernment is aware, no member of this Court, nor any lower court, has suggested that strict scrutiny should replace the O'Brien test when a generally applicable, content-neutral regulation of conduct incidentally re strains expression involving words.

Nor do petitioners explain why the Court should limit the O'Brien test to cases in which the incidental restriction burdens a single form of expression-i.e., nonverbal expression. The conduct at issue in O'Brien was indisputably communicative in nature and purpose, and this Court did not suggest that it had some lesser value because it relied on symbols. See Reilly, 533 U.S. at 567 (noting O'Brien's application to incidental restric tions of "communicative action"); Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377, 386 (2000) (same). What mat ters under O'Brien and its progeny is not the form of a person's communication, but whether the government has regulated that communication only incidentally, as part of a general regulation that applies irrespective of the person's message.7

Section 2339B is just such a generally applicable reg ulation. What the statute prohibits is the act of provid ing aid to known foreign terrorist organizations in a wide variety of forms, tangible and intangible, economic and noneconomic. The statute applies regardless of a person's beliefs or motives in rendering material sup port to a terrorist organization. The statute applies re gardless whether the support is accompanied by any expression (verbal or nonverbal) and, if it is, regardless of the content of that expression. See Pet. App. 28a. No doubt the statute sometimes will sweep in expression, including words. When, for example, a person trains a terrorist organization in building bombs or flying air planes or (as here) petitioning international bodies, words are likely to be involved. But the statute does not specially regulate expression, let alone expression of any particular kind; nor does its application depend on any particular communicative effect. Cf. Johnson, 491 U.S. at 411-412. Section 2339B prohibits the provision of ma terial support to known foreign terrorists generally, and therefore is subject to intermediate scrutiny under O'Brien.

c. For similar reasons, petitioners cannot claim that in enacting the material-support statute, Congress's interest was "related to the suppression of free expres sion." Johnson, 491 U.S. at 403. Congress's manifest interest was to end the flow of support and resources to foreign organizations engaged in violent and unlawful activities. Congress acted on the view that all support to such organizations, even if ostensibly directed at their legal activities, abetted their terrorist aims. Cf. Boim v. Holy Land Found. for Relief & Dev., 549 F.3d 685, 698 (7th Cir. 2008) (en banc) ("Anyone who knowingly con tributes to the nonviolent wing of an organization that he knows to engage in terrorism is knowingly contribut ing to the organization's terrorist activities."), cert. de nied, 130 S. Ct. 458 (2009). "[T]he fungibility of financial resources and other types of material support" would permit individuals "to supply funds, goods, or services to an organization," which would "help[] defray the cost to the terrorist organization of running the ostensibly le gitimate activities. This in turn frees an equal sum that can then be spent on terrorist activities." H.R. Rep. No. 383, 104th Cong., 1st Sess. 81 (1995) (1995 House Re port). Nothing about that governmental interest relates in any way to the suppression of free expression.

Petitioners appear to argue (Reply Br. 22-23) that because they wish to engage in "pure speech," the gov ernment's interest in applying the material-support stat ute to them must relate to suppressing expression. That proposition is wrong because its premise is wrong. More is at issue here than "only words," with "no nonspeech element or noncommunicative conduct." Id. at 22 (inter nal quotation marks omitted). To the contrary, what petitioners wish to do in this case has an obvious nonspeech element: they hope to provide material sup port to terrorists. And application of the statute to peti tioners follows exclusively from their proposed provision of such support, in the form of training, expert assis tance, and personnel.

This Court has recognized often that words can have nonspeech elements or be ancillary to conduct (just as acts can have speech elements or be ancillary to expres sion). For example, the Court in R.A.V. noted that spo ken words may have "unprotected features" deriving from the "'nonspeech' element of communication." 505 U.S. at 386. That is why the government has the "power to proscribe particular speech on the basis of a noncontent element (e.g., noise)," although that "does not entail the power to proscribe the same speech on the basis of a content element." Ibid. Similarly, the Court has acknowledged that language can be but a vehicle for or adjunct to proscribable conduct. In Rumsfeld v. Fo rum for Academic & Institutional Rights, Inc., 547 U.S. 47 (2006) (FAIR), this Court held that because "[t]he compelled speech" involved in that case was "plainly incidental to the Solomon Amendment's regulation of conduct," it did not violate the First Amendment: "it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evi denced, or carried out by means of language, either spo ken, written, or printed." Id. at 62 (quoting Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502 (1949)).8

That is all that is at issue here. The application of Section 2339B to petitioners reflects the government's interest not in suppressing the expression of petitioners' ideas, but in preventing material support to foreign ter rorist organizations. Petitioners propose to provide tan gible assistance to terrorists through the medium of language, but that does not exempt them from the force of the statute. That is because the government is target ing the nonspeech (and a fortiori the noncontent) ele ment of petitioners' proposed dealings with the PKK and LTTE.9 Nor does it matter, as petitioners seem to think, that they wish through their training and other activities to support purportedly legitimate operations of terrorist organizations. Congress determined that by imparting to the PKK and LTTE valuable skills, peti tioners free resources, either directly or indirectly, for terrorist organizations to devote to unlawful activities. Petitioners' actions thus strengthen those groups and, in turn, endanger American lives and interests. 1995 House Report 81. Application of Section 2339B to peti tioners arises only from these legitimate governmental interests; it prevents petitioners, no matter what ideas they have or express, from providing direct support to and thereby strengthening terrorist organizations.

2. Section 2339B is not a content-based restriction on speech

a. Petitioners argue (Reply Br. 29-30) that the material-support statute's prohibitions on "training" and "expert advice or assistance" (but apparently not "per sonnel" and "service") are content-based. Petitioners agree (id. at 28), as they must, that "whether a statute is content neutral or content based is something that can be determined on the face of it; if the statute describes speech by content then it is content based." City of L.A. v. Alameda Books, Inc., 535 U.S. 425, 448 (2002). That rule resolves the question. The categories of "training" or "expert advice or assistance" do not necessarily refer to speech at all; nor do the provisions distinguishing between general knowledge and specific skills, on which petitioners seem to place greatest weight. Such prohibi tions on conduct do not become content-based regula tions of speech because they incidentally restrict some but not all expressive activity.10 And even as and when applied to expressive activity, the statutory terms do not distinguish based on viewpoint or subject matter or speaker or any other consideration that this Court has viewed as suspect in its First Amendment case law. The training and expert assistance prongs of Section 2339B prohibit aid to terrorist organizations-not speech and certainly not speech with any particular message.

b. Petitioners further argue (Reply Br. 28) that the statute is content-based because it does not prohibit the provision of medicine and religious materials. See 18 U.S.C. 2339A(b)(1). But that limitation again has nothing to do with the content of any speaker's message. Congress was entitled to find that certain forms of assis tance are not fungible, and so will not inevitably aid the activities of terrorist organizations that endanger Amer ican lives and interests. Or Congress was entitled to determine that the humanitarian value of some forms of aid outweighs the interests supporting their prohibition. If Congress may ban the flow of material support or resources generally, then it may narrow that ban by creating exceptions, so long as the governmental inter est in those exceptions-like the governmental interest in the ban itself-is unrelated to the suppression of ex pression. The justification for preventing resources from flowing to terrorists becomes no less significant because Congress has determined that some resources present lesser dangers. See Albertini, 472 U.S. at 687 ("That justification [for excluding the defendant] did not become less weighty when other persons were allowed to enter.").

3. Section 2339B is narrowly tailored to advance the important governmental interest in preventing aid to terrorists

a. Petitioners contend (Reply Br. 31-32) that the government must justify the material-support statute as applied to their specific conduct. But that requirement does not apply to statutes subject only to intermediate review. As this Court explained in Albertini, "[t]he First Amendment does not bar application of a neutral regulation that incidentally burdens speech merely be cause a party contends that allowing an exception in the particular case will not threaten important government interests." 472 U.S. at 688. According to the Court, "[r]egulations that burden speech incidentally * * * must be evaluated in terms of their general effect." Id. at 688-689 (internal citation omitted); see Clark v. Com munity for Creative Non-Violence, 468 U.S. 288, 296- 297 (1984) ("[T]he validity of this regulation need not be judged solely by reference to the demonstration at hand."). Here, the government must prove that it has a substantial interest in the material-support statute taken as a whole, not taken in each particular applica tion. And petitioners concede that, as a general matter, the government has "legitimate interests" in Section 2339B. Reply Br. 32.

b. In any event, petitioners' argument (Reply Br. 33- 35) that the government lacks a sufficiently important interest to regulate their activity does not defeat Con gress's considered judgment. Congress found that "for eign organizations that engage in terrorist activity are so tainted by their criminal conduct that any contribu tion to such an organization facilitates that conduct." Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, § 301(a)(7), 110 Stat. 1247. Petitioners claim that Congress had in mind only "'contributions,' not speech," Reply Br. 33, but in fact Congress deliberately extended the prohibition beyond monetary donations. The accompanying House Report makes clear that, without Section 2339B, "the fungibility of financial resources and other types of material sup port" would permit individuals "to supply funds, goods, or services to an organization." 1995 House Report 81 (emphasis added). Congress thus was concerned about the delivery of a broad array of material support, includ ing the services that petitioners wish to provide. That Congress did not mention speech is only further evi dence that Section 2339B is content-neutral: Congress cared generally about individuals rendering service to foreign terrorist organizations, regardless whether that service involved any expression.

c. Petitioners similarly assert that "[h]uman rights advocacy training and peacemaking are not fungible like money." Reply Br. 34. That assertion in fact underlies petitioners' entire case, but it is addressed to the wrong branch of government. Petitioners dispute (id. at 42-44) the idea that assisting terrorist organizations in the way they propose will endanger American lives and inter ests. But Congress has made a different judgment about the need to prevent aid to foreign terrorist organi zations generally, and that judgment is entitled to re spect. See, e.g., Turner II, 520 U.S. at 195 ("In review ing the constitutionality of a statute, 'courts must accord substantial deference to the predictive judgments of Con gress.'") (quoting Turner I, 512 U.S. at 665); United States v. Eichman, 496 U.S. 310, 314 (1990) (noting "the deferential standard" of review that applies to "regula tions of conduct containing both speech and nonspeech elements where 'the governmental interest is unrelated to the suppression of free expression'") (quoting O'Brien, 391 U.S. at 377).

That is especially so in this context because Section 2339B implicates sensitive national security and foreign affairs interests, to which a heightened degree of defer ence to Congress and the Executive Branch is war ranted. See Humanitarian Law Project v. Reno, 205 F.3d 1130, 1136 (9th Cir. 2000) ("Because the judgment of how best to achieve that end [of combating terrorism] is strongly bound up with foreign policy considerations, we must allow the political branches wide latitude in selecting the means to bring about the desired goal."), cert. denied, 532 U.S. 904 (2001); see also Haig v. Agee, 453 U.S. 280, 292 (1981) ("Matters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention."); Regan v. Wald, 468 U.S. 222, 242 (1984).

Even taken on its own terms, petitioners' view on this score is at odds with itself. Petitioners broadly claim (Reply Br. 42-44) that training terrorist organiza tions in peacemaking and human rights advocacy will not undermine national security. But they conceded before the lower courts that Congress could constitu tionally prohibit any and all forms of support to al Qaeda-presumably because such aid does pose a secu rity danger. See Pet. C.A. Br. 32 n.13. Petitioners' posi tion thus amounts to a claim that Congress may not ex tend the material support statute to additional terrorist organizations, including the PKK and LTTE. The basis for that claim, as the government noted in its opening brief (at 57), has nothing to do with the statute's sup posed vagueness, content-discrimination, or association al effects. Rather, it is grounded in petitioners' policy judgment about aid to al Qaeda as compared with aid to other terrorist organizations. Petitioners' silence in response speaks volumes about the real basis of this lawsuit.

B. The Statute Does Not Infringe Petitioners' Right Of Association

1. Petitioners contend (Reply Br. 36-39) that the material-support statute violates their right to associate with foreign terrorist organizations. But just as Section 2339B regulates conduct-the act of giving material support-regardless of its expressive content, so too it regulates such conduct regardless of simple membership in or association with foreign terrorist groups. It is therefore again subject to intermediate scrutiny under O'Brien. And it survives that scrutiny for essentially the same reason: it is narrowly tailored to advance im portant governmental interests unrelated to the sup pression of association. See Gov't Br. 59-61. Petition ers' only answer to these points is to misstate the extent of what Section 2339B prohibits.

Petitioners assert that by "effectively outlawing all 'concerted activity,'" Section 2339 "penalize[s] virtually anything one might do in association with a designated group." Reply Br. 36. That assertion ignores the point, made by both the court of appeals and the government, that "[t]he statute does not prohibit being a member of one of the designated groups or vigorously promoting and supporting the political goals of the group." Hu manitarian Law Project, 205 F.3d at 1133; see Gov't Br. 15. Rather, what the statute "prohibits is the act of giv ing material support, and there is no constitutional right to facilitate terrorism." Humanitarian Law Project, 205 F.3d at 1133. Petitioners are therefore incorrect that Section 2339 penalizes "association plus something more." Reply Br. 38. What the statute penalizes is only the "something more"-i.e., not mere membership or association, but only the act of rendering material sup port, in the form of property or services, to foreign ter rorists.

2. Petitioners are also incorrect that "the govern ment simply redefines 'peaceably assembling with mem bers of the PKK and LTTE for lawful discussion' of hu man rights advocacy and peacemaking as a 'service.'" Reply Br. 37. The government made clear in its opening brief that "Section 2339B * * * does not prevent peti tioners from peaceably assembling with members of the PKK and LTTE for lawful discussion." Br. 61. Petition ers may join the PKK and LTTE, gather with those groups' members, and discuss subjects of mutual inter est. Petitioners filed the present suit for injunctive re lief, however, because they want to do more than engage in discussion with terrorist groups. Specifically, peti tioners want to train the PKK and LTTE on how to ap pear before international bodies; assist those groups at international meetings and conferences; and offer medi cal care, economic development services and information technology to those groups and their members. J.A. 58- 63.

That fact distinguishes the present case from De Jonge v. Oregon, 299 U.S. 353 (1937). The defendant in De Jonge was not charged with the kind of acts that petitioners wish to perform. Rather, "[h]is sole offense as charged, and for which he was convicted and sen tenced to imprisonment for seven years, was that he had assisted in the conduct of a public meeting, albeit other wise lawful, which was held under the auspices of the Communist Party." Ibid. This Court set aside the defen dant's conviction, holding that he could not be punished solely for exercising his First Amendment right to en gage in "peaceable assembly for lawful discussion." Id. at 365. Section 2339B accords with that principle: it does not prohibit petitioners from peaceably assembling with foreign terrorist organizations for lawful discus sion. Nothing in De Jonge suggests that Congress may not prohibit petitioners from the additional act, separate from peaceable discussion, of providing material support to groups with a demonstrated willingness to engage in terrorism.

3. Finally, petitioners ignore the effect of the inter national context on their claims. Although this Court has not confronted the issue in the context of associa tional rights, this Court and other courts have recog nized the "longstanding right of the sovereign to protect itself." United States v. Ramsey, 431 U.S. 606, 616 (1977). As a corollary to that right, this Court and other courts have consistently recognized the authority of the political Branches to restrict individuals from dealing with foreign governments whose actions are deemed to be inimical to American interests. See, e.g., Wald, 468 U.S. at 242-243 (rejecting Fifth Amendment chal lenge to President's decision to curtail travel to Cuba); Zemel v. Rusk, 381 U.S. 1, 16-17 (1965) (holding that a United States citizen lacked any First Amendment right to travel to Cuba to gather information); Veterans & Reservists for Peace in Vietnam v. Regional Comm'r of Customs, 459 F.2d 676, 681-684 (3d Cir.) (upholding Trading with the Enemy Act and Foreign Assets Con trol Regulations against First Amendment claim to re ceive foreign literature), cert. denied, 409 U.S. 933 (1972).

The principle is as relevant to foreign terrorist orga nizations as to foreign governments: the foreign affairs powers of the political Branches include substantial au thority, of just the kind Congress exercised in enacting the material-support statute, to restrict individuals from providing aid to foreign entities that threaten harm to this Nation's interests. See Zemel, 381 U.S. at 16 ("[T]he restriction which is challenged in this case is supported by the weightiest considerations of national security."); Regan, 468 U.S. at 242 ("Our holding in Zemel was merely an example of this classical deference to the political branches in matters of foreign policy."); ibid. (upholding Cuban travel ban as "justified by weighty concerns of foreign policy"). Individuals are subject to limitations in their relations with foreign gov ernments and entities that differ from any found in the domestic setting. See Dames & Moore v. Regan, 453 U.S. 654 (1981). So even assuming that petitioners have some right of association to provide material sup port to domestic terrorist organizations, no such right should exist in the international context. And because the speech rights that petitioners have asserted in this case largely collapse into their claim of associational rights (given that the material support statute does not limit their independent advocacy), petitioners' speech claims fail for the same reason.


1. Before the lower courts, petitioners claimed that the material-support statute violates the Fifth Amend ment's Due Process Clause unless it is interpreted to require specific intent to further a terrorist organiza tion's unlawful activities. Before this Court, petitioners relegate that claim to a pair of footnotes (Br. 43 n.23; Reply Br. 36 n.17) that seek to incorporate by reference their arguments before the court of appeals. That strat egy "is not enough to raise the question fairly" for this Court's consideration. Sosa v. Alvarez-Machain, 542 U.S. 692, 735 n.24 (2004).

Before this Court, petitioners press a different argu ment: that interpreting the material-support statute to require proof of specific intent would avoid resolution of all their constitutional claims. Contrary to their conten tion (Reply Br. 39 n.19), petitioners did not raise that argument below. The "constitutional infirmity" that they previously urged the court of appeals to avoid was imposing guilt by association in violation of the Fifth Amendment. Pet. C.A. Reply Br. 11-19; see Pet. C.A. Br. 19-37. That is precisely the claim that petitioners have failed to preserve here.

2. As the government has explained (Br. 63), peti tioners' proposed specific intent requirement would not cure the First Amendment problems that they perceive. Petitioners agree with this much, saying only that if the challenged provisions are interpreted to require specific intent, "the injunction against applying the provisions to plaintiffs' proposed speech could be sustained on statu tory grounds," and the Court would not have to reach the constitutional questions in this case. Reply Br. 40. But the government has not conceded that all the peti tioners currently lack, or will lack in the future, the spe cific intent to further unlawful terrorist activities. See Anti-Defamation League Amicus Br. 23 (describing how one of the petitioners, the World Tamil Coordinating Committee, assists in raising funds for the LTTE). If petitioners have this intent, their avoidance strategy will avoid nothing at all in this case (let alone in any others): they will continue to press their vagueness claims.

3. Nor is petitioners' proposal to amend the statute as modest as they try to make it appear. Petitioners argue that this Court should construe "the challenged provisions" to require specific intent. Reply Br. 40. But they do not explain why a specific intent requirement would apply only to challenged terms like "training," "expert advice or assistance," "personnel," or "service." Earlier in this litigation, petitioners sought to give fi nancial support to the PKK and LTTE, see id. at 32 n.14; they do not concede (ibid.) that the statute is con stitutional as applied to monetary contributions; and nothing will prevent others from arguing in the future that monetary contributions also have a communicative element. By petitioners' logic, any provision of the stat ute capable of reaching conduct with an expressive com ponent should require proof of specific intent.

Moreover, petitioners incorrectly argue that this Court can construe the challenged terms to require spe cific intent only when they are "applied to speech." Re ply Br. 40; see id. at 41-42. But in Clark v. Martinez, 543 U.S. 371 (2005), this Court held that when a statute is given a limiting construction to avoid constitutional concerns, that construction applies to future cases "whether or not those constitutional problems pertain to the particular litigant before the Court." Id. at 381. Contrary to petitioners' proposal, the meaning of the terms in the material-support statute cannot vary de pending on whether they are being "applied to speech." If petitioners are correct, then all prosecutions for ren dering particular types of material support to foreign terrorists will require proof of specific intent.

4. Finally, and most importantly, petitioners' inter pretation conflicts with Congress's intent. Congress adopted a specific intent requirement in Sections 2339A and 2339C, but not in Section 2339B. Petitioners argue (Reply Br. 41-42) that there is no evidence Congress deliberately rejected such a requirement in Section 2339B, but that is not the case. Congress amended Sec tion 2339B years after the enactment of Sections 2339A and 2339C, yet it opted for a different scienter require ment that does not require specific intent-and it did so in the face of a judicial conflict over that very issue. See Gov't Br. 65. Congress apparently thought that Section 2339A's prohibition on providing material support to terrorists was not sufficiently effective, and it therefore chose not to replicate the provision's specific intent re quirement. See CACL Amicus Br. 8-9. Indeed, if Sec tion 2339B were interpreted to include a specific intent requirement, it would become almost wholly duplicative of Section 2339A. In those circumstances, petitioners' request for avoidance amounts to little more than "a license * * * to rewrite language enacted by the legisla ture." Albertini, 472 U.S. at 680.

* * * * *

The judgment of the court of appeals should be reversed insofar as it held certain terms in Sections 2339A and 2339B unconstitutionally vague and in all other respects affirmed.

Respectfully submitted.

Solicitor General


1 This Court has recognized that a statute is not vague merely because it might be characterized as involving a distinction of degree. Pet. Br. 27. In Scales v. United States, 367 U.S. 203 (1961), this Court interpreted the Smith Act, 18 U.S.C. 2385, to require active member ship in certain organizations. It then rejected a vagueness challenge to the statute, holding that "[t]he distinction between 'active' and 'nominal' membership is well understood in common parlance, and the point at which one shades into the other is something that goes not to the sufficiency of the statute, but to the adequacy of the trial court's guidance to the jury by way of instructions in a particular case." Scales, 367 U.S. at 223 (internal citations omitted).

2 Petitioners argue that under "the EAJA standard" their "proposed human rights instruction" involves general knowledge rather than specialized skill. Reply Br. 8-9. That is false: very few attorneys are capable of teaching others how to appear, lobby, or petition before governmental bodies on matters relating to international and human rights law. Indeed, the Court in Pierce specifically cited foreign law as the kind of subject matter requiring specialized knowledge. 487 U.S. at 572. In any event, applying the distinction between specialized skills and general knowledge depends in part on context. Unlike the EAJA, the material-support statute asks whether an ordinary citizen (not an attorney) is imparting to foreign terrorists (not legal clients) skills that are specialized vis-à-vis the general public (not the legal profession).

3 The ethics rule in Gentile also was a content-based regulation of speech-i.e., "a ban on political speech critical of the government and its officials." 501 U.S. at 1034. Such a regulation "raises special First Amendment concerns because of its obvious chilling effect on free speech." Reno v. ACLU, 521 U.S. 844, 871-872 (1997). By contrast, the material-support statute is a generally applicable, content-neutral regulation of conduct. See pp. 27-34, infra.

4 Petitioners claim that the types of aid prohibited by the material- support statute-such as "false documentation or identification, com munications equipment, * * * weapons, lethal substances, [and] explosives," 18 U.S.C. 2339A(b)(1)-suggest that the statute "forbids only advice that furthers a group's violent ends." Reply Br. 11. But the statute also prohibits the provision of many other types of aid- including "currency or monetary instruments or financial securities, financial services, lodging," "facilities," and "transportation," 18 U.S.C. 2339A(b)(1)-which need not be used to further a group's violent ends.

5 Contrary to petitioners' argument (Reply Br. 14 n.4), the question is not whether the defendant renders aid to a terrorist organization directly or through an intermediary, but whether the defendant targets the organization as the ultimate recipient of its intended aid. See Gov't Br. 22, 39; see also Gov't C.A. Reply Br. 8 n.1 ("[T]he statute would prohibit, for example, giving money to a terrorist group through a third-party conduit.").

6 Contrary to petitioners' assertion (Reply Br. 13), this argument is not new. In their opening brief before the court of appeals, petitioners argued that the term "service" "is so broad that it swallows any of the limitations" contained in the other challenged terms. Pet. C.A. Br. 49- 50. The government responded that "'service'-like the terms 'train ing' and 'expert advice or assistance'-is limited by surrounding statutory terms and context to mean support knowingly given directly to terrorist groups, and does not include independent advocacy that might indirectly benefit such organizations." Gov't C.A. Br. 46. Thus, petitioners have long been on notice that the government interprets the statutory phrase "service to" as excluding independent advocacy.

7 In an analogous context, this Court has applied the constitutional standard for time, place, and manner regulations-which "is little, if any, different" from the O'Brien standard for content-neutral regula tions of conduct, Clark v. Community for Creative Non-Violence, 468 U.S. 288, 298 (1984)-to instances of both expressive conduct, ibid., and speech, Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). Whether applied to expressive conduct or speech, this Court has upheld a time, place, or manner regulation if it is "justified without reference to the content of the regulated speech." Ibid. (quoting Clark, 468 U.S. at 293).

8 In FAIR, this Court noted that "Congress, for example, can prohibit employers from discriminating in hiring on the basis of race. The fact that this will require an employer to take down a sign reading 'White Applicants Only' hardly means that the law should be analyzed as one regulating the employer's speech rather than conduct." 547 U.S. at 62. Similarly, the Court has long recognized that statutes prohibiting such conduct as blackmail, bribery, fraud, and treason-even though all those acts are effectuated through the use of language-raise no serious First Amendment concern.

9 It is for this reason that cases like Cohen v. California, 403 U.S. 15 (1971), are utterly inapposite. See Reply Br. 26 & n.12. In those cases, unlike in this one, the government's application of a statute arose from and targeted the content of a speaker's message or the likely communi cative impact of that message on its intended audience.

10 Petitioners appear to agree (Reply Br. 29-30) that a law is not content-based simply because one must "look at the content of an oral or written statement in order to determine whether a rule of law applies to a course of conduct." Hill v. Colorado, 530 U.S. 703, 721 (2000). Although Hill concerned time, place, and manner regulations, that fact is irrelevant. A host of generally applicable laws regulating conduct work in the same way, such as statutes regulating discrimination or misbranding of products. Determining whether a defendant has violated the law depends on knowing what he has said, but that does not render such laws content-based.