561 U. S. ____ (2010) 561 U. S. ____ (2010) 561 U. S. ____ (2010) SUPREME COURT OF THE UNITED STATES NOS. 08-1498 AND 09-89 ERIC H. HOLDER, Jr., ATTORNEY GENERAL, et al.,
PETITIONERS

															08–1498 v. HUMANITARIAN LAW PROJECT et al. HUMANITARIAN LAW PROJECT, et al., PETITIONERS

															09–89 v. ERIC H. HOLDER, Jr ., ATTORNEY GENERAL,
et al.

															on writs of certiorari to the united states court
of appeals for the ninth circuit

															[June 21, 2010]

															   Chief Justice Roberts delivered
the opinion of the Court.

															   Congress has prohibited the
provision of “material support or resources” to certain foreign
organizations that engage in terrorist activity. 18 U. S. C.
§2339B(a)(1). That prohibition is based on a finding that the
specified organizations “are so tainted by their criminal conduct
that any contribution to such an organization facilitates that
conduct.” Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), §301(a)(7), 110 Stat. 1247, note following 18 U.
S. C. §2339B (Findings and Purpose). The plaintiffs in this
litigation seek to provide support to two such organizations.
Plaintiffs claim that they seek to facilitate only the lawful,
nonviolent purposes of those groups, and that applying the
material-support law to prevent them from doing so violates the
Constitution. In particular, they claim that the statute is too
vague, in violation of the Fifth Amendment, and that it infringes
their rights to freedom of speech and association, in violation of
the First Amendment. We conclude that the material-support statute
is constitutional as applied to the particular activities
plaintiffs have told us they wish to pursue. We do not, however,
address the resolution of more difficult cases that may arise under
the statute in the future.

															I

															   This litigation concerns 18 U.
S. C. §2339B, which makes it a federal crime to “knowingly
provid[e] material support or resources to a foreign terrorist
organization.”[ Footnote 1 ]
Congress has amended the definition of “material support or
resources” periodically, but at present it is defined as
follows:

															“[T]he term ‘material support or resources’ means
any property, tangible or intangible, or service, including
currency or monetary instruments or financial securities, financial
services, lodging, training, expert advice or assistance,
safehouses, false documentation or identification, communications
equipment, facilities, weapons, lethal substances, explosives,
personnel (1 or more individuals who may be or include oneself),
and transportation, except medicine or religious materials.”
§2339A(b)(1); see also §2339B(g)(4).

															   The authority to designate an
entity a “foreign terrorist organization” rests with the Secretary
of State. 8 U. S. C. §§1189(a)(1), (d)(4). She may, in
consultation with the Secretary of the Treasury and the Attorney
General, so designate an organization upon finding that it is
foreign, engages in “terrorist activity” or “terrorism,” and
thereby “threatens the security of United States nationals or the
national security of the United States.” §§1189(a)(1), (d)(4).
“ ‘[N]ational security’ means the national defense, foreign
relations, or economic interests of the United States.”
§1189(d)(2). An entity designated a foreign terrorist organization
may seek review of that designation before the D. C. Circuit
within 30 days of that designation. §1189(c)(1).

															   In 1997, the Secretary of State designated 30
groups as foreign terrorist organizations. See 62 Fed. Reg. 52650.
Two of those groups are the Kurdistan Workers’ Party (also known as
the Partiya Karkeran Kurdistan, or PKK) and the Liberation Tigers
of Tamil Eelam (LTTE). The PKK is an organization founded in 1974
with the aim of establishing an independent Kurdish state in
southeastern Turkey. Humanitarian Law Project v. Reno , 9 F. Supp. 2d 1176, 1180–1181 (CD Cal. 1998);
Brief for Petitioners in No. 08–1498, p. 6 (hereinafter Brief
for Government). The LTTE is an organization founded in 1976 for
the purpose of creating an independent Tamil state in Sri Lanka. 9
F. Supp. 2d, at 1182; Brief for Government 6. The District
Court in this action found that the PKK and the LTTE engage in
political and humanitarian activities. See 9 F. Supp. 2d, at
1180–1182. The Government has presented evidence that both groups
have also committed numerous terrorist attacks, some of which have
harmed American citizens. See App. 128–133. The LTTE sought
judicial review of its designation as a foreign terrorist
organization; the D. C. Circuit upheld that designation. See People’s Mojahedin Organization of Iran v. Dept. of
State , 182 F. 3d 17, 18–19, 25 (1999). The PKK did not
challenge its designation. 9 F. Supp. 2d, at 1180.

															   Plaintiffs in this litigation are two U. S.
citizens and six domestic organizations: the Humanitarian Law
Project (HLP) (a human rights organization with consultative status
to the United Nations); Ralph Fertig (the HLP’s president, and a
retired administrative law judge); Nagalingam Jeyalingam (a Tamil
physician, born in Sri Lanka and a naturalized U. S. citizen); and
five nonprofit groups dedicated to the interests of persons of
Tamil descent. Brief for Petitioners in No. 09–89, pp. ii, 10
(hereinafter Brief for Plaintiffs); App. 48. In 1998, plaintiffs
filed suit in federal court challenging the constitutionality of
the material-support statute, §2339B. Plaintiffs claimed that they
wished to provide support for the humanitarian and political
activities of the PKK and the LTTE in the form of monetary
contributions, other tangible aid, legal training, and political
advocacy, but that they could not do so for fear of prosecution
under §2339B. 9 F. Supp. 2d, at 1180–1184.[ Footnote 2 ]

															   As relevant here, plaintiffs claimed that the
material-support statute was unconstitutional on two grounds:
First, it violated their freedom of speech and freedom of
association under the First Amendment, because it criminalized
their provision of material support to the PKK and the LTTE,
without requiring the Government to prove that plaintiffs had a
specific intent to further the unlawful ends of those
organizations. Id. , at 1184. Second, plaintiffs argued
that the statute was unconstitutionally vague. Id. , at
1184–1185.

															   Plaintiffs moved for a preliminary injunction,
which the District Court granted in part. The District Court held
that plaintiffs had not established a probability of success on
their First Amendment speech and association claims. See id. , at 1196–1197. But the court held that plaintiffs had
established a probability of success on their claim that, as
applied to them, the statutory terms “personnel” and “training” in
the definition of “material support” were impermissibly vague. See id. , at 1204.

															   The Court of Appeals affirmed. 205 F. 3d
1130, 1138 (CA9 2000). The court rejected plaintiffs’ speech and
association claims, including their claim that §2339B violated the
First Amendment in barring them from contributing money to the PKK
and the LTTE. See id. , at 1133–1136. But the Court of
Appeals agreed with the District Court that the terms “personnel”
and “training” were vague because it was “easy to imagine protected
expression that falls within the bounds” of those terms. Id. , at 1138; see id. , at 1137.

															   With the preliminary injunction issue decided,
the action returned to the District Court, and the parties moved
for summary judgment on the merits. The District Court entered a
permanent injunction against applying to plaintiffs the bans on
“personnel” and “training” support. See No. CV–98–1971 ABC (BQRx),
2001 WL 36105333 (CD Cal., Oct. 2, 2001). The Court of Appeals
affirmed. 352 F. 3d 382 (CA9 2003).

															   Meanwhile, in 2001, Congress amended the
definition of “material support or resources” to add the term
“expert advice or assistance.” Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001 (Patriot Act), §805(a)(2)(B), 115 Stat. 377.
In 2003, plaintiffs filed a second action challenging the
constitutionality of that term as applied to them. 309
F. Supp. 2d 1185, 1192 (CD Cal. 2004).

															   In that action, the Government argued that
plaintiffs lacked standing and that their preenforcement claims
were not ripe. Id. , at 1194. The District Court held that
plaintiffs’ claims were justiciable because plaintiffs had
sufficiently demonstrated a “genuine threat of imminent
prosecution,” id. , at 1195 (internal quotation marks
omitted), and because §2339B had the potential to chill plaintiffs’
protected expression, see id. , at 1197–1198. On the
merits, the District Court held that the term “expert advice or
assistance” was impermissibly vague. Id. , at 1201. The
District Court rejected, however, plaintiffs’ First Amendment
claims that the new term was substantially overbroad and
criminalized associational speech. See id. , at 1202,
1203.

															   The parties cross-appealed. While the
cross-appeals were pending, the Ninth Circuit granted en banc
rehearing of the panel’s 2003 decision in plaintiffs’ first action
(involving the terms “personnel” and “training”). See 382
F. 3d 1154, 1155 (2004). The en banc court heard reargument on
December 14, 2004. See 380 F. Supp. 2d 1134, 1138 (CD Cal.
2005). Three days later, Congress again amended §2339B and the
definition of “material support or resources.” Intelligence Reform
and Terrorism Prevention Act of 2004 (IRTPA), §6603, 118 Stat.
3762–3764.

															   In IRTPA, Congress clarified the mental state
necessary to violate §2339B, requiring knowledge of the foreign
group’s designation as a terrorist organization or the group’s
commission of terrorist acts. §2339B(a)(1). Congress also added the
term “service” to the definition of “material support or
resources,” §2339A(b)(1), and defined “training” to mean
“instruction or teaching designed to impart a specific skill, as
opposed to general knowledge,” §2339A(b)(2). It also defined
“expert advice or assistance” to mean “advice or assistance derived
from scientific, technical or other specialized knowledge.”
§2339A(b)(3). Finally, IRTPA clarified the scope of the term
“personnel” by providing:

															“No person may be prosecuted under [§2339B] in
connection with the term ‘personnel’ unless that person has
knowingly provided, attempted to provide, or conspired to provide a
foreign terrorist organization with 1 or more individuals (who may
be or include himself) to work under that terrorist organization’s
direction or control or to organize, manage, supervise, or
otherwise direct the operation of that organization. Individuals
who act entirely independently of the foreign terrorist
organization to advance its goals or objectives shall not be
considered to be working under the foreign terrorist organization’s
direction and control.” §2339B(h).

															   Shortly after Congress enacted
IRTPA, the en banc Court of Appeals issued an order in plaintiffs’
first action. 393 F. 3d 902, 903 (CA9 2004). The en banc court
affirmed the rejection of plaintiffs’ First Amendment claims for
the reasons set out in the Ninth Circuit’s panel decision in 2000.
See ibid. In light of IRTPA, however, the en banc court
vacated the panel’s 2003 judgment with respect to vagueness, and
remanded to the District Court for further proceedings. Ibid. The Ninth Circuit panel assigned to the
cross-appeals in plaintiffs’ second action (relating to “expert
advice or assistance”) also remanded in light of IRTPA. See 380
F. Supp. 2d, at 1139.

															   The District Court consolidated the two
actions on remand. See ibid. The court also allowed
plaintiffs to challenge the new term “service.” See id. ,
at 1151, n. 24. The parties moved for summary judgment, and the
District Court granted partial relief to plaintiffs on vagueness
grounds. See id. , at 1156.

															   The Court of Appeals affirmed once more. 552
F. 3d 916, 933 (CA9 2009). The court first rejected
plaintiffs’ claim that the material-support statute would violate
due process unless it were read to require a specific intent to
further the illegal ends of a foreign terrorist organization. See id. , at 926–927. The Ninth Circuit also held that the
statute was not overbroad in violation of the First Amendment. See id. , at 931–932. As for vagueness, the Court of Appeals
noted that plaintiffs had not raised a “facial vagueness
challenge.” Id. , at 929, n. 6. The court held that,
as applied to plaintiffs, the terms “training,” “expert advice or
assistance” (when derived from “other specialized knowledge”), and
“service” were vague because they “continue[d] to cover
constitutionally protected advocacy,” but the term “personnel” was
not vague because it “no longer criminalize[d] pure speech
protected by the First Amendment.” Id. , at 929–931.

															   The Government petitioned for certiorari, and
plaintiffs filed a conditional cross-petition. We granted both
petitions. 557 U. S. ___ (2009).

															II

															   Given the complicated 12-year
history of this litigation, we pause to clarify the questions
before us. Plaintiffs challenge §2339B’s prohibition on four types
of material support—“training,” “expert advice or assistance,”
“service,” and “personnel.” They raise three constitutional claims.
First, plaintiffs claim that §2339B violates the Due Process Clause
of the Fifth Amendment because these four statutory terms are
impermissibly vague. Second, plaintiffs claim that §2339B violates
their freedom of speech under the First Amendment. Third,
plaintiffs claim that §2339B violates their First Amendment freedom
of association.

															   Plaintiffs do not challenge the
above statutory terms in all their applications. Rather, plaintiffs
claim that §2339B is invalid to the extent it prohibits them from
engaging in certain specified activities. See Brief for Plaintiffs
16–17, n. 10. With respect to the HLP and Judge Fertig, those
activities are: (1) “train[ing] members of [the] PKK on how to use
humanitarian and international law to peacefully resolve disputes”;
(2) “engag[ing] in political advocacy on behalf of Kurds who live
in Turkey”; and (3) “teach[ing] PKK members how to petition various
representative bodies such as the United Nations for relief.” 552
F. 3d, at 921, n. 1; see 380 F. Supp. 2d, at 1136.
With respect to the other plaintiffs, those activities are: (1)
“train[ing] members of [the] LTTE to present claims for
tsunami-related aid to mediators and international bodies”; (2)
“offer[ing] their legal expertise in negotiating peace agreements
between the LTTE and the Sri Lankan government”; and (3)
“engag[ing] in political advocacy on behalf of Tamils who live in
Sri Lanka.” 552 F. 3d, at 921, n. 1; see 380
F. Supp. 2d, at 1137.

															   Plaintiffs also state that “the LTTE was
recently defeated militarily in Sri Lanka,” so “[m]uch of the
support the Tamil organizations and Dr. Jeyalingam sought to
provide is now moot.” Brief for Plaintiffs 11, n. 5.
Plaintiffs thus seek only to support the LTTE “as a political
organization outside Sri Lanka advocating for the rights of
Tamils.” Ibid. Counsel for plaintiffs specifically stated
at oral argument that plaintiffs no longer seek to teach the LTTE
how to present claims for tsunami-related aid, because the LTTE now
“has no role in Sri Lanka.” Tr. of Oral Arg. 63. For that reason,
helping the LTTE negotiate a peace agreement with Sri Lanka appears
to be moot as well. Thus, we do not consider the application of
§2339B to those activities here.

															   One last point. Plaintiffs seek preenforcement
review of a criminal statute. Before addressing the merits, we must
be sure that this is a justiciable case or controversy under
Article III. We conclude that it is: Plaintiffs face “a credible
threat of prosecution” and “should not be required to await and
undergo a criminal prosecution as the sole means of seeking
relief.” Babbitt v. Farm Workers , 442 U. S. 289 , 298
(1979) (internal quotation marks omitted). See also MedImmune,
Inc. v. Genentech, Inc. , 549 U. S. 118 , 128–129
(2007).

															   Plaintiffs claim that they provided support to
the PKK and the LTTE before the enactment of §2339B and that they
would provide similar support again if the statute’s allegedly
unconstitutional bar were lifted. See 309 F. Supp. 2d, at
1197. The Government tells us that it has charged about 150 persons
with violating §2339B, and that several of those prosecutions
involved the enforcement of the statutory terms at issue here. See
Brief for Government 5. The Government has not argued to this Court
that plaintiffs will not be prosecuted if they do what they say
they wish to do. Cf. Tr. of Oral Arg. 57–58. See Babbitt , supra , at 302. See also Milavetz, Gallop &
Milavetz, P. A. v. United States , 559 U. S. ___,
___, ___ (2010) (slip op., at 4, 19) (considering an as-applied
preenforcement challenge brought under the First Amendment). Based
on these considerations, we conclude that plaintiffs’ claims are
suitable for judicial review (as one might hope after 12 years of
litigation).

															III

															   Plaintiffs claim, as a threshold
matter, that we should affirm the Court of Appeals without reaching
any issues of constitutional law. They contend that we should
interpret the material-support statute, when applied to speech, to
require proof that a defendant intended to further a foreign
terrorist organization’s illegal activities. That interpretation,
they say, would end the litigation because plaintiffs’ proposed
activities consist of speech, but plaintiffs do not intend to
further unlawful conduct by the PKK or the LTTE.

															   We reject plaintiffs’
interpretation of §2339B because it is inconsistent with the text
of the statute. Section 2339B(a)(1) prohibits “knowingly” providing
material support. It then specifically describes the type of
knowledge that is required: “To violate this paragraph, a person
must have knowledge that the organization is a designated terrorist
organization . . ., that the organization has engaged or engages in
terrorist activity …, or that the organization has engaged or
engages in terrorism… .” Ibid. Congress plainly spoke
to the necessary mental state for a violation of §2339B, and it
chose knowledge about the organization’s connection to terrorism,
not specific intent to further the organization’s terrorist
activities.

															   Plaintiffs’ interpretation is also untenable
in light of the sections immediately surrounding §2339B, both of
which do refer to intent to further terrorist activity. See
§2339A(a) (establishing criminal penalties for one who “provides
material support or resources . . . knowing or intending that they
are to be used in preparation for, or in carrying out, a violation
of” statutes prohibiting violent terrorist acts); §2339C(a)(1)
(setting criminal penalties for one who “unlawfully and willfully
provides or collects funds with the intention that such funds be
used, or with the knowledge that such funds are to be used, in full
or in part, in order to carry out” other unlawful acts). Congress
enacted §2339A in 1994 and §2339C in 2002. See §120005(a), 108
Stat. 2022 (§2339A); §202(a), 116 Stat. 724 (§2339C). Yet Congress
did not import the intent language of those provisions into §2339B,
either when it enacted §2339B in 1996, or when it clarified
§2339B’s knowledge requirement in 2004.

															   Finally, plaintiffs give the game away when
they argue that a specific intent requirement should apply only
when the material-support statute applies to speech. There is no
basis whatever in the text of §2339B to read the same provisions in
that statute as requiring intent in some circumstances but not
others. It is therefore clear that plaintiffs are asking us not to
interpret §2339B, but to revise it. “Although this Court will often
strain to construe legislation so as to save it against
constitutional attack, it must not and will not carry this to the
point of perverting the purpose of a statute.” Scales v. United States , 367 U. S. 203 , 211
(1961). Scales is the case on which
plaintiffs most heavily rely, but it is readily distinguishable.
That case involved the Smith Act, which prohibited membership in a
group advocating the violent overthrow of the government. The Court
held that a person could not be convicted under the statute unless
he had knowledge of the group’s illegal advocacy and a specific
intent to bring about violent overthrow. Id. , at 220–222,
229. This action is different: Section 2339B does not criminalize
mere membership in a designated foreign terrorist organization. It
instead prohibits providing “material support” to such a group. See infra , at 20–21, 35. Nothing about Scales suggests the need for a specific intent requirement in such a case.
The Court in Scales , moreover, relied on both statutory
text and precedent that had interpreted closely related provisions
of the Smith Act to require specific intent. 367 U. S., at 209,
221–222. Plaintiffs point to nothing similar here.

															   We cannot avoid the constitutional issues in
this litigation through plaintiffs’ proposed interpretation of
§2339B.[ Footnote 3 ]

															IV

															   We turn to the question whether
the material-support statute, as applied to plaintiffs, is
impermissibly vague under the Due Process Clause of the Fifth
Amendment. “A conviction fails to comport with due process if the
statute under which it is obtained fails to provide a person of
ordinary intelligence fair notice of what is prohibited, or is so
standardless that it authorizes or encourages seriously
discriminatory enforcement.” United States v. Williams , 553 U. S. 285 , 304
(2008). We consider whether a statute is vague as applied to the
particular facts at issue, for “[a] plaintiff who engages in some
conduct that is clearly proscribed cannot complain of the vagueness
of the law as applied to the conduct of others.” Hoffman
Estates v. Flipside, Hoffman Estates, Inc. , 455 U. S. 489 , 495
(1982). We have said that when a statute “interferes with the right
of free speech or of association, a more stringent vagueness test
should apply.” Id. , at 499. “But ‘perfect clarity and
precise guidance have never been required even of regulations that
restrict expressive activity.’ ” Williams , supra , at 304 (quoting Ward v. Rock Against
Racism , 491 U.
S. 781 , 794 (1989)).

															   The Court of Appeals did not
adhere to these principles. Instead, the lower court merged
plaintiffs’ vagueness challenge with their First Amendment claims,
holding that portions of the material-support statute were
unconstitutionally vague because they applied to protected
speech—regardless of whether those applications were clear. The
court stated that, even if persons of ordinary intelligence
understood the scope of the term “training,” that term would
“remai[n] impermissibly vague” because it could “be read to
encompass speech and advocacy protected by the First Amendment.”
552 F. 3d, at 929. It also found “service” and a portion of
“expert advice or assistance” to be vague because those terms
covered protected speech. Id. , at 929–930.

															   Further, in spite of its own statement that it
was not addressing a “facial vagueness challenge,” id. , at
929, n. 6, the Court of Appeals considered the statute’s
application to facts not before it. Specifically, the Ninth Circuit
relied on the Government’s statement that §2339B would bar filing
an amicus brief in support of a foreign terrorist
organization—which plaintiffs have not told us they wish to do, and
which the Ninth Circuit did not say plaintiffs wished to do—to
conclude that the statute barred protected advocacy and was
therefore vague. See id. , at 930. By deciding how the
statute applied in hypothetical circumstances, the Court of
Appeals’ discussion of vagueness seemed to incorporate elements of
First Amendment overbreadth doctrine. See id. , at 929–930
(finding it “easy to imagine” protected expression that would be
barred by §2339B (internal quotation marks omitted)); id. ,
at 930 (referring to both vagueness and overbreadth).

															   In both of these respects, the Court of
Appeals contravened the rule that “[a] plaintiff who engages in
some conduct that is clearly proscribed cannot complain of the
vagueness of the law as applied to the conduct of others.” Hoffman Estates , supra , at 495. That rule makes
no exception for conduct in the form of speech. See Parker v. Levy , 417 U. S. 733 , 755–757
(1974). Thus, even to the extent a heightened vagueness standard
applies, a plaintiff whose speech is clearly proscribed cannot
raise a successful vagueness claim under the Due Process Clause of
the Fifth Amendment for lack of notice. And he certainly cannot do
so based on the speech of others. Such a plaintiff may have a valid
overbreadth claim under the First Amendment, but our precedents
make clear that a Fifth Amendment vagueness challenge does not turn
on whether a law applies to a substantial amount of protected
expression. See Williams , supra , at 304; Hoffman Estates , supra , at 494–495, 497.
Otherwise the doctrines would be substantially redundant.

															   Under a proper analysis, plaintiffs’ claims of
vagueness lack merit. Plaintiffs do not argue that the
material-support statute grants too much enforcement discretion to
the Government. We therefore address only whether the statute
“provide[s] a person of ordinary intelligence fair notice of what
is prohibited.” Williams , 553 U. S., at 304.

															   As a general matter, the statutory terms at
issue here are quite different from the sorts of terms that we have
previously declared to be vague. We have in the past “struck down
statutes that tied criminal culpability to whether the defendant’s
conduct was ‘annoying’ or ‘indecent’—wholly subjective judgments
without statutory definitions, narrowing context, or settled legal
meanings.” Id., at 306; see also Papachristou v. Jacksonville , 405 U. S. 156 , n. 1
(1972) (holding vague an ordinance that punished “vagrants,”
defined to include “rogues and vagabonds,” “persons who use
juggling,” and “common night walkers” (internal quotation marks
omitted)). Applying the statutory terms in this action—“training,”
“expert advice or assistance,” “service,” and “personnel”—does not
require similarly untethered, subjective judgments.

															   Congress also took care to add narrowing
definitions to the material-support statute over time. These
definitions increased the clarity of the statute’s terms. See
§2339A(b)(2) (“ ‘training’ means instruction or teaching
designed to impart a specific skill, as opposed to general
knowledge”); §2339A(b)(3) (“ ‘expert advice or assistance’
means advice or assistance derived from scientific, technical or
other specialized knowledge”); §2339B(h) (clarifying the scope of
“personnel”). And the knowledge requirement of the statute further
reduces any potential for vagueness, as we have held with respect
to other statutes containing a similar requirement. See Hill v. Colorado , 530 U. S. 703 , 732
(2000); Posters ‘N’ Things, Ltd. v. United
States , 511 U.
S. 513 , 523, 526 (1994); see also Hoffman Estates , 455
U. S., at 499.

															   Of course, the scope of the material-support
statute may not be clear in every application. But the dispositive
point here is that the statutory terms are clear in their
application to plaintiffs’ proposed conduct, which means that
plaintiffs’ vagueness challenge must fail. Even assuming that a
heightened standard applies because the material-support statute
potentially implicates speech, the statutory terms are not vague as
applied to plaintiffs. See Grayned v. City of
Rockford , 408
U. S. 104 , 114–115 (1972) (rejecting a vagueness challenge to a
criminal law that implicated First Amendment activities); Scales , 367 U. S., at 223 (same).

															   Most of the activities in which plaintiffs
seek to engage readily fall within the scope of the terms
“training” and “expert advice or assistance.” Plaintiffs want to
“train members of [the] PKK on how to use humanitarian and
international law to peacefully resolve disputes,” and “teach PKK
members how to petition various representative bodies such as the
United Nations for relief.” 552 F. 3d, at 921, n. 1. A
person of ordinary intelligence would understand that instruction
on resolving disputes through international law falls within the
statute’s definition of “training” because it imparts a “specific
skill,” not “general knowledge.” §2339A(b)(2). Plaintiffs’
activities also fall comfortably within the scope of “expert advice
or assistance”: A reasonable person would recognize that teaching
the PKK how to petition for humanitarian relief before the United
Nations involves advice derived from, as the statute puts it,
“specialized knowledge.” §2339A(b)(3). In fact, plaintiffs
themselves have repeatedly used the terms “training” and “expert
advice” throughout this litigation to describe their own proposed
activities, demonstrating that these common terms readily and
naturally cover plaintiffs’ conduct. See, e.g., Brief for
Plaintiffs 10, 11; App. 56, 58, 59, 61, 62, 63, 80, 81, 98, 99,
106, 107, 117.

															   Plaintiffs respond by pointing to hypothetical
situations designed to test the limits of “training” and “expert
advice or assistance.” They argue that the statutory definitions of
these terms use words of degree—like “specific,” “general,” and
“specialized”—and that it is difficult to apply those definitions
in particular cases. See Brief for Plaintiffs 27 (debating whether
teaching a course on geography would constitute training); id. , at 29. And they cite Gentile v. State
Bar of Nev. , 501 U. S. 1030 (1991),
in which we found vague a state bar rule providing that a lawyer in
a criminal case, when speaking to the press, “may state without
elaboration . . . the general nature of the . . . defense.” Id. , at 1048 (internal quotation marks omitted).

															   Whatever force these arguments might have in
the abstract, they are beside the point here. Plaintiffs do not
propose to teach a course on geography, and cannot seek refuge in
imaginary cases that straddle the boundary between “specific
skills” and “general knowledge.” See Parker v. Levy , 417 U. S., at 756. We emphasized this point in Scales , holding that even if there might be theoretical
doubts regarding the distinction between “active” and “nominal”
membership in an organization—also terms of degree—the defendant’s
vagueness challenge failed because his “case present[ed] no such
problem.” 367 U. S., at 223. Gentile was different. There the
asserted vagueness in a state bar rule was directly implicated by
the facts before the Court: Counsel had reason to suppose that his
particular statements to the press would not violate the rule, yet
he was disciplined nonetheless. See 501 U. S., at 1049–1051. We did
not suggest that counsel could escape discipline on vagueness
grounds if his own speech were plainly prohibited.

															   Plaintiffs also contend that they want to
engage in “political advocacy” on behalf of Kurds living in Turkey
and Tamils living in Sri Lanka. 552 F. 3d, at 921, n. 1.
They are concerned that such advocacy might be regarded as
“material support” in the form of providing “personnel” or
“service[s],” and assert that the statute is unconstitutionally
vague because they cannot tell.

															   As for “personnel,” Congress enacted a
limiting definition in IRTPA that answers plaintiffs’ vagueness
concerns. Providing material support that constitutes “personnel”
is defined as knowingly providing a person “to work under that
terrorist organization’s direction or control or to organize,
manage, supervise, or otherwise direct the operation of that
organization.” §2339B(h). The statute makes clear that “personnel”
does not cover independent advocacy: “Individuals who act
entirely independently of the foreign terrorist organization to
advance its goals or objectives shall not be considered to be
working under the foreign terrorist organization’s direction and
control.” Ibid. “[S]ervice” similarly refers to concerted
activity, not independent advocacy. See Webster’s Third New
International Dictionary 2075 (1993) (defining “service” to mean
“the performance of work commanded or paid for by another: a
servant’s duty: attendance on a superior”; or “an act done for the
benefit or at the command of another”). Context confirms that
ordinary meaning here. The statute prohibits providing a service
“ to a foreign terrorist organization.” §2339B(a)(1)
(emphasis added). The use of the word “to” indicates a connection
between the service and the foreign group. We think a person of
ordinary intelligence would understand that independently
advocating for a cause is different from providing a service to a
group that is advocating for that cause.

															   Moreover, if independent activity in support
of a terrorist group could be characterized as a “service,” the
statute’s specific exclusion of independent activity in the
definition of “personnel” would not make sense. Congress would not
have prohibited under “service” what it specifically exempted from
prohibition under “personnel.” The other types of material support
listed in the statute, including “lodging,” “weapons,”
“explosives,” and “transportation,” §2339A(b)(1), are not forms of
support that could be provided independently of a foreign terrorist
organization. We interpret “service” along the same lines. Thus,
any independent advocacy in which plaintiffs wish to engage is not
prohibited by §2339B. On the other hand, a person of ordinary
intelligence would understand the term “service” to cover advocacy
performed in coordination with, or at the direction of, a foreign
terrorist organization.

															   Plaintiffs argue that this construction of the
statute poses difficult questions of exactly how much direction or
coordination is necessary for an activity to constitute a
“service.” See Reply Brief for Petitioners in No. 09–89, p. 14
(hereinafter Reply Brief for Plaintiffs) (“Would any communication
with any member be sufficient? With a leader? Must the
‘relationship’ have any formal elements, such as an employment or
contractual relationship? What about a relationship through an
intermediary?”). The problem with these questions is that they are
entirely hypothetical. Plaintiffs have not provided any specific
articulation of the degree to which they seek to
coordinate their advocacy with the PKK and the LTTE. They have
instead described the form of their intended advocacy only in the
most general terms. See, e.g., Brief for Plaintiffs 10–11
(plaintiffs “would like, among other things, to offer their
services to advocate on behalf of the rights of the Kurdish people
and the PKK before the United Nations and the United States
Congress” (internal quotation marks and alteration omitted)); App.
59 (plaintiffs would like to “write and distribute publications
supportive of the PKK and the cause of Kurdish liberation” and
“advocate for the freedom of political prisoners in Turkey”).

															   Deciding whether activities described at such
a level of generality would constitute prohibited “service[s]”
under the statute would require “sheer speculation”—which means
that plaintiffs cannot prevail in their preenforcement challenge.
See Washington State Grange v. Washington State
Republican Party , 552 U. S. 442 , 454
(2008). It is apparent with respect to these claims that
“gradations of fact or charge would make a difference as to
criminal liability,” and so “adjudication of the reach and
constitutionality of [the statute] must await a concrete fact
situation.” Zemel v. Rusk , 381 U. S. 1 , 20
(1965).

															V

															A

															   We next consider whether the
material-support statute, as applied to plaintiffs, violates the
freedom of speech guaranteed by the First Amendment. Both
plaintiffs and the Government take extreme positions on this
question. Plaintiffs claim that Congress has banned their “pure
political speech.” E.g., Brief for Plaintiffs 2, 25, 43.
It has not. Under the material-support statute, plaintiffs may say
anything they wish on any topic. They may speak and write freely
about the PKK and LTTE, the governments of Turkey and Sri Lanka,
human rights, and international law. They may advocate before the
United Nations. As the Government states: “The statute does not
prohibit independent advocacy or expression of any kind.” Brief for
Government 13. Section 2339B also “does not prevent [plaintiffs]
from becoming members of the PKK and LTTE or impose any sanction on
them for doing so.” Id. , at 60. Congress has not,
therefore, sought to suppress ideas or opinions in the form of
“pure political speech.” Rather, Congress has prohibited “material
support,” which most often does not take the form of speech at all.
And when it does, the statute is carefully drawn to cover only a
narrow category of speech to, under the direction of, or in
coordination with foreign groups that the speaker knows to be
terrorist organizations.[ Footnote
4 ]

															   For its part, the Government
takes the foregoing too far, claiming that the only thing truly at
issue in this litigation is conduct, not speech. Section 2339B is
directed at the fact of plaintiffs’ interaction with the PKK and
LTTE, the Government contends, and only incidentally burdens their
expression. The Government argues that the proper standard of
review is therefore the one set out in United States v. O’Brien , 391 U. S. 367 (1968). In
that case, the Court rejected a First Amendment challenge to a
conviction under a generally applicable prohibition on destroying
draft cards, even though O’Brien had burned his card in protest
against the draft. See id. , at 370, 376, 382. In so doing,
we applied what we have since called “intermediate scrutiny,” under
which a “content-neutral regulation will be sustained under the
First Amendment if it advances important governmental interests
unrelated to the suppression of free speech and does not burden
substantially more speech than necessary to further those
interests.” Turner Broadcasting System, Inc. v. FCC , 520 U.
S. 180 , 189 (1997) (citing O’Brien , supra , at
377).

															   The Government is wrong that the only thing
actually at issue in this litigation is conduct, and therefore
wrong to argue that O’Brien provides the correct standard
of review.[ Footnote 5 ] O’Brien does not provide the applicable standard for
reviewing a content-based regulation of speech, see R. A. V. v. St. Paul , 505 U. S. 377 , 385–386
(1992); Texas v. Johnson , 491 U. S. 397 , 403,
406–407 (1989), and §2339B regulates speech on the basis of its
content. Plaintiffs want to speak to the PKK and the LTTE, and
whether they may do so under §2339B depends on what they say. If
plaintiffs’ speech to those groups imparts a “specific skill” or
communicates advice derived from “specialized knowledge”—for
example, training on the use of international law or advice on
petitioning the United Nations—then it is barred. See Brief for
Government 33–34. On the other hand, plaintiffs’ speech is not
barred if it imparts only general or unspecialized knowledge. See id. , at 32.

															   The Government argues that §2339B should
nonetheless receive intermediate scrutiny because it generally functions as a regulation of conduct. That
argument runs headlong into a number of our precedents, most
prominently Cohen v. California , 403 U. S. 15 (1971). Cohen also involved a generally applicable regulation of
conduct, barring breaches of the peace. See id. , at 16.
But when Cohen was convicted for wearing a jacket bearing an
epithet, we did not apply O’Brien . See 403 U. S., at 16,
18. Instead, we recognized that the generally applicable law was
directed at Cohen because of what his speech communicated—he
violated the breach of the peace statute because of the offensive
content of his particular message. We accordingly applied more
rigorous scrutiny and reversed his conviction. See id. , at
18–19, 26.

															   This suit falls into the same category. The
law here may be described as directed at conduct, as the law in Cohen was directed at breaches of the peace, but as
applied to plaintiffs the conduct triggering coverage under the
statute consists of communicating a message. As we explained in Texas v. Johnson : “If the [Government’s]
regulation is not related to expression, then the less stringent
standard we announced in United States v. O’Brien for regulations of noncommunicative conduct controls. If it is,
then we are outside of O’Brien ’s test, and we must [apply]
a more demanding standard.” 491 U. S., at 403 (citation
omitted).

															B

															   The First Amendment issue before
us is more refined than either plaintiffs or the Government would
have it. It is not whether the Government may prohibit pure
political speech, or may prohibit material support in the form of
conduct. It is instead whether the Government may prohibit what
plaintiffs want to do—provide material support to the PKK and LTTE
in the form of speech.

															   Everyone agrees that the
Government’s interest in combating terrorism is an urgent objective
of the highest order. See Brief for Plaintiffs 51. Plaintiffs’
complaint is that the ban on material support, applied to what they
wish to do, is not “necessary to further that interest.” Ibid. The objective of combating terrorism does not
justify prohibiting their speech, plaintiffs argue, because their
support will advance only the legitimate activities of the
designated terrorist organizations, not their terrorism. Id. , at 51–52.

															   Whether foreign terrorist organizations
meaningfully segregate support of their legitimate activities from
support of terrorism is an empirical question. When it enacted
§2339B in 1996, Congress made specific findings regarding the
serious threat posed by international terrorism. See AEDPA
§§301(a)(1)–(7), 110 Stat. 1247, note following 18 U. S. C.
§2339B (Findings and Purpose). One of those findings explicitly
rejects plaintiffs’ contention that their support would not further
the terrorist activities of the PKK and LTTE: “[F]oreign
organizations that engage in terrorist activity are so tainted by
their criminal conduct that any contribution to such an
organization facilitates that conduct.” §301(a)(7) (emphasis
added).

															   Plaintiffs argue that the reference to “any
contribution” in this finding meant only monetary support. There is
no reason to read the finding to be so limited, particularly
because Congress expressly prohibited so much more than monetary
support in §2339B. Congress’s use of the term “contribution” is
best read to reflect a determination that any form of material
support furnished “to” a foreign terrorist organization should be
barred, which is precisely what the material-support statute does.
Indeed, when Congress enacted §2339B, Congress simultaneously
removed an exception that had existed in §2339A(a) (1994 ed.) for
the provision of material support in the form of “humanitarian
assistance to persons not directly involved in” terrorist activity.
AEDPA §323, 110 Stat. 1255; 205 F. 3d, at 1136. That repeal
demonstrates that Congress considered and rejected the view that
ostensibly peaceful aid would have no harmful effects.

															   We are convinced that Congress was justified
in rejecting that view. The PKK and the LTTE are deadly groups.
“The PKK’s insurgency has claimed more than 22,000 lives.”
Declaration of Kenneth R. McKune, App. 128, ¶5. The LTTE has
engaged in extensive suicide bombings and political assassinations,
including killings of the Sri Lankan President, Security Minister,
and Deputy Defense Minister. Id. , at 130–132; Brief for
Government 6–7. “On January 31, 1996, the LTTE exploded a truck
bomb filled with an estimated 1,000 pounds of explosives at the
Central Bank in Colombo, killing 100 people and injuring more than
1,400. This bombing was the most deadly terrorist incident in the
world in 1996.” McKune Affidavit, App. 131, ¶6.h. It is not
difficult to conclude as Congress did that the “tain[t]” of such
violent activities is so great that working in coordination with or
at the command of the PKK and LTTE serves to legitimize and further
their terrorist means. AEDPA §301(a)(7), 110 Stat. 1247.

															   Material support meant to “promot[e]
peaceable, lawful conduct,” Brief for Plaintiffs 51, can further
terrorism by foreign groups in multiple ways. “Material support” is
a valuable resource by definition. Such support frees up other
resources within the organization that may be put to violent ends.
It also importantly helps lend legitimacy to foreign terrorist
groups—legitimacy that makes it easier for those groups to persist,
to recruit members, and to raise funds—all of which facilitate more
terrorist attacks. “Terrorist organizations do not maintain organizational ‘firewalls’ that would prevent or deter . .
. sharing and commingling of support and benefits.” McKune
Affidavit, App. 135, ¶11. “[I]nvestigators have revealed how
terrorist groups systematically conceal their activities behind
charitable, social, and political fronts.” M. Levitt, Hamas:
Politics, Charity, and Terrorism in the Service of Jihad 2–3
(2006). “Indeed, some designated foreign terrorist organizations
use social and political components to recruit personnel to carry
out terrorist operations, and to provide support to criminal
terrorists and their families in aid of such operations.” McKune
Affidavit, App. 135, ¶11; Levitt, supra , at 2 (“Muddying
the waters between its political activism, good works, and
terrorist attacks, Hamas is able to use its overt political and
charitable organizations as a financial and logistical support
network for its terrorist operations”).

															   Money is fungible, and “[w]hen foreign
terrorist organizations that have a dual structure raise funds,
they highlight the civilian and humanitarian ends to which such
moneys could be put.” McKune Affidavit, App. 134, ¶9. But “there is
reason to believe that foreign terrorist organizations do not
maintain legitimate financial firewalls between those
funds raised for civil, nonviolent activities, and those ultimately
used to support violent, terrorist operations.” Id. , at
135, ¶12. Thus, “[f]unds raised ostensibly for charitable purposes
have in the past been redirected by some terrorist groups to fund
the purchase of arms and explosives.” Id. , at 134, ¶10.
See also Brief for Anti-Defamation League as Amicus Curiae 19–29 (describing fundraising activities by the PKK, LTTE, and
Hamas); Regan v. Wald , 468 U. S. 222 , 243
(1984) (upholding President’s decision to impose travel ban to Cuba
“to curtail the flow of hard currency to Cuba—currency that could
then be used in support of Cuban adventurism”). There is evidence
that the PKK and the LTTE, in particular, have not “respected the
line between humanitarian and violent activities.” McKune
Affidavit, App. 135, ¶13 (discussing PKK); see id. , at 134
(LTTE).

															   The dissent argues that there is “no natural
stopping place” for the proposition that aiding a foreign terrorist
organization’s lawful activity promotes the terrorist organization
as a whole. Post , at 10. But Congress has settled on just
such a natural stopping place: The statute reaches only material
support coordinated with or under the direction of a designated
foreign terrorist organization. Independent advocacy that might be
viewed as promoting the group’s legitimacy is not covered. See supra , at 18–21.[ Footnote
6 ]

															   Providing foreign terrorist groups with
material support in any form also furthers terrorism by straining
the United States’ relationships with its allies and undermining
cooperative efforts between nations to prevent terrorist attacks.
We see no reason to question Congress’s finding that “international
cooperation is required for an effective response to terrorism, as
demonstrated by the numerous multilateral conventions in force
providing universal prosecutive jurisdiction over persons involved
in a variety of terrorist acts, including hostage taking, murder of
an internationally protected person, and aircraft piracy and
sabotage.” AEDPA §301(a)(5), 110 Stat. 1247, note following 18 U.
S. C. §2339B (Findings and Purpose). The material-support
statute furthers this international effort by prohibiting aid for
foreign terrorist groups that harm the United States’ partners
abroad: “A number of designated foreign terrorist organizations
have attacked moderate governments with which the United States has
vigorously endeavored to maintain close and friendly relations,”
and those attacks “threaten [the] social, economic and political
stability” of such governments. McKune Affidavit, App. 137, ¶16.
“[O]ther foreign terrorist organizations attack our NATO allies,
thereby implicating important and sensitive multilateral security
arrangements.” Ibid. For example, the Republic of Turkey—a fellow
member of NATO—is defending itself against a violent insurgency
waged by the PKK. Brief for Government 6; App. 128. That nation and
our other allies would react sharply to Americans furnishing
material support to foreign groups like the PKK, and would hardly
be mollified by the explanation that the support was meant only to
further those groups’ “legitimate” activities. From Turkey’s
perspective, there likely are no such activities. See 352
F. 3d, at 389 (observing that Turkey prohibits membership in
the PKK and prosecutes those who provide support to that group,
regardless of whether the support is directed to lawful
activities).

															C

															   In analyzing whether it is
possible in practice to distinguish material support for a foreign
terrorist group’s violent activities and its nonviolent activities,
we do not rely exclusively on our own inferences drawn from the
record evidence. We have before us an affidavit stating the
Executive Branch’s conclusion on that question. The State
Department informs us that “[t]he experience and analysis of the U.
S. government agencies charged with combating terrorism strongly
suppor[t]” Congress’s finding that all contributions to foreign
terrorist organizations further their terrorism. McKune Affidavit,
App. 133, ¶8. See Winter v. Natural Resources Defense
Council, Inc. , 555 U. S. ___, ___ (2008) (slip op., at 14–15)
(looking to similar affidavits to support according weight to
national security claims). In the Executive’s view: “Given the
purposes, organizational structure, and clandestine nature of
foreign terrorist organizations, it is highly likely that any
material support to these organizations will ultimately inure to
the benefit of their criminal, terrorist functions—regardless of
whether such support was ostensibly intended to support
non-violent, non-terrorist activities.” McKune Affidavit, App. 133,
¶8.

															   That evaluation of the facts by
the Executive, like Congress’s assessment, is entitled to
deference. This litigation implicates sensitive and weighty
interests of national security and foreign affairs. The PKK and the
LTTE have committed terrorist acts against American citizens
abroad, and the material-support statute addresses acute foreign
policy concerns involving relationships with our Nation’s allies.
See id. , at 128–133, 137. We have noted that “neither the
Members of this Court nor most federal judges begin the day with
briefings that may describe new and serious threats to our Nation
and its people.” Boumediene v. Bush , 553 U. S. 723 , 797
(2008). It is vital in this context “not to substitute . . . our
own evaluation of evidence for a reasonable evaluation by the
Legislative Branch.” Rostker v. Goldberg , 453 U. S. 57 , 68
(1981). See Wald , 468 U. S., at 242; Haig v. Agee , 453
U. S. 280 , 292 (1981).

															   Our precedents, old and new, make clear that
concerns of national security and foreign relations do not warrant
abdication of the judicial role. We do not defer to the
Government’s reading of the First Amendment, even when such
interests are at stake. We are one with the dissent that the
Government’s “authority and expertise in these matters do not
automatically trump the Court’s own obligation to secure the
protection that the Constitution grants to individuals.” Post , at 23. But when it comes to collecting evidence and
drawing factual inferences in this area, “the lack of competence on
the part of the courts is marked,” Rostker , supra , at 65, and respect for the Government’s conclusions
is appropriate.

															   One reason for that respect is that national
security and foreign policy concerns arise in connection with
efforts to confront evolving threats in an area where information
can be difficult to obtain and the impact of certain conduct
difficult to assess. The dissent slights these real constraints in
demanding hard proof—with “detail,” “specific facts,” and “specific
evidence”—that plaintiffs’ proposed activities will support
terrorist attacks. See post , at 9, 16, 23. That would be a
dangerous requirement. In this context, conclusions must often be
based on informed judgment rather than concrete evidence, and that
reality affects what we may reasonably insist on from the
Government. The material-support statute is, on its face, a
preventive measure—it criminalizes not terrorist attacks
themselves, but aid that makes the attacks more likely to occur.
The Government, when seeking to prevent imminent harms in the
context of international affairs and national security, is not
required to conclusively link all the pieces in the puzzle before
we grant weight to its empirical conclusions. See Zemel v. Rusk , 381 U. S., at 17 (“[B]ecause of the changeable and
explosive nature of contemporary international relations, . . .
Congress . . . must of necessity paint with a brush broader than
that it customarily wields in domestic areas”).

															   This context is different from that in
decisions like Cohen . In that case, the application of the
statute turned on the offensiveness of the speech at issue.
Observing that “one man’s vulgarity is another’s lyric,” we
invalidated Cohen’s conviction in part because we concluded that
“governmental officials cannot make principled distinctions in this
area.” 403 U. S., at 25. In this litigation, by contrast, Congress
and the Executive are uniquely positioned to make principled
distinctions between activities that will further terrorist conduct
and undermine United States foreign policy, and those that will
not.

															   We also find it significant that Congress has
been conscious of its own responsibility to consider how its
actions may implicate constitutional concerns. First, §2339B only
applies to designated foreign terrorist organizations. There is,
and always has been, a limited number of those organizations
designated by the Executive Branch, see, e.g., 74 Fed.
Reg. 29742 (2009); 62 Fed. Reg. 52650 (1997), and any groups so
designated may seek judicial review of the designation. Second, in
response to the lower courts’ holdings in this litigation, Congress
added clarity to the statute by providing narrowing definitions of
the terms “training,” “personnel,” and “expert advice or
assistance,” as well as an explanation of the knowledge required to
violate §2339B. Third, in effectuating its stated intent not to
abridge First Amendment rights, see §2339B(i), Congress has also
displayed a careful balancing of interests in creating limited
exceptions to the ban on material support. The definition of
material support, for example, excludes medicine and religious
materials. See §2339A(b)(1). In this area perhaps more than any
other, the Legislature’s superior capacity for weighing competing
interests means that “we must be particularly careful not to
substitute our judgment of what is desirable for that of Congress.” Rostker , supra , at 68. Finally, and most
importantly, Congress has avoided any restriction on independent
advocacy, or indeed any activities not directed to, coordinated
with, or controlled by foreign terrorist groups.

															   At bottom, plaintiffs simply disagree with the
considered judgment of Congress and the Executive that providing
material support to a designated foreign terrorist
organization—even seemingly benign support—bolsters the terrorist
activities of that organization. That judgment, however, is
entitled to significant weight, and we have persuasive evidence
before us to sustain it. Given the sensitive interests in national
security and foreign affairs at stake, the political branches have
adequately substantiated their determination that, to serve the
Government’s interest in preventing terrorism, it was necessary to
prohibit providing material support in the form of training, expert
advice, personnel, and services to foreign terrorist groups, even
if the supporters meant to promote only the groups’ nonviolent
ends.

															   We turn to the particular speech plaintiffs
propose to undertake. First, plaintiffs propose to “train members
of [the] PKK on how to use humanitarian and international law to
peacefully resolve disputes.” 552 F. 3d, at 921, n. 1.
Congress can, consistent with the First Amendment, prohibit this
direct training. It is wholly foreseeable that the PKK could use
the “specific skill[s]” that plaintiffs propose to impart,
§2339A(b)(2), as part of a broader strategy to promote terrorism.
The PKK could, for example, pursue peaceful negotiation as a means
of buying time to recover from short-term setbacks, lulling
opponents into complacency, and ultimately preparing for renewed
attacks. See generally A. Marcus, Blood and Belief: The PKK and the
Kurdish Fight for Independence 286–295 (2007) (describing the PKK’s
suspension of armed struggle and subsequent return to violence). A
foreign terrorist organization introduced to the structures of the
international legal system might use the information to threaten,
manipulate, and disrupt. This possibility is real, not remote.

															   Second, plaintiffs propose to “teach PKK
members how to petition various representative bodies such as the
United Nations for relief.” 552 F. 3d, at 921, n. 1. The
Government acts within First Amendment strictures in banning this
proposed speech because it teaches the organization how to acquire
“relief,” which plaintiffs never define with any specificity, and
which could readily include monetary aid. See Brief for Plaintiffs
10–11, 16–17, n. 10; App. 58–59, 80–81. Indeed, earlier in this
litigation, plaintiffs sought to teach the LTTE “to present claims
for tsunami-related aid to mediators and international bodies,” 552
F. 3d, at 921, n. 1, which naturally included monetary
relief. Money is fungible, supra , at 26, and Congress
logically concluded that money a terrorist group such as the PKK
obtains using the techniques plaintiffs propose to teach could be
redirected to funding the group’s violent activities.

															   Finally, plaintiffs propose to “engage in
political advocacy on behalf of Kurds who live in Turkey,” and
“engage in political advocacy on behalf of Tamils who live in Sri
Lanka.” 552 F. 3d, at 921, n. 1. As explained above, supra , at 19–20, plaintiffs do not specify their expected
level of coordination with the PKK or LTTE or suggest what exactly
their “advocacy” would consist of. Plaintiffs’ proposals are
phrased at such a high level of generality that they cannot prevail
in this preenforcement challenge. See supra , at 20; Grange , 552 U. S., at 454; Zemel , 381 U. S., at
20.

															   In responding to the foregoing, the dissent
fails to address the real dangers at stake. It instead considers
only the possible benefits of plaintiffs’ proposed activities in
the abstract. See post , at 13–15. The dissent seems
unwilling to entertain the prospect that training and advising a
designated foreign terrorist organization on how to take advantage
of international entities might benefit that organization in a way
that facilitates its terrorist activities. In the dissent’s world,
such training is all to the good. Congress and the Executive,
however, have concluded that we live in a different world: one in
which the designated foreign terrorist organizations “are so
tainted by their criminal conduct that any contribution to such an
organization facilitates that conduct.” AEDPA §301(a)(7). One in
which, for example, “the United Nations High Commissioner for
Refugees was forced to close a Kurdish refugee camp in northern
Iraq because the camp had come under the control of the PKK, and
the PKK had failed to respect its ‘neutral and humanitarian
nature.’ ” McKune Affidavit, App. 135–136, ¶13. Training and
advice on how to work with the United Nations could readily have
helped the PKK in its efforts to use the United Nations camp as a
base for terrorist activities.

															   If only good can come from training our
adversaries in international dispute resolution, presumably it
would have been unconstitutional to prevent American citizens from
training the Japanese Government on using international
organizations and mechanisms to resolve disputes during World War
II. It would, under the dissent’s reasoning, have been contrary to
our commitment to resolving disputes through “ ‘deliberative
forces,’ ” post , at 13 (quoting Whitney v. California , 274 U. S. 357 , 375
(1927) (Brandeis, J., concurring)), for Congress to conclude that
assisting Japan on that front might facilitate its war effort more
generally. That view is not one the First Amendment requires us to
embrace.

															   All this is not to say that any future
applications of the material-support statute to speech or advocacy
will survive First Amendment scrutiny. It is also not to say that
any other statute relating to speech and terrorism would satisfy
the First Amendment. In particular, we in no way suggest that a
regulation of independent speech would pass constitutional muster,
even if the Government were to show that such speech benefits
foreign terrorist organizations. We also do not suggest that
Congress could extend the same prohibition on material support at
issue here to domestic organizations. We simply hold that, in
prohibiting the particular forms of support that plaintiffs seek to
provide to foreign terrorist groups, §2339B does not violate the
freedom of speech.

															VI

															   Plaintiffs’ final claim is that
the material-support statute violates their freedom of association
under the First Amendment. Plaintiffs argue that the statute
criminalizes the mere fact of their associating with the PKK and
the LTTE, thereby running afoul of decisions like De Jonge v. Oregon , 299 U. S. 353 (1937),
and cases in which we have overturned sanctions for joining the
Communist Party, see, e.g., Keyishian v. Board of Regents of Univ. of State of N. Y. , 385 U. S. 589 (1967); United States v. Robel , 389 U. S. 258 (1967).

															   The Court of Appeals correctly
rejected this claim because the statute does not penalize mere
association with a foreign terrorist organization. As the Ninth
Circuit put it: “The statute does not prohibit being a member of
one of the designated groups or vigorously promoting and supporting
the political goals of the group. . . . What [§2339B] prohibits is
the act of giving material support . . . .” 205 F. 3d, at
1133. Plaintiffs want to do the latter. Our decisions scrutinizing
penalties on simple association or assembly are therefore
inapposite. See, e.g., Robel , supra , at
262 (“It is precisely because th[e] statute sweeps indiscriminately
across all types of association with Communist-action groups,
without regard to the quality and degree of membership, that it
runs afoul of the First Amendment”); De Jonge , supra , at 362.

															   Plaintiffs also argue that the
material-support statute burdens their freedom of association
because it prevents them from providing support to designated
foreign terrorist organizations, but not to other groups. See Brief
for Plaintiffs 56; Reply Brief for Plaintiffs 37–38. Any burden on
plaintiffs’ freedom of association in this regard is justified for
the same reasons that we have denied plaintiffs’ free speech
challenge. It would be strange if the Constitution permitted
Congress to prohibit certain forms of speech that constitute
material support, but did not permit Congress to prohibit that
support only to particularly dangerous and lawless foreign
organizations. Congress is not required to ban material support to
every group or none at all.

															*  *  *

															   The Preamble to the Constitution
proclaims that the people of the United States ordained and
established that charter of government in part to “provide for the
common defence.” As Madison explained, “[s]ecurity against foreign
danger is . . . an avowed and essential object of the American
Union.” The Federalist No. 41, p. 269 (J. Cooke ed. 1961). We hold
that, in regulating the particular forms of support that plaintiffs
seek to provide to foreign terrorist organizations, Congress has
pursued that objective consistent with the limitations of the First
and Fifth Amendments.

															   The judgment of the United States
Court of Appeals for the Ninth Circuit is affirmed in part and
reversed in part, and the cases are remanded for further
proceedings consistent with this opinion.

															It is so ordered. Footnote 1 In full, 18 U. S. C. §2339B(a)(1)
provides: “Unlawful conduct.—Whoever knowingly provides material
support or resources to a foreign terrorist organization, or
attempts or conspires to do so, shall be fined under this title or
imprisoned not more than 15 years, or both, and, if the death of
any person results, shall be imprisoned for any term of years or
for life. To violate this paragraph, a person must have knowledge
that the organization is a designated terrorist organization . . .,
that the organization has engaged or engages in terrorist activity
. . ., or that the organization has engaged or engages in terrorism
. . . .” The terms “terrorist activity” and “terrorism” are defined
in 8 U. S. C. §1182(a)(3)(B)(iii), and 22 U. S. C.
§2656f(d)(2), respectively. Footnote 2 At the time plaintiffs first filed suit, 18
U. S. C. §2339B(a) (2000 ed.) provided: “Whoever, within the
United States or subject to the jurisdiction of the United States,
knowingly provides material support or resources to a foreign
terrorist organization, or attempts or conspires to do so, shall be
fined under this title or imprisoned not more than 10 years, or
both.” See Humanitarian Law Project v. Reno , 9
F. Supp. 2d 1205, 1207 (CD Cal. 1998). And 18 U. S. C.
§2339A(b) (2000 ed.) defined “material support or resources” to
mean “currency or other financial securities, financial services,
lodging, training, safehouses, false documentation or
identification, communications equipment, facilities, weapons,
lethal substances, explosives, personnel, transportation, and other
physical assets, except medicine or religious materials.” Footnote 3 The dissent would interpret the statute along
the same lines as the plaintiffs, to prohibit speech and
association “only when the defendant knows or intends that those
activities will assist the organization’s unlawful terrorist
actions.” Post , at 17 (opinion of Breyer, J.). According
to the dissent, this interpretation is “fairly possible” and
adopting it would avoid constitutional concerns. Ibid. (internal quotation marks omitted). The dissent’s interpretation of
§2339B fails for essentially the same reasons as plaintiffs’.
Congress explained what “knowingly” means in §2339B, and it did not
choose the dissent’s interpretation of that term. In fact, the
dissent proposes a mental-state requirement indistinguishable from
the one Congress adopted in §§2339A and 2339C, even though Congress
used markedly different language in §2339B. Footnote 4 The dissent also analyzes the statute as if
it prohibited “[p]eaceful political advocacy” or “pure speech and
association,” without more. Post , at 9, 17. Section 2339B
does not do that, and we do not address the constitutionality of
any such prohibitions. The dissent’s claim that our decision is
inconsistent with this Court’s cases analyzing those sorts of
restrictions, post , at 11–12, is accordingly
unfounded. Footnote 5 The Government suggests in passing that, to
the extent plaintiffs’ activities constitute speech, that speech is
wholly unprotected by the First Amendment. The Government briefly
analogizes speech coordinated with foreign terrorist organizations
to speech effecting a crime, like the words that constitute a
conspiracy. Brief for Government 46; Reply Brief for Government
31–32, and n. 8. See, e.g., Giboney v. Empire
Storage & Ice Co. , 336 U. S. 490 , 498, 502
(1949). We do not consider any such argument because the Government
does not develop it: The Government’s submission is that applying
§2339B to plaintiffs triggers intermediate First Amendment
scrutiny—not that it triggers no First Amendment scrutiny at
all. Footnote 6 The dissent also contends that the particular
sort of material support plaintiffs seek to provide cannot be
diverted to terrorist activities, in the same direct way as funds
or goods. Post , at 8–9. This contention misses the point.
Both common sense and the evidence submitted by the Government make
clear that material support of a terrorist group’s lawful
activities facilitates the group’s ability to attract “funds,”
“financing,” and “goods” that will further its terrorist acts. See
McKune Affidavit, App. 134–136. 561 U. S. ____ (2010) 561 U. S. ____ (2010) 561 U. S. ____ (2010) SUPREME COURT OF THE UNITED STATES NOS. 08-1498 AND 09-89 ERIC H. HOLDER, Jr., ATTORNEY GENERAL, et al.,
PETITIONERS

															08–1498 v. HUMANITARIAN LAW PROJECT et al. HUMANITARIAN LAW PROJECT, et al., PETITIONERS

															09–89 v. ERIC H. HOLDER, Jr ., ATTORNEY GENERAL,
et al.

															on writs of certiorari to the united states court
of appeals for the ninth circuit

															[June 21, 2010]

															   Justice Breyer, with whom
Justices Ginsburg and Sotomayor join, dissenting.

															   Like the Court, and substantially
for the reasons it gives, I do not think this statute is
unconstitutionally vague. But I cannot agree with the Court’s
conclusion that the Constitution permits the Government to
prosecute the plaintiffs criminally for engaging in coordinated
teaching and advocacy furthering the designated organizations’
lawful political objectives. In my view, the Government has not met
its burden of showing that an interpretation of the statute that
would prohibit this speech- and association-related activity serves
the Government’s compelling interest in combating terrorism. And I
would interpret the statute as normally placing activity of this
kind outside its scope. See Crowell v. Benson , 285 U. S. 22 , 62
(1932); Ashwander v. TVA , 297 U. S. 288 , 346–347
(1936) (Brandeis, J., concurring).

															I

															   The statute before us forbids
“knowingly provid[ing]” “a foreign terrorist organization” with
“material support or resources,” defined to include, among other
things, “training,” “expert advice or assistance,” “personnel,” and
“service.” 18 U. S. C. §§2339B(a)(1), (g)(4); §2339A(b)(1).
The Secretary of State has designated the Kurdistan Workers’ Party
(PKK) and the Liberation Tigers of Tamil Eelam (LTTE) as “foreign
terrorist organizations”—a designation authorized where the
organization is “foreign,” threatens the security of the United
States or its nationals, and engages in “terrorist activity,”
defined to include “any” of such activities as “highjacking” and
“assassination,” or the “use of … any … weapon or dangerous device
… with intent to endanger, directly or indirectly, the safety of
one or more individuals.” 62 Fed. Reg. 52650 (1997); 8 U.
S. C. §1182(a)(3)(B)(iii); 18 U. S. C. §2339B(a)(1).

															   The plaintiffs, all United States
citizens or associations, now seek an injunction and declaration
providing that, without violating the statute, they can (1) “train
members of [the] PKK on how to use humanitarian and international
law to peacefully resolve disputes”; (2) “engage in political
advocacy on behalf of Kurds who live in Turkey”; (3) “teach PKK
members how to petition various representative bodies such as the
United Nations for relief”; and (4) “engage in political advocacy
on behalf of Tamils who live in Sri Lanka.” Humanitarian Law
Project v. Mukasey , 552 F. 3d 916, 921,
n. 1 (CA9 2009); ante , at 9. All these activities are
of a kind that the First Amendment ordinarily protects.

															   In my view, the Government has not made the
strong showing necessary to justify under the First Amendment the
criminal prosecution of those who engage in these activities. All
the activities involve the communication and advocacy of political
ideas and lawful means of achieving political ends. Even the
subjects the plaintiffs wish to teach—using international law to
resolve disputes peacefully or petitioning the United Nations, for
instance—concern political speech. We cannot avoid the
constitutional significance of these facts on the basis that some
of this speech takes place outside the United States and is
directed at foreign governments, for the activities also involve
advocacy in this country directed to our government and its policies. The plaintiffs, for example,
wish to write and distribute publications and to speak before the
United States Congress. App. 58–59.

															   That this speech and association for political
purposes is the kind of activity to which the First
Amendment ordinarily offers its strongest protection is elementary.
See New York Times Co. v. Sullivan , 376 U. S. 254 , 269
(1964) (The First Amendment “ ‘was fashioned to assure
unfettered interchange of ideas for the bringing about of political
and social changes desired by the people’ ” (quoting Roth v. United States , 354 U. S. 476 , 484
(1957)); Lovell v. City of Griffin , 303 U. S. 444 , 452
(1938) (rejecting licensing scheme for distribution of “pamphlets
and leaflets,” “historic weapons in the defense of liberty”); R. A. V. v. St. Paul , 505 U. S. 377 , 422
(1992) (Stevens, J., concurring in judgment) (“Our First Amendment
decisions have created a rough hierarchy in the constitutional
protection of speech” in which “[c]ore political speech occupies
the highest, most protected position”); Hill v. Colorado , 530 U. S. 703 , 787
(2000) (Kennedy, J., dissenting) (“Laws punishing speech which
protests the lawfulness or morality of the government’s own policy
are the essence of the tyrannical power the First Amendment guards
against”); Citizens United v. Federal Election
Comm’n , 558 U. S. ___, ___ (2010) (slip op., at 33) (“If the
First Amendment has any force, it prohibits Congress from fining or
jailing citizens, or associations of citizens, for simply engaging
in political speech”).

															   Although in the Court’s view the statute
applies only where the PKK helps to coordinate a defendant’s
activities, ante , at 21, the simple fact of “coordination”
alone cannot readily remove protection that the First Amendment
would otherwise grant. That amendment, after all, also protects the
freedom of association. See NAACP v. Claiborne
Hardware Co. , 458 U. S. 886 , 911
(1982) (The First Amendment’s protections “of speech, assembly,
association, and petition, ‘though not identical, are
inseparable’ ” (quoting Thomas v. Collins , 323 U. S. 516 ,
530 (1945))); De Jonge v. Oregon , 299 U. S. 353 , 364 (1937) (describing
the “right of peaceable assembly” as “a right cognate to those of
free speech and free presses and … equally fundamental”); see also Roberts v. United States Jaycees , 468 U. S. 609 , 622
(1984). “Coordination” with a political group, like membership,
involves association.

															   “Coordination” with a group that engages in
unlawful activity also does not deprive the plaintiffs of the First
Amendment’s protection under any traditional “categorical”
exception to its protection. The plaintiffs do not propose to
solicit a crime. They will not engage in fraud or defamation or
circulate obscenity. Cf. United States v. Stevens , 559 U. S. ___ , ___ (2010) (slip op., at 5–6)
(describing “categories” of unprotected speech). And the First
Amendment protects advocacy even of unlawful action so
long as that advocacy is not “directed to inciting or producing imminent lawless action and . . . likely to incite or
produce such action.” Brandenburg v. Ohio , 395 U. S. 444 , 447 (1969) (per
curiam) (emphasis added). Here the plaintiffs seek to advocate
peaceful, lawful action to secure political ends;
and they seek to teach others how to do the same. No one contends
that the plaintiffs’ speech to these organizations can be
prohibited as incitement under Brandenburg .

															   Moreover, the Court has previously held that a
person who associates with a group that uses unlawful means to
achieve its ends does not thereby necessarily forfeit the First
Amendment’s protection for freedom of association. See Scales v. United States , 367 U. S. 203 , 229
(1961) (“[Q]uasi-political parties or other groups that may embrace
both legal and illegal aims differ from a technical conspiracy,
which is defined by its criminal purpose”); see also NAACP , supra , at 908 (“The right to associate
does not lose all constitutional protection merely because some
members of the group may have participated in conduct or advocated
doctrine that itself is not protected”). Rather, the Court has
pointed out in respect to associating with a group advocating
overthrow of the Government through force and violence: “If the
persons assembling have committed crimes elsewhere … , they may be
prosecuted for their … violation of valid laws. But it is a
different matter when the State, instead of prosecuting them for
such offenses, seizes upon mere participation in a peaceable
assembly and a lawful public discussion as the basis for a criminal
charge.” De Jonge , supra , at 365 (striking down
conviction for attending and assisting at Communist Party meeting
because “[n]otwithstanding [the party’s] objectives, the defendant
still enjoyed his personal right of free speech and to take part in
peaceable assembly having a lawful purpose”).

															   Not even the “serious and deadly problem” of
international terrorism can require automatic forfeiture
of First Amendment rights. §301(a)(1), 110 Stat. 1247, note
following 18 U. S. C. §2339B. Cf. §2339B(i) (instructing
courts not to “constru[e] or appl[y the statute] so as to abridge
the exercise of right guaranteed under the First Amendment”). After
all, this Court has recognized that not “ ‘[e]ven the war
power … remove[s] constitutional limitations safeguarding essential
liberties.’ ” United States v. Robel , 389 U. S. 258 , 264 (1967) (quoting Home Building & Loan Assn. v. Blaisdell , 290 U. S. 398 ,
426 (1934)). See also Abrams v. United States , 250 U. S. 616 , 628 (1919) (Holmes, J.,
dissenting) (“[A]s against dangers peculiar to war, as against
others, the principle of the right to free speech is always the
same”). Thus, there is no general First Amendment exception that
applies here. If the statute is constitutional in this context, it
would have to come with a strong justification attached.

															   It is not surprising that the majority, in
determining the constitutionality of criminally prohibiting the
plaintiffs’ proposed activities, would apply, not the kind of
intermediate First Amendment standard that applies to conduct, but
“ ‘a more demanding standard.’ ” Ante, at 23
(quoting Texas v. Johnson , 491 U. S. 397 , 403
(1989)). Indeed, where, as here, a statute applies criminal
penalties and at least arguably does so on the basis of
content-based distinctions, I should think we would scrutinize the
statute and justifications “strictly”—to determine whether the
prohibition is justified by a “compelling” need that cannot be
“less restrictively” accommodated. See Houston v. Hill , 482
U. S. 451 , 459 (1987) (criminal penalties); Ashcroft v. American Civil Liberties Union , 535 U. S. 564 , 573
(2002) (content-based); Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd. , 502 U. S. 105 , 118
(1991) (same); Consolidated Edison Co. of N. Y. v. Public Serv. Comm’n of N. Y. , 447 U. S. 530 , 540
(1980) (strict scrutiny); First Nat. Bank of Boston v. Bellotti , 435 U. S. 765 , 786
(1978) (same).

															   But, even if we assume for argument’s sake
that “strict scrutiny” does not apply, no one can deny that we must
at the very least “measure the validity of the means adopted by
Congress against both the goal it has sought to achieve and the
specific prohibitions of the First Amendment.” Robel , supra, 268, n. 20 (describing constitutional task
where the Court is faced “with a clear conflict between a federal
statute enacted in the interests of national security and an
individual’s exercise of his First Amendment rights”). And here I
need go no further, for I doubt that the statute, as the Government
would interpret it, can survive any reasonably applicable First
Amendment standard. See, e.g., Turner Broadcasting
System, Inc. v. FCC , 520 U. S. 180 , 189
(1997) (describing intermediate scrutiny). Cf. Nixon v. Shrink Missouri Government PAC , 528 U. S. 377 , 402
(2000) (Breyer, J., concurring) (examining whether a statute worked
speech-related harm “out of proportion to the statute’s salutary
effects upon” other interests).

															   The Government does identify a compelling
countervailing interest, namely, the interest in protecting the
security of the United States and its nationals from the threats
that foreign terrorist organizations pose by denying those
organizations financial and other fungible resources. I do not
dispute the importance of this interest. But I do dispute whether
the interest can justify the statute’s criminal prohibition. To put
the matter more specifically, precisely how does application of the
statute to the protected activities before us help achieve that important security-related end? See Simon &
Schuster, 502 U. S., at 118 (requiring that “narrowly drawn”
means further a “compelling state interest” by the least
restrictive means (internal quotation marks omitted)); Turner , supra , at 189 (requiring “advance[ment
of] important governmental interests unrelated to the suppression
of free speech” without “burden[ing] substantially more speech than
necessary to further those interests”); Robel , supra, at 268, n. 20 (requiring measurement of the
“means adopted by Congress against … the [security] goal it has
sought to achieve”). See also Nixon , 528 U. S., at 402
(Breyer, J., concurring); Federal Election Comm’n v. Wisconsin Right to Life, Inc. , 551 U. S. 449 , 478
(2007) (opinion of Roberts, C. J.) (“A court … must ensure
that [the interest justifying a stat- utory restriction] supports each application of [the] statute”).

															   The Government makes two efforts to answer
this question. First , the Government says that the
plaintiffs’ support for these organizations is “fungible” in the
same sense as other forms of banned support. Being fungible, the
plaintiffs’ support could, for example, free up other resources,
which the organization might put to terrorist ends. Brief for
Respondents in No. 09–89, pp. 54–56 (hereinafter Government
Brief).

															   The proposition that the two very different
kinds of “support” are “fungible,” however, is not obviously true. There is no obvious way in which
undertaking advocacy for political change through peaceful means or
teaching the PKK and LTTE, say, how to petition the United Nations
for political change is fungible with other resources that might be
put to more sinister ends in the way that donations of money, food,
or computer training are fungible. It is far from obvious that
these advocacy activities can themselves be redirected, or will
free other resources that can be directed, towards terrorist ends.
Thus, we must determine whether the Government has come forward
with evidence to support its claim.

															   The Government has provided us with no
empirical information that might convincingly support this claim.
Instead, the Government cites only to evidence that Congress was
concerned about the “fungible” nature in general of resources,
predominately money and material goods. It points to a
congressional finding that “foreign organizations that engage in
terrorist activity are so tainted by their criminal conduct that
any contribution to such an organization facilitates that
conduct.” §301(a)(7), 110 Stat. 1247, note following 18 U.
S. C. §2339B (emphasis added). It also points to a House
Report’s statement that “supply[ing] funds , goods , or services ” would “hel[p] defray the cost
to the terrorist organization of running the ostensibly legitimate
activities,” and “in turn fre[e] an equal sum that can then be
spent on terrorist activities.” H. R. Rep. No. 104–383,
p. 81 (1995) (emphasis added). Finally, the Government refers
to a State Department official’s affidavit describing how
ostensibly charitable contributions have either been “redirected”
to terrorist ends or, even if spent charitably, have
“unencumber[ed] funds raised from other sources for use in
facilitating violent, terrorist activities and gaining political
support for these activities.” Declaration of Kenneth R. McKune,
App. 134, 136 (emphasis added).

															   The most one can say in the Government’s favor
about these statements is that they might be read as
offering highly general support for its argument. The statements do
not, however, explain in any detail how the plaintiffs’
political-advocacy-related activities might actually be “fungible”
and therefore capable of being diverted to terrorist use. Nor do
they indicate that Congress itself was concerned with “support” of
this kind. The affidavit refers to “funds,” “financing,” and
“goods”—none of which encompasses the plaintiffs’ activities. Ibid. The statutory statement and the House Report use
broad terms like “contributions” and “services” that might be construed as encompassing the plaintiffs’ activities. But in
context, those terms are more naturally understood as referring to
contributions of goods, money, or training and other services (say,
computer programming) that could be diverted to, or free funding
for, terrorist ends. See infra , at 15–16. Peaceful
political advocacy does not obviously fall into these categories.
And the statute itself suggests that Congress did not intend to
curtail freedom of speech or association. See §2339B(i) (“Nothing
in this section shall be construed or applied so as to abridge the
exercise of rights guaranteed under the First Amendment”); see also infra , at 18–19. Second , the Government says that the
plaintiffs’ proposed activities will “bolste[r] a terrorist
organization’s efficacy and strength in a community” and
“undermin[e] this nation’s efforts to delegitimize and
weaken those groups.” Government Brief 56 (emphasis added). In
the Court’s view, too, the Constitution permits application of the
statute to activities of the kind at issue in part because those
activities could provide a group that engages in terrorism with
“legitimacy.” Ante , at 25. The Court suggests that, armed
with this greater “legitimacy,” these organizations will more
readily be able to obtain material support of the kinds Congress
plainly intended to ban—money, arms, lodging, and the like. See ibid. Yet the Government does not claim that the
statute forbids any speech “legitimating” a terrorist
group. Rather, it reads the statute as permitting (1) membership in
terrorist organizations, (2) “peaceably assembling with members of
the PKK and LTTE for lawful discussion,” or (3) “independent
advocacy” on behalf of these organizations. Government Brief 66,
61, 13. The Court, too, emphasizes that activities not
“ coordinated with ” the terrorist groups are not banned.
See ante , at 21, 26, 31 (emphasis added). And it argues
that speaking, writing, and teaching aimed at furthering a
terrorist organization’s peaceful political ends could “mak[e] it
easier for those groups to persist, to recruit members, and to
raise funds.” Ante, at 25.

															   But this “legitimacy” justification cannot by
itself warrant suppression of political speech, advocacy, and
association. Speech, association, and related activities on behalf
of a group will often, perhaps always, help to legitimate that
group. Thus, were the law to accept a “legitimating” effect, in and
of itself and without qualification, as providing sufficient
grounds for imposing such a ban, the First Amendment battle would
be lost in untold instances where it should be won. Once one
accepts this argument, there is no natural stopping place. The
argument applies as strongly to “independent” as to “coordinated”
advocacy. But see ante, at 26–27. That fact is reflected
in part in the Government’s claim that the ban here, so supported,
prohibits a lawyer hired by a designated group from filing on
behalf of that group an amicus brief before the United
Nations or even before this Court. See Tr. of Oral Arg. 47–49,
53.

															   That fact is also reflected in the difficulty
of drawing a line designed to accept the legitimacy argument in
some instances but not in others. It is inordinately difficult to
distinguish when speech activity will and when it will not initiate
the chain of causation the Court suggests—a chain that leads from
peaceful advocacy to “legitimacy” to increased support for the
group to an increased supply of material goods that support its
terrorist activities. Even were we to find some such line of
distinction, its application would seem so inherently uncertain
that it would often, perhaps always, “chill” protected speech
beyond its boundary. In short, the justification, put forward
simply in abstract terms and without limitation, must always , or it will never , be sufficient. Given
the nature of the plaintiffs’ activities, “always” cannot possibly
be the First Amendment’s answer.

															   Regardless, the “legitimacy” justification
itself is inconsistent with critically important First Amendment
case law. Consider the cases involving the protection the First
Amendment offered those who joined the Communist Party intending
only to further its peaceful activities. In those cases, this Court
took account of congressional findings that the Communist Party not
only advocated theoretically but also sought to put into practice
the overthrow of our Government through force and violence. The
Court had previously accepted Congress’ determinations that the
American Communist Party was a “Communist action organization”
which (1) acted under the “control, direction, and discipline” of
the world Communist movement, a movement that sought to employ
“espionage, sabotage, terrorism, and any other means deemed
necessary, to establish a Communist totalitarian dictatorship,” and
(2) “endeavor[ed]” to bring about “the overthrow of existing
governments by . . . force if necessary.” Communist Party of
United States v. Subversive Activities Control Bd. , 367 U. S. 1 , 5–6
(1961) (internal quotation marks omitted).

															   Nonetheless, the Court held that the First
Amendment protected an American’s right to belong to that
party—despite whatever “legitimating” effect membership might have
had—as long as the person did not share the party’s unlawful
purposes. See, e.g., De Jonge , 299 U. S. 353 ; Scales , 367 U.
S., at 228–230; Elfbrandt v. Russell , 384 U. S. 11 , 17 (1966); Keyishian v. Board of Regents of Univ. of State of N.
Y. , 385 U. S.
589 , 605–610 (1967); Robel , 389 U. S. 258 (holding that national
security interests did not justify overbroad criminal prohibition
on members of Communist-affiliated organizations working in any
defense-related facility). As I have pointed out, those cases draw
further support from other cases permitting pure advocacy of even
the most unlawful activity—as long as that advocacy is not
“directed to inciting or producing imminent lawless action and …
likely to incite or produce such action.” Brandenburg , 395
U. S., at 447. The Government’s “legitimating” theory would seem to
apply to these cases with equal justifying force; and, if
recognized, it would have led this Court to conclusions other than
those it reached.

															   Nor can the Government overcome these
considerations simply by narrowing the covered activities to those
that involve coordinated , rather than independent, advocacy. Conversations, discussions, or
logistical arrangements might well prove necessary to carry out the
speech-related activities here at issue (just as conversations and
discussions are a necessary part of membership in any
organization). The Government does not distinguish this kind of
“coordination” from any other. I am not aware of any form of words
that might be used to describe “coordination” that would not, at a
minimum, seriously chill not only the kind of activities the
plaintiffs raise before us, but also the “independent advocacy” the
Government purports to permit. And, as for the Government’s
willingness to distinguish independent advocacy from coordinated advocacy, the former is more likely,
not less likely, to confer legitimacy than the latter.
Thus, other things being equal, the distinction “coordination”
makes is arbitrary in respect to furthering the statute’s purposes.
And a rule of law that finds the “legitimacy” argument adequate in
respect to the latter would have a hard time distinguishing a
statute that sought to attack the former.

															   Consider the majority’s development of the
Government’s themes. First, the majority discusses the plaintiffs’
proposal to “ ‘train members of [the] PKK on how to use
humanitarian and international law to peacefully resolve
disputes.’ ” Ante , at 31–32 (quoting 552 F. 3d,
at 921, n. 1). The majority justifies the criminalization of
this activity in significant part on the ground that “peaceful
negotiation[s]” might just “bu[y] time … , lulling opponents into
complacency.” Ante, at 32. And the PKK might use its new
information about “the structures of the international legal system
… to threaten, manipulate, and disrupt.” Ibid. What is one to say about these
arguments—arguments that would deny First Amendment protection to
the peaceful teaching of international human rights law on the
ground that a little knowledge about “the international legal
system” is too dangerous a thing; that an opponent’s subsequent
willingness to negotiate might be faked, so let’s not teach him how
to try? What might be said of these claims by those who live, as we
do, in a Nation committed to the resolution of disputes through
“deliberative forces”? Whitney v. California , 274 U. S. 357 ,
375 (1927) (Brandeis, J., concurring).

															   In my own view, the majority’s arguments
stretch the concept of “fungibility” beyond constitutional limits.
Neither Congress nor the Government advanced these particular
hypothetical claims. I am not aware of any case in this Court—not Gitlow v. New York , 268 U. S. 652 (1925),
not Schenck v. United States , 249 U. S. 47 (1919), not Abrams , 250 U. S. 616 , not the later
Communist Party cases decided during the heat of the Cold War—in
which the Court accepted anything like a claim that speech or
teaching might be criminalized lest it, e.g. , buy
negotiating time for an opponent who would put that time to bad
use.

															   Moreover, the risk that those who are taught
will put otherwise innocent speech or knowledge to bad use is
omnipresent, at least where that risk rests on little more than
(even informed) speculation. Hence to accept this kind of argument
without more and to apply it to the teaching of a subject such as
international human rights law is to adopt a rule of law that,
contrary to the Constitution’s text and First Amendment precedent,
would automatically forbid the teaching of any subject in a case
where national security interests conflict with the First
Amendment. The Constitution does not allow all such conflicts to be
decided in the Government’s favor.

															   The majority, as I have said, cannot limit the
scope of its arguments through its claim that the plaintiffs remain
free to engage in the protected activity as long as it is not
“coordinated.” That is because there is no practical way to
organize classes for a group (say, wishing to learn about human
rights law) without “ coordination .” Nor can the majority
limit the scope of its argument by pointing to some special
limiting circumstance present here. That is because the only
evidence the majority offers to support its general claim consists
of a single reference to a book about terrorism, which the
Government did not mention, and which apparently says no more than
that at one time the PKK suspended its armed struggle and then
returned to it.

															   Second, the majority discusses the plaintiffs’
proposal to “ ‘teach PKK members how to petition various
representative bodies such as the United Nations for
relief .’ ” Ante , at 32 (quoting 552 F. 3d,
at 921, n. 1; emphasis added). The majority’s only argument
with respect to this proposal is that the relief obtained “could
readily include monetary aid,” which the PKK might use to buy guns. Ante , at 32. The majority misunderstands the word
“relief.” In this context, as the record makes clear, the
word “relief” does not refer to “money.” It refers to recognition
under the Geneva Conventions. See App. 57–58 (2003 Complaint); id., at 79–80 (1998 Complaint); id., at 113
(Fertig Declaration); see also Tr. of Oral Arg. 63 (plaintiffs’
counsel denying that plaintiffs seek to teach about obtaining
relief in the form of money).

															   Throughout, the majority emphasizes that it
would defer strongly to Congress’ “informed judgment.” See, e.g., ante , at 30. But here, there is no evidence
that Congress has made such a judgment regarding the specific
activities at issue in these cases. See infra , at 20–21.
In any event, “whenever the fundamental rights of free speech and
assembly are alleged to have been invaded, it must remain open [for
judicial determination] whether there actually did exist at the
time a clear danger; whether the danger, if any, was imminent; and
whether the evil apprehended was one so substantial as to justify
the stringent restriction interposed by the legislature.” Whitney , supra , at 378–379 (Brandeis, J.,
concurring). In such circumstances, the “judicial function commands
analysis of whether the specific conduct charged falls within the
reach of the statute and if so whether the legislation is consonant
with the Constitution.” Landmark Communications, Inc. v. Virginia , 435 U. S. 829 , 844
(1978). Hence, a legislative declaration “does not preclude enquiry
into the question whether, at the time and under the circumstances,
the conditions existed which are essential to validity under the
Federal Constitution .” Whitney , supra , at 378;
see also Landmark, supra , at 843 (“Deference to a
legislative finding cannot limit judicial inquiry when First
Amendment rights are at stake”).

															   I concede that the Government’s expertise in
foreign affairs may warrant deference in respect to many matters, e.g. , our relations with Turkey. Cf. ante , at
27–28. But it remains for this Court to decide whether the
Government has shown that such an interest justifies criminalizing
speech activity otherwise protected by the First Amendment. And the
fact that other nations may like us less for granting that
protection cannot in and of itself carry the day.

															   Finally, I would reemphasize that neither the
Government nor the majority points to any specific facts that show
that the speech-related activities before us are fungible in some special way or confer some special legitimacy
upon the PKK. Rather, their arguments in this respect are general
and speculative. Those arguments would apply to virtually all
speech-related support for a dual-purpose group’s peaceful
activities (irrespective of whether the speech-related activity is
coordinated). Both First Amendment logic and First Amendment case
law prevent us from “sacrific[ing] First Amendment protections for
so speculative a gain.” Columbia Broadcasting System, Inc. v. Democratic National Committee , 412 U. S. 94 , 127 (1973);
see also Consolidated Edison Co. , 447 U. S., at 543
(rejecting proffered state interest not supported in record because
“[m]ere speculation of harm does not constitute a compelling state
interest”).

															II

															   For the reasons I have set forth,
I believe application of the statute as the Government interprets
it would gravely and without adequate justification injure
interests of the kind the First Amendment protects. Thus, there is
“a serious doubt” as to the statute’s constitutionality. Crowell , 285 U. S., at 62. And where that is so, we must
“ascertain whether a construction of the statute is fairly possible
by which the question may be avoided.” Ibid.; see also Ashwander , 297 U. S., at 346–348 (Brandeis, J.,
concurring); Zadvydas v. Davis , 533 U. S. 678 , 689
(2001); United States v. X-Citement Video, Inc. , 513 U. S. 64 , 78
(1994); United States v. Jin Fuey Moy , 241 U. S. 394 , 401
(1916).

															   I believe that a construction
that would avoid the constitutional problem is “fairly possible.”
In particular, I would read the statute as criminalizing
First-Amendment-protected pure speech and association only when the
defendant knows or intends that those activities will assist the
organization’s unlawful terrorist actions. Under this reading, the
Government would have to show, at a minimum, that such defendants
provided support that they knew was significantly likely to help
the organization pursue its unlawful terrorist aims.

															   A person acts with the requisite knowledge if
he is aware of (or willfully blinds himself to) a significant
likelihood that his or her conduct will materially support the
organization’s terrorist ends. See Allen v. United
States , 164 U.
S. 492 , 496 (1896); cf. ALI, Model Penal Code §2.02(2)(b)(ii)
(1962). See also United States v. Santos , 553 U. S. 507 ,
521 (2008) (plurality opinion); cf. Model Penal Code §2.02(7)
(willful blindness); S. Rep. No. 95–605, pt. 1,
pp. 59–60 (1977). A person also acts with the requisite intent
if it is his “conscious objective” (or purpose) to further those
same terrorist ends. See United States v. Bailey , 444 U. S. 394 ,
408 (1980); Model Penal Code §§2.02(2)(a) and 2.02(5) (“When acting
knowingly suffices to establish an element, such element also is
established if a person acts purposely”). On the other hand, for
the reasons I have set out, see supra, at 9–12, knowledge
or intent that this assistance (aimed at lawful activities) could
or would help further terrorism simply by helping to legitimate the
organization is not sufficient.

															   This reading of the statute protects those who
engage in pure speech and association ordinarily protected by the
First Amendment. But it does not protect that activity where a
defendant purposefully intends it to help terrorism or where a
defendant knows (or willfully blinds himself to the fact) that the
activity is significantly likely to assist terrorism. Where the
activity fits into these categories of purposefully or knowingly
supporting terrorist ends, the act of providing material support to
a known terrorist organization bears a close enough relation to
terrorist acts that, in my view, it likely can be prohibited
notwithstanding any First Amendment interest. Cf. Brandenburg, 395 U. S. 444 . At the same
time, this reading does not require the Government to undertake the
difficult task of proving which, as between peaceful and
nonpeaceful purposes, a defendant specifically preferred; knowledge
is enough. See Bailey , supra, at 405 (defining
specific intent).

															   This reading is consistent with the statute’s
text. The statute prohibits “ knowingly provid[ing] material support or resources to a foreign terrorist
organization.” §2339B(a)(1) (emphasis added). Normally we read a
criminal statute as applying a mens rea requirement to all
of the subsequently listed elements of the crime. See Flores - Figueroa v. United States , 556 U.
S. ___, ___ (2009) (slip op., at 6–7). So read, the defendant would
have to know or intend (1) that he is providing support or
resources, (2) that he is providing that support to a foreign
terrorist organization , and (3) that he is providing support
that is material, meaning (4) that his support bears a
significant likelihood of furthering the organization’s terrorist
ends.

															   This fourth requirement flows directly from
the statute’s use of the word “material.” That word can mean being
of a physical or worldly nature, but it also can mean “being of
real importance or great consequence.” Webster’s Third New
International Dictionary 1392 (1961). Here, it must mean the
latter, for otherwise the statute, applying only to physical aid,
would not apply to speech at all. See also §2339A(b)(1) (defining
“ ‘material support or resources’ ” as “any property, tangible or intangible ” (emphasis added)). And if the
statute applies only to support that would likely be of real
importance or great consequence, it must have importance or
consequence in respect to the organization’s terrorist activities.
That is because support that is not significantly likely to help
terrorist activities, for purposes of this statute, neither has
“importance” nor is of “great consequence.”

															   The statutory definition of “material support”
poses no problem. The statute defines “material support” through
reference to a list of terms, including those at issue
here—“training,” “expert advice or assistance,” “personnel,” and
“service.” §2339B(g)(4); §2339A(b)(1). Since these latter terms all
fall under the definition of the term “ material support,”
these activities fall within the statute’s scope only when they too
are “material.” Cf. Stevens , 559 U. S., at ___ (slip op.,
at 12) (citing Leocal v. Ashcroft , 543 U. S. 1 , 11 (2004)
(definitional phrase may take meaning from the term to be
defined)).

															   Thus, textually speaking, a statutory
requirement that the defendant knew the support was
material can be read to require the Government to show that the
defendant knew that the consequences of his acts had a significant
likelihood of furthering the organization’s terrorist, not just its
lawful, aims.

															   I need not decide whether this is the only
possible reading of the statute in cases where “material support”
takes the form of “currency,” “property,” “monetary instruments,”
“financial securities,” “financial services,” “lodging,”
“safehouses,” “false documentation or identification,” “weapons,”
“lethal substances,” or “explosives,” and the like. §2339A(b)(1).
Those kinds of aid are inherently more likely to help an
organization’s terrorist activities, either directly or because
they are fungible in nature. Thus, to show that an individual has
provided support of those kinds will normally prove sufficient for
conviction (assuming the statute’s other requirements are met). But
where support consists of pure speech or association, I would
indulge in no such presumption. Rather, the Government would have
to prove that the defendant knew he was providing support
significantly likely to help the organization pursue its unlawful
terrorist aims (or, alternatively, that the defendant intended the
support to be so used).

															   The statute’s history strongly supports this
reading. That history makes clear that Congress primarily sought to
end assistance that takes the form of fungible donations of money
or goods. See, e.g., H. R. Rep. No. 104–383, at 38,
43–45, 81; supra , at 8–9. It shows that Congress, when
referring to “expert services and assistance” for example, had in
mind training that was sufficiently fungible to further terrorism
directly, such as an aviation expert’s giving “advice” that
“facilitat[es] an aircraft hijacking” or an accountant’s giving
“advice” that will “facilitate the concealment of funds used to
support terrorist activities.” Hearing on Administration’s Draft
Anti-Terrorism Act of 2001 before the House Committee on the
Judiciary, 107th Cong., 1st Sess., 61 (2001).

															   And the Chairman of the Senate Committee on
the Judiciary, when reporting the relevant bill from Committee,
told the Senate:

															“This bill also includes provisions making it a
crime to knowingly provide material support to the terrorist
functions of foreign groups designated by a Presidential
finding to be engaged in terrorist activities.” 142 Cong. Rec.
S3354 (1996) (statement of Sen. Hatch) (emphasis added).

															He then added:

															“I am convinced we have crafted a narrow but
effective designation provision which meets these obligations while safeguarding the freedom to associate, which none of
us would willingly give up.” Id. , at S3360.

															Consistent with this view, the statute itself
says:

															“Nothing in this section shall be construed or
applied so as to abridge the exercise of rights guaranteed under
the First Amendment to the Constitution of the United States.”
§2339B(i).

															   In any event, the principle of
constitutional avoidance demands this interpretation. As Part II
makes clear, there is a “serious” doubt—indeed, a “grave”
doubt—about the constitutionality of the statute insofar as it is
read to criminalize the activities before us. Crowell , 285
U. S., at 62; see also Ashwander , 297 U. S., at 346–348
(Brandeis, J., concurring); Jin Fuey Moy , 241 U. S., at
401. We therefore must “read the statute to eliminate” that
constitutional “doub[t] so long as such a reading is not plainly
contrary to the intent of Congress.” X-Citement Video,
Inc. , 513 U. S., at 78.

															   For this reason, the majority’s statutory
claim that Congress did not use the word “knowingly” as I would use
it, ante , at 12–13, and n. 3, is beside the point.
Our consequent reading is consistent with the statute’s text; it is
consistent with Congress’ basic intent; it interprets but does not
significantly add to what the statute otherwise contains. Cf. e.g., United States v. Thirty-seven
Photographs , 402 U. S. 363 , 373–374
(1971) (constitutionally compelled to add requirement that
“forfeiture proceedings be commenced within 14 days and completed
within 60 days” despite absence of any statutory time limits); NLRB v. Catholic Bishop of Chicago , 440 U. S. 490 , 507
(1979) (constitutionally compelled to interpret “employer” as
implicitly excluding “church-operated schools” despite silence and
eight other different but explicit exceptions). We should adopt
it.

															III

															   Having interpreted the statute to
impose the mens rea requirement just described, I would
remand the cases so that the lower courts could consider more
specifically the precise activities in which the plaintiffs still
wish to engage and determine whether and to what extent a grant of
declaratory and injunctive relief were warranted. I do not see why
the majority does not also remand the cases for consideration of
the plaintiffs’ activities relating to “advocating” for the
organizations’ peaceful causes. See ante , at 19–20,
32–33.

															   The majority does not remand,
apparently because it believes the plaintiffs lose automatically in
that these “advocacy” claims are too general. It adds that the
plaintiffs did not “suggest what exactly their ‘advocacy’ would
consist of.” Ante, at 33. But the majority is wrong about
the lack of specificity. The record contains complaints and
affidavits, which describe in detail the forms of advocacy these
groups have previously engaged in and in which they would like to
continue to engage. See App. 56–63, 78–87, 95–99, 110–123.

															   Moreover, the majority properly rejects the
Government’s argument that the plaintiffs’ speech-related
activities amount to “conduct” and should be reviewed as such.
Government Brief 44–57. Hence, I should think the majority would
wish the lower courts to reconsider this aspect of the cases,
applying a proper standard of review. See, e.g., Philip Morris USA v. Williams, 549 U. S. 346 , 357–358
(2007); Johnson v. California 543 U. S. 499 , 515
(2005); cf. Ricci v. DeStefano , 557 U. S. ___,
___ (2009) (slip op., at 25) (Ginsburg, J., dissenting) (“When this
Court formulates a new legal rule, the ordinary course is to remand
and allow the lower courts to apply the rule in the first
instance”).

															IV

															   In sum, these cases require us to
consider how to apply the First Amendment where national security
interests are at stake. When deciding such cases, courts are aware
and must respect the fact that the Constitution entrusts to the
Executive and Legislative Branches the power to provide for the
national defense, and that it grants particular authority to the
President in matters of foreign affairs. Nonetheless, this Court
has also made clear that authority and expertise in these matters
do not automatically trump the Court’s own obligation to secure the
protection that the Constitution grants to individuals. Cf. Hamdi v. Rumsfeld , 542 U. S. 507 , 536
(2004) (“We have long since made clear that a state of war is not a
blank check … when it comes to the rights of th[is] Nation’s
citizens”). In these cases, for the reasons I have stated, I
believe the Court has failed to examine the Government’s
justifications with sufficient care. It has failed to insist upon
specific evidence, rather than general assertion. It has failed to
require tailoring of means to fit compelling ends. And ultimately
it deprives the individuals before us of the protection that the
First Amendment demands.

															   That is why, with respect, I
dissent.

Summary: In *Holder v. Humanitarian Law Project*, the Supreme Court upheld a federal law prohibiting the provision of "material support or resources" to foreign terrorist organizations, even if the support is intended to promote lawful, non-violent purposes. The Court found that the law did not violate the First Amendment right to freedom of speech and association, as it was focused on the conduct of providing support rather than the content of any speech. The Court also concluded that the law was not too vague and provided sufficient notice of the prohibited conduct. However, the Court left open the possibility of addressing more complex cases that may arise under the statute in the future.