## Facts

- Congress enacted AEDPA, including 8 U.S.C. § 1189 (FTO designations) and 18 U.S.C. § 2339B (criminalizing provision of “material support or resources” to an FTO).
- The Secretary of State designated the PKK and LTTE as foreign terrorist organizations.
- Humanitarian and advocacy organizations and individuals sought to provide money, training, and advice aimed at what they described as the groups’ nonviolent humanitarian and political activities.
- Plaintiffs alleged § 2339B’s severe penalties, combined with an asserted lack of a clear scienter requirement tied to terrorist status or designation, chilled intended advocacy and association.
- Plaintiffs brought suit seeking injunctive relief against enforcement of § 2339B as applied to their proposed support.
- The appeal concerned whether a § 2339B prosecution must prove the defendant’s knowledge of the organization’s designation or terrorist activities.

## Issues

1. Whether 18 U.S.C. § 2339B requires the government to prove, as an element, that a defendant knew the recipient organization was an FTO or knew of the organization’s terrorist activities.
2. Whether construing § 2339B to permit conviction without such knowledge would raise serious First Amendment (speech/association) and Fifth Amendment (due process/fair notice) concerns.

## Decision

- The Ninth Circuit held that § 2339B must be construed to include a knowledge requirement.
- The government must prove the defendant knew the organization was designated as an FTO, or knew the organization engaged in terrorist activity or terrorism.
- With that limiting construction, the court upheld § 2339B against the asserted constitutional objections presented on appeal.
- A dissent would not have added a further mens rea element beyond the statute’s “knowingly” language.

## Legal Principles

- When a criminal statute is susceptible to more than one plausible reading, courts may adopt a construction that avoids serious constitutional problems.
- In the First Amendment context, imposing criminal punishment for support to an organization’s lawful activities, absent knowledge of the organization’s terrorist status or conduct, risks chilling protected speech and association.
- Due process requires fair notice and weighs against treating a serious criminal prohibition as effectively strict liability as to the facts that make the conduct wrongful.
- For § 2339B (as construed in this decision), conviction requires proof the defendant knew of the recipient’s FTO designation or terrorist activity/terrorism, not merely that the defendant intentionally provided support.

## Conclusion

The Ninth Circuit construed the federal material-support statute to require proof that a provider of support knew the recipient was an FTO or engaged in terrorism, using constitutional-avoidance reasoning to address asserted First Amendment chilling effects and Fifth Amendment fair-notice concerns while otherwise sustaining § 2339B.


Humanitarian Law Project v. U.S. Dep’t of Just., 352 F.3d 382 (9th Cir. 2003)