Humanitarian Law Project v. United States Treasury Department

Before HARRY PREGERSON and RYMER, PAMELA Judges, ANN Circuit KORMAN,** R. EDWARD District Judge. RYMER;

Opinion by Judge Dissent Judge PREGERSON.

RYMER, Judge: Circuit We are asked to invalidate the Presi- authority dent’s designate to terrorist or- ganizations when there is an extraordinary threat to security, national as well as the Secretary Treasury’s authorization designate to organizations; further and to declare that a providing ban on “services” to, of, or for the organizations, benefit such is unconstitutionally vague and overbroad. September the wake of George President W. Bush declared a na- and, emergency tional invoking powers by in him vested International Eco- (IEEPA), nomic Act Powers 50 U.S.C. seq., et and the United Nations (UNPA), Participation Act 287c, signed Executive Order 13224. The property Executive Order blocks twenty-seven designated terrorists, Secretary authorizes the of the Treasury designate to others whom the Secretary Cole, Georgetown University David Law for, acting providing sup- determines to be Center, D.C., Washington, plain- for the to, port or services or are otherwise associ- with, tiffs-appellants. designated persons. ated Waldman, (HLP)1 Department Joshua Project The Humanitarian Law Justice, Division, D.C.; Washington, Civil wants to support lawful activities of two ** Korman, Sangam, Nagalingam Edward Jey- Honorable R. Senior Ilankai Thamil Dr. Judge United States District for the Eastern alingam, the Tamil Welfare and Human York, sitting by designation. District of New Committee, Rights and the World Tamil Coor- dinating We Committee. will refer to them Project joined Law The Humanitarian in appeal by Ralph Fertig, the action and on challenges set preenforcement as for- ments designated are

organizations Rights Anchorage Equal Kurdis- out in Thomas organizations eign terrorist —the (9th Commission, Cir.2000), (PKK) Turkey, and 220 F.3d 1134 in Party tan Worker’s HLP likewise Elam conclude that apply. of Tamil We Tigers the Liberation have to (LTTE) injury-in-fact respect It claims to Lanka. cannot show in Sri of fear it has never doing licensing regulations so out as deterred denied, HLP, too, designated for, a license. We will be or been applied Execu- pursuant court that the organization agree with the district also terrorist reg- implementing and its terrorist Secretary’s authority designate tive Order services of ulations, provides if HLP crite- adequately constrained groups is LTTE. Conse- PKK and the Similarly, to the sort ria in the Executive Order. action to chal- brought this quently, designated organiza- on “services” ban Fifth Amendment First and lenge, on unconstitutionally vague; “ser- is not tions authority to des- the President’s grounds, enough delineated clearly are vices” under as terrorists ignate organizations regulations person for a examples UNPA; Secretary of the IEEPA and what ordinary intelligence to understand authority from the Treasury’s designation permitted. HLP of activities are not kind 13224; Executive Order under President in- speech such as protected worries that providing Order’s ban the Executive advocacy may caught dependent organiza- designated services net, interpret does not but the tions; licensing scheme regulatory and the Finally, we. way, nor do the ban may apply for organizations under which required for that no mens rea is hold that are engage activities permission criminal provisions, civil and its IEEPA’s prohibited. otherwise concerns provisions raise no constitutional willfulness, knowledge they include opin as published court held

The district unlawfulness, as an element. Accord- contest standing that HLP lacks to ions authority licensing we affirm. ingly, or the the President’s scheme; rejected its contention and I authority, Secretary’s designation services, unconstitutionally is the ban on HLP the first time that and This is not Project Law v. infirm. Humanitarian gov- have collided over the government Treasury, 463 Dep’t States United non-terrorist power regulate ernment’s (C.D.Cal.2006); Humani F.Supp.2d 1049 organizations. activities in aid of terrorist Project Dep’t tarian Law v. United States against took on the ban previously HLP (C.D.Cal. Treasury, F.Supp.2d 1099 support and resources providing material 2007). in the organizations foreign terrorist Penalty Death Antiterrorism and Effective that the agree with the district court We 104-132, (AEDPA), Pub.L. No. Act of 1996 Project Law lacks Humanitarian amendment, and its Stat. the President’s and Terrorism Intelligence Reform authority HLP has never been because (IRTPA), see 18 U.S.C. Prevention Act designa- or threatened with designated, history § That is recounted 2339B. tion, disagree it. on account of We Mukasey, Project Law Humanitarian self-censorship suf- contention that HLP’s (9th Cir.2009) (HLP 552 F.3d 920-24 IEEPA on injury-in-fact because fices III) (amending opinion filed December speech, but con- regulate its face does not 2007). involving a different stat- Therefore, Though standing require- duct. or HLP. collectively Project, as the Humanitarian Law HLP III and Hu text, protected expression between unpro- different and

ute with Reno, Project v. Law tected conduct. Id. at 1137-38. manitarian Cir.2000) (HLP I), inform some (9th (on HLP I interlocutory After appeal) parties in this case and both of the issues (on HLP III appeal and before from sum- we have held. draw succor from what mary judgment), Congress amended the anyone AEDPA made it a crime for definition of “material support or re- provide support “material knowingly include, among sources” to things, other foreign organiza- to a terrorist resources” prohibition against an additional providing designated by of State. tion designated “service” to a foreign terrorist 1189(a)(1); 18 U.S.C. III, HLP organization. at 233913(a). argued HLP that AEDPA Responding process to HLP’s due argu- association, imposed guilt by and was un- ment, we specific declined to read a intent constitutionally vague and overbroad. We requirement statute, into the revised as it rejected right argu- HLP’s of association already required knowledge that the or- I, holding ment in that the statute ganization to which material support was prohibited giving sup- “the act of material designated foreign offered was a port, right and there is no constitutional to organization. Id. at 926. However, by giving facilitate terrorism terrorists the that prohibitions providing held “train- explosives with which to car- weapons ing,” assistance,” “expert advice or “ser- I, grisly their ry out missions.” “personnel” vice” and designated or- pointed F.3d at 1133. We out advoca- ganizations unconstitutionally were vague cy is different from donations of material because these terms could be read en- as support, expressive conduct is different compassing speech and advocacy protect- pure speech, “money fungible; Id. at 928- ed the First Amendment. giving support organiza- intended to aid an 30. We declined to hold AEDPA’s peaceful up tion’s activities frees resources against providing ban “material that can be used for terrorist acts.” Id. overbroad, resources” was as it was not 1136. We also noted that AEDPA did not expressive rather, aimed at conduct but se, regulate speech per or association I, stopping we said “at aid to rejected argument HLP’s that the Secre- Id. groups.” terrorist at (quoting 931-32 tary of State had unfettered discretion to I, 1135). 205 at a designate group foreign a as IEEPA, 1977, which was enacted in was Id. at 1136-37. organization. heldWe litigation. not at issue in the earlier It Secretary’s authority that the to designate authority vests the President with to deal only groups engage those in terrorist any “unusual extraordinary and sufficiently activities cabined his discre- threat” to the security national whose However, agreed tion. with HLP that source in whole or part substantial is out components support”— two of “material States, side of the United if the “training” “personnel” and uncon- President —were stitutionally a vague uncertainty emergency. because declares national 50 U.S.C. 1701(a).2 § about what was meant could blur the line IEEPA mandates that States, part 2. IEEPA was enacted in 1977 to amend stantial outside the United to the Act, which, turn, security, foreign policy, Trading Enemy economy national With the in or 1701(a). § of the United States.” 50 U.S.C. was enacted in 1917 and amended in 1933. authority, may: Under 5(b). the President app. § IEEPA authorizes the emergency President to declare a national "to [I]nvestigate, during pendency block any extraordinary investigation, regulate, deal with unusual and an direct and com- threat, void, pel, nullify, prevent prohibit, any its in which has source whole or sub- or 1140 security.” to the national every dinary threat Congress “in consult must

President 13224, Fed.Reg. 49079 No. exercising his Exec. Order instance” before possible 2001); Proclamation No. 1703(a), (Sept. see also and the Presi- § authority, id. 2001) Fed.Reg. (Sept. periodi- are to be reviewed actions dent’s 1622(b). emergency). The Ex- (declaring national § id. When cally by Congress, declared, property all ecutive Order blocked emergency national such are in the United States of may interests that President that the provides IEEPA listed in an annex attached foreign persons any transac- regulations to “block” issue it, by the Secre- persons determined any property in to to ... respect tion “with Treasury to act for or on behalf tary of the country or a national any foreign which listed, persons and of persons of those any Id. interest!!]” has thereof in, 1702(a)(1)(B). However, by Secretary “to assist determined the President’s § financial, material, provide regulating sponsor, authority not extend to does for, food, or financial or clothing, technological support donations prohibiting of, services to or such acts medicine, used to relieve other intended to be or “to persons terrorism or those listed” the President de- of suffering, human unless per- with those would “seri- be otherwise associated” that such donations termines 1(a), (c), § any sons. Exec. Order No. ability to deal with ously impair his 1702(b)(2). (d)(i)-(ii). addition, the Executive Or- § emergency.” Id. national any transaction blocked prohibited Presi- der provides “[t]he Section including provision of “services including property, may regulations, issue such dent definitions, may persons or for the benefit of those list- regulations prescribing 2(a). § found that the au- ed.” Id. The President necessary for the exercise of ” type specified of the making § Id. 1704. The donations granted.... thorities ($250,000, seriously impair ability his to deal penalty would provides Act for civil emergency declared culpable of the trans- with the national or twice the amount Finally, § action), 1705(b), the order. Id. the President pen- and a criminal id. (a Treasury fine of not authorized alty for willful violations actions, $1,000,000 including pro- “to take such imprisonment more than both), and to mulgation regulations, of rules and years, more than 20 id. 1705(c). granted to the Presi- employ powers all may be dent IEEPA and UNPA as 23, 2001, September President On necessary carry purposes out the of this authority his un- George W. Bush invoked § 7. listed order.” Id. The President IEEPA, UNPA, Constitution, der in the twenty-seven groups individuals and “grave that the acts of terrorism and found annex, and later Fed.Reg. and threats of terrorism committed for- and its amended it to include the Taliban terrorists, at- eign including the terrorist leader, Mohammed Omar. See Exec. Order York, Pennsylvania, in and the tacks New 2, (July Fed.Reg. No. 67 44751 Pentagon September committed on 2002). 2001,” continuing and the and immediate By regulation, any person group or further attacks on the United threat of by States, property is blocked reason of “an unusual and extraor- whose constitute use, by any any holding, withholding, or a national thereof has interest acquisilion, transfer, withdrawal, transportation, impor- respect any property, person, with to or of, in, dealing exportation or tation or or subject jurisdiction of the United to the right, power, privilege exercising any or .... States to, involving, respect or transactions 1702(a)(1)(B). § country any any foreign property in which “specially plementing provi- it. This action attacks known as a Executive Order is terrorist,” sions in both. global SDGT. designated Treasury regulations § 594.310. C.F.R. brought parties The cross-motions for that are forbid examples of “services” give summary ul- judgment. The district court 594.406(b),3 den, § and define 31 C.F.R. timately challenge dismissed HLP’s to the with,” “to otherwise associated the term designation authority and to President’s regulations § 594.316.4 Other 31 C.F.R. regulatory licencing scheme for failure group provide person injury-in-fact. to establish The court ini- may seek adminis designated as an SDGT tially found that the “otherwise associated reconsideration, 31 C.F.R. trative with” in the Executive Order was provision 594.201(a) 3, Fed.Reg. § n. available at 72 unconstitutionally vague on its face and (Jan. 2007); 501.807, § 31 C.F.R. overbroad, 1070-71, at F.Supp.2d but licenses Department grant and allow ruling changed reconsidered that and it transac case-by-case permit basis to defects, 594.316, § after which cured the prohibited otherwise be tions that would in the meantime. was issued Order, Executive 31 C.F.R. under F.Supp.2d 1104-07. The court denied 594.501, motion, §§ 501.801-02. granted judgment HLP’s in government’s favor on HLP’s remain- designated PKK LTTE are ing claims. the non HLP wishes to SDGTs.5 by timely groups provid appealed. activities of these has violent aid, money, engineering humanitarian ing II support, psy as well as technological Lanka counseling areas of Sri chological HLP maintains that it has stand tsunami, training human by affected ing designa the President’s alternatives, peace assistance with rights authority tion under IEEPA because it legal help, and assis making negotiations, credibly engages fears that if it before international appearing might tance in activities that be deemed benefit HLP asserts that with the PKK or the lawmaking bodies. be associated LTTE, doing being designated from so Exec it risks itself.6 has been inhibited view, im- First Amendment regulations and the HLP’s utive Order 13324 may They designated by Secretary regulation persons were so states: "U.S. 3. The not, except pursuant as authorized that both met the State after he determined financial, accounting, part, provide legal, 1(b) § Executive Order 13224. criteria in forwarding, brokering, freight transportation, (Office Fed.Reg. 12633-34 educational, relations, public or other services Counterterrorism, Dep't of Coordinator For person property or interests in to a whose State, 19, 2002). March pursuant property are blocked essentially pursuant parallel acted to an Stale 594.406(b). 594.201(a).” § § Sec- 31 C.F.R. foreign under which the assets of scheme 594.201(a) regulation tion is the foundational organizations blocked and U.S. are provisions basically blocking tracks the rendering persons prohibited them are of the Executive Order. 1189; support. material See 8 U.S.C. U.S.C. 2339B. provides: 4. Section 594.316 with,” be otherwise associated The term "to suggestion court im- 6. HLP's that the district 594.201(a)(4)(h), used in means: Secretary’s standing properly control; considered (a) or To own or (b) arguments a for reconsideration on motion attempt, conspire with one or To or to fails, continuing a persons, or on behalf of or as all courts have obli- more to act for material, financial, technolog- provide or gation jurisdiction. to assess support, financial or other services ical to. point Nor it designated as an SDGT. does in Pro- articulated doctrine as California being Getman, 1088, any specific warning or threat 328 F.3d v. Council Life that (9th There is no evidence Cir.2003), Regardless, designated. controls. organizations HLP is to the submits, a facial similar may pursue it designated by have individuals who grants as IEEPA vagueness President, engages that it in con to the President sweeping discretion censor, down, organizations. similar to those disfa- duct or shut allows him to designated twenty-seven groups President groups. political vored 11, just September after and individuals analysis starts Any pre-enforcement 2002, July in but no and added two more in Thomas. decision with our en banc designations further have been made an There, sought to strike down landlords circumstances, years since. In these law on First housing discrimination Alaska say designa that the threat of we cannot speech and free religion Amendment “credible,” “imaginary tion is instead However, no 220 F.3d at 1138. grounds. Thomas, 220 F.3d at 1140 speculative.” complained had ever prospective tenant Farm (quoting Babbitt v. United Workers landlords, complaint against a or filed Union, 289, 298, 99 S.Ct. Nat'l at 1137. The state had never them. Id. (1979)). 2301, 60 L.Ed.2d 895 or enforced investigated practices, rental open leaves the door criminally; only sought it had to While Thomas the law twice, challenges to laws that pre-enforcement civilly the law and even enforce then, allegedly infringe upon constitutional only once was the issue of freedom of rights, En id. at 1137 n. and we walked Id. at 1140-41. religion raised. Council, it in through threatened nor im forcement was neither California Pro-Life not a Council considered three factors this is minent. We California Pro-Life non-profit corpo- was a of the claimed case. The Council evaluating genuineness plain positions ration took California prosecution: threat of “whether at 1091. plan’ propositions. a to ballot 328 F.3d tiffs have articulated ‘concrete Act im- question, whether the The California Political Reform violate the law posed campaign reporting communicat burdensome prosecuting authorities have “independent ex- warning obligations or threat to initiate disclosure specific ed It history past prose penditures.” Id. at 1092. was aimed proceedings, and directly speech, the chal the Council’s whose cution or enforcement under coming for the lenged (citing proposed statute.” Id. at 1139 San communication Reno, an ex- arguably “independent v. election was Diego County Rights Gun Comm. (9th Cir.1996)). 1121, 1126-27 subject reporting Ap penditure” to the Act’s 98 F.3d factors, Id. at 1093. requirements. these we concluded that the and disclosure plying circumstances, In these we concluded that dispute hypothetical was and the landlords’ constitutionally had suffered a injury speculative. was See also Sacks v. Council Control, injury self-censorship Foreign sufficient Assets Office of (9th Cir.2006) pursue vagueness (dismissing gave chal at 1094-95. lenge challenge. to travel restrictions issued under Id. plaintiff IEEPA because the had failed to Political Reform Unlike the California specific warning establish “a or threat to Act, directly polit at core which was aimed proceedings”

initiate under the Thomas expres IEEPA is not aimed at speech, ical factors). Council, sion. See Cal. Pro-Life Am. Booksellers (citing Virginia at 1095 The Thomas factors lead to the same Ass'n, 383, 392, conclusion, 108 S.Ct. here. HLP has never been (1988)). 1209, (1974), Nothing on the face S.Ct. 39 L.Ed.2d 505 L.Ed.2d 782 and implicates First Amendment of IEEPA City v. Diego, Nunez San F.3d 935 President, simply It allows the rights.7 (9th Cir.1997). support We see no for emergencies, to peacetime national during position Steffel, HLP’s in either case. In any to ... respect transactions “with block specific warnings, there were threats of any foreign country or a in which property enforcement, prosecution plain any national thereof has interest.” handbilling companion tiffs under a local 1702(a)(1)(B).8 by § con Further U.S.C. trespass ordinance before suit was Council, to trast to Pro-Life California 459, brought. 415 U.S. at 94 S.Ct. 1209. any injury as a result the extent has chilling This was more than mere effect. IEEPA, is, That because is indirect. J., (Stewart, at Id. 94 S.Ct. 1209 con directly at IEEPA is not aimed HLP’s (noting that curring) petitioner the “suc expression, injury-in-fact does not come objectively ceeded in showing that designation from IEEPA or from IEEPA’s arrest, threat of imminent corroborated President, authority but from the to companion the actual arrest of his ... authority to President’s a genuine demonstrated threat of enforce Secretary. suggestion There is no ment” a disputed statute and created an standing pursue desig to lacks state) controversy actual concrete with the nation; indeed, the district court and we (internal omitted). Nunez, quotations Secretary’s address its concerns with the But authority on the merits. neither self- the curfew ordinance on its face was “di subjective chill is the func censorship nor narrowly specifically expres rected at equivalent tional of a well-founded fear of sion or public conduct[access forums] when the face enforcement statute its commonly expression.” associated with activity. regulate expressive does not Nunez, (internal 114 F.3d at 950 quotation omitted).9 so, and citation This is not true of says always pointing this isn’t Thompson, v. 94 IEEPA. Steffel I, orders, rules, (observing regulations may 7. See HLP 205 F.3d 1133-34 such as him, right prescribed by prohibit, that there is no First Amendment nor ... in whole any right part, other constitutional ter or in economic ... relations between rorists); Agency Islamic Am. v. Gon any foreign country national thereof Relief zales, (D.C.Cir.2007) 477 F.3d 736-37 any person therein and the United States (holding blocking order does not violate any person subject jurisdiction Amendment); Holy thereof, the First Land Found. involving any property subject Ashcroft, v. & Dev. jurisdiction of the United States. Relief (D.C.Cir.2003) (rejecting First Amendment 287c(a). order). blocking to IEEPA 9. American-Arab Anti-Discrimination Comm. UNPA, (9th Cir.1991), Thornburgh, 8. Nor is the under which the President 970 F.2d 501 acted, mentions, speech. aimed also at HLP's That Act which HLP also is not to the con There, simply implement trary. plaintiffs authorizes the sought President to we found who Security by taking U.N. parts Council measures to invalidate of the McCarran-Walter actions, including prohibiting though certain eco- they Act met the test even any foreign country nomic currently subject challenged relations between were not to the persons subject or national and to United provisions actually and had not committed jurisdiction. States See 22 U.S.C. 287c. thought We their forbidden acts. claimed provides: The statute injury merely hypo threat of future was not conjectural they already upon thetical or had the United States is called [WJhenever charged violating Security challenged Council to [United Nations] provisions; charges dropped, apply while the were measures which said Council has de- may, they dropped cided ... the President ... under were for tactical reasons not facially Even if must clude that injury-in- the statute cover HLP cannot establish speech closely fact, conduct for its related and the challenge lacks forward, challenge to HLP go submits that authority. President’s designation IEEPA qualifies because it nevertheless

grants unbridled discretion to the Ill Presi- dent against to discriminate or- disfavored HLP argues that the Executive Order this, ganizations. For HLP on City relies gives unconstitutionally Secretary dis- Lakewood v. Plain Dealer Publishing of Co., penalize cretion to and shut down individu- 108 S.Ct. 100 als groups and on the basis of constitution- (1988). City L.Ed.2d 771 Lakewood of activities, ally protected any type without involved a to an ordinance con- scienter, and leaves uncertain what it ferring significant city discretion on offi- with, of, can conjunction do in or on behalf approve design cials to and placement of the LTTE PKK. and news racks. Id. at 108 S.Ct. 2138. Thus, expressly ordinance covered A activities, speech challenged and could be the overarching makes submission facially; explained, as the Court this made that Secretary’s authority to designate it different grants of standardless groups that engaged have never in terror- activities, discretion covering other which ist activity is unconstitutionally vague must and as-applied. be challenged Id. at 756 AEDPA, argues overbroad. It n. also that S.Ct. 2138. Just with the Secre- I, tary’s at issue in designation authority IEEPA regu- “does not under Ex- speech late per association se.” 205 ecutive Order falls short of the conditions Hence, F.3d at 1136-37. the standardless under AEDPA approved that we in HLP cases, discretion typified City Lake- I. Specifically, posits that under wood, do not apply. Order, Executive the Secretary may desig- individuals, nate just foreign domestic not Finally, HLP suggested argument entities as is the case under AEDPA. that we should not find a standing problem Further, view, its Executive Order in this case as the court saw none in HLP designation persons authorizes or- I or HLP III. not persuasive, This is how- ever, ganizations any for finding they the law at in HLP without issue I and III AEDPA, terrorism, was engaged which itself banned material whereas re- AEDPA terrorists, quires established the to have reasonable Secretary’s ability designate terrorists grounds to that an organization believe has pursuant to it. There is no comparable engaged in terrorist acts. HLP also faults provision IEEPA. the breadth Secretary’s authority in a group can be designat- sum, agree we with the district ed under the activity Executive Order for analysis. court’s IEEPA does not on its steps removed from face implicate rights. First Amendment activity, for example, attempting The harm as- self-censorship present is not sist here. HLP someone who designated, has not been else has been designated nor threatened prosecution merely providing with imminent assistance to ter- designation. reasons, For these group. Finally, we con- rorist that the asserts they thought inapplicable.

because scriptive, they were persons within the fell class of holding, at 508. After so proscribes, noted that whose conduct statute and the even plaintiffs government if the had already proceedings had instituted under charged, regulatory pro- the statute is i't. Id. 2003). Thus, Secretary’s designation a the may designate without state- Secretary reasons, charges, or an adminis- ment of authority unconstitutionally vague. is not justifying designation. the trative decision designation authority Nor is the I is that HLP The short answer unconstitutionally prevail overbroad. To a floor for the purport to set does not on a facial overbreadth to a law authority; constitutionality designation of conduct, regulating aimed at HLP must what AEDPA merely found sufficient

we show that the Executive Order a “punishes this, the Executive Or Beyond required. amount of protected ‘substantial’ free of constrain the exercise discre der does speech, ‘judged in relation to the statute’s to find that requires tion. It ” plainly legitimate sweep.’ Virginia organization is “owned or v. person or Hicks, 113, 118-19, for or on by,” controlled or behalf “aet[s] U.S. 123 S.Ct. financial, of,” SDGTs, “provide[s] (2003) or else L.Ed.2d (quoting for, material, technological support or or Oklahoma, 601, 615, Broadrick v. support to or in financial or other services (1973)). 93 S.Ct. 37 L.Ed.2d 830 SDGTs, of,” terrorism or acts of acts of suggest does not how of “otherwise associated with” SDGTs. groups under individuals the Exec l(c)-(d). 13224, § These are Exec. Order utive Order can be if unconstitutional Secretary’s checks on the discre sufficient groups aiding sup individuals are They allay tion to constitutional concerns. token, By the porting terrorists. same fact that the light are reasonable there is no reason to think that an “infinite regulation, a Executive Order is conduct regression designations,” HLP puts speech explained not a restriction. As we it, implicates process designa due if each I, “right provide in HLP there is no in turn impermissible tion is based on deal buy resources with which terrorists can ings an SDGT. weapons explosives.” 1133. The restrictions the Executive B stopping aimed at aid to terror

Order are Therefore, pur order ists. “serves facial as-applied mounts chal to the of the ex poses unrelated content lenges imposed by to the ban the Execu (internal pression.” Id. at 1135 citation l(d)(i) tive Order on “services.”10 Section omitted). Moreover, quotation permits the Executive Order Secre subject Secretary’s designations are to re tary individuals and entities designate consideration, after which written deci “provide who ... financial or other ser furnished, sion must be 31 C.F.R. to or in acts of vices of’ terrorism 501.807(d), subject judicial § and are 2(a) prohibits and SDGTs. And transac see, review, e.g., Agen Islamic Am. Relief persons or (D.C.Cir. tions U.S. within the United Gonzales, cy v. 477 F.3d 728 Found, States, ... 2007); “including but not limited to Holy Land & for Relief (D.C.Cir. Ashcroft, v. F.3d 156 services to or for the benefit of’ an SDGT. Dev. argument suggested with” an 10. At oral that it "otherwise associated SDGT in challenged court, the ban on “material seriously press had also district does not l(d)(i) support” to SDGTs in of the Execu- (It footnote.) appeal. issue on alludes to it in a However, we see tive Order. no reference pursued, To the extent we would in event provision complaint in the or briefs. As by the court affirm for reasons stated district us, properly express the issue is not before granting in its order reconsideration. opinion it. We also note that even no on F.Supp.2d at 1104-07. though being HLP did contest the ban on

i HLP maintains that “services” ban vague at issue here is even more than the sufficiently “A statute must AEDPA that was ban “service” deemed persons ‘ordinary to allow clear so as in HLP III for unconstitutional two rea- opportunity intelligence reasonable ” AEDPA applies only sons: While to ser- prohibited.’ City know what is Foti provided designated entity, vices “to” a (9th Park, 629, 638 Menlo 146 F.3d Cir. implement- Executive Order 13224 and its 1998) Grayned City Rock (quoting v. of ing regulations prohibit any also services 104, 108, 2294, ford, S.Ct. 33 408 U.S. 92 designated done “for the benefit of’ a enti- (1972)). 222 that are L.Ed.2d Statutes ty. addition, AEDPA punishes while insufficiently clear are for three rea void exclusively “service” through the criminal “(1) punishing people sons: to avoid for process, reg- the Executive Order and the they not have behavior that could known impose ulations the sanction of closure (2) subjective illegal; was to avoid enforce through a closed process. administrative ‘arbitrary ment of the laws based on and The “services” ban in the regulations discriminatory by govern enforcement’ implementing the Executive Order is dif (3) officers; any chilling ment and to avoid ferent the “service” ban we invalidat effect on the exercise of First Amendment ed in III. The AEDPA ban was freedoms.” Id. unexplicated and contained terms that parties whether dispute vague “expert were themselves advice — First Amendment or non-First Amend assistance,” and “training.” In those ment vagueness applies. test facial circumstances, easy it was for us “to “clearly implicates When a statute free imagine protected expression falls speech rights,” it will a facial survive chal ” within the bounds of the term ‘service.’ lenge long clear so as “it is what III, (internal quota 552 F.3d 930 proscribes statute ‘in vast majority tion marks citation to district court ” its applications.’ intended Cal. Teachers omitted). opinion Here, contrast, 1141, of Educ., Ass’n v. Bd. 271 State F.3d regulations clarify the term “services” (9th 1149, Cir.2001) (quoting 1151 Hill v. offering examples of contemplated. what is Colorado, 733, 120 S.Ct. 594.406(b) (citing “legal, C.F.R. ac (2000)). 147 L.Ed.2d 597 Outside financial, counting, brokering, freight for context, the First a plaintiff Amendment warding, transportation, relations, public alleging vagueness facial must show that services”). educational, or other The ex “the impermissibly vague enactment is amples out the guesswork take that trou all its applications.” Hotel & Motel Ass’n They bled us in HLP III. make clear that Oakland, City v. Oakland legal prohib and educational are services (9th Cir.2003) (quoting Village ited. also They indicate that one should Estates v. Flipside, Es perform a useful professional or busi Hoffman Hoffman tates, Inc., 489, 495, S.Ct. organization. ness task for a terrorist (1982)). 1186, 71 L.Ed.2d 362 It is unnec reasons, For these even if the term “ser essary however, dispute, to resolve the vices” ambiguo alone would be us,11 because HLP still cannot succeed even examples person alert a of ordi assuming that the nary more relaxed standard intelligence to the services that applies. provided should not for the to or bene Trading Department regulation But see United Int’l States Homa under issued IEEPA (2d Cir.2004) (con- Corp., unambiguous). Order Executive 12959 is cluding Treasury that the term in a "services” circumstances, term position ernment’s is “ser- In these fit of SDGTs. in Executive 13224 does not pro vices” Order what the term “services” is clear independent advocacy. Both be- majority of intended reach in the vast scribes indepen- cause the ban cannot extend to applications.12 advocacy, govern- dent and because of the term could concerned not, representation ment’s that it does advocacy undertaken independent ensnare ground. decline to void the order on this It the PKK and LTTE. for the benefit of First HLP also contends that it is unclear undoubtedly offend the would pro- if whether the ban on “services” covers activ regulations Amendment were However, teaching human advocacy. rights ities such as advo independent hibit cacy, writing rights a human report, they sup- And we see no basis for don’t. engaging public advocacy. in relations they might. posing that However, we see no unconstitutional Secretary explicitly recognized has The observed, guesswork; as the district court criteria the “designation [under majority in vast of a given cases indi in applied will a man- Order] Executive be can distinguish performing vidual a service law, pertinent ner consistent with Federal to an from independent activity. SDGT applicable, the First including, where Dept. Treasury, v. U.S. 463 of Amendment to the United States Constitu- F.Supp.2d uncertainty at 1063. Should 30, (January Fed.Reg. tion.” 72 4206 purely hypothetical, lurk that is not howev 2007). Treasury Depart- This reflects the er, administrative vehicles are available for interpret regula- to its own ment’s intent clarification.13 “services,” tions, to including the ban on words, “Condemned to the use of we can advocacy because in- independent exclude expect certainty never mathematical advocacy always protected dependent is 110, language.” Grayned, our at I, First Amendment. HLP 205 under the 92 S.Ct. 2294. But it is clear what the points at 1134. HLP to no instance F.3d proscribes Executive Order “in the vast in the Executive Order has years since majority applications.” of its intended in force where the has so, HLP’s facial being challenge This fails. designated organization an or individual independent advocacy in engaging for ii “overwhelming politi- function was whose advocacy.” Similarly, points cal Id. to The is not un ban “services” any person engaged constitutionally vague as-applied no where to instance HLP’s subject activities, independent advocacy has been to intended either. The heart of IEEPA penalties position civil or criminal under HLP’s activities which it The for the of engaging gov- proposes engage for in such conduct. benefit bring We that HLP does not a direct 13. Individuals or in doubt about note institutions challenge First Amendment to the Executive propriety proposed may of activities call challenge require Order—a that would Department Treasury’s compliance of hot- holding in HLP I that to address this court’s line; mailbox; Treasury’s e-mail the e-hotline support” ban on "material was con- AEDPA’s division, Treasury’s licensing apply call for Thus, stitutional, 205 F.3d at 1133-36. license; attorney a and consult an in the challenge, addressing vagueness HLP’s Office, request Chief Counsel’s or submit a for assessing necessarily wheth- limit our focus interpretation pro- of whether the written prohibited what is the term er it is clear posed activity would constitute a violation. Order, in the Executive and find "services” C.F.R. the term as defined 594.406 sufficiently clear. linked necessarily speech,” PKK LTTE are not to the associated with “[r]arely, ever, if an carrying activity. out terrorist Howev will over-breadth er, not so much a over quarrel this is succeed” in these circumstances. Hicks, 124, it is vagueness, 2191; about substance. As 539 U.S. at 123 S.Ct. III, Hicks). proposed explained, (quoting the district court 552 F.3d at 931 clearly ser ban prohibited imposed by activities constitute Executive Order vices, as applied and for this reason an like the material ban in AEDPA, vagueness challenge for does not lie. is not at the expressive aimed Dept. Treasury, HLP v. component U.S. of HLP’s conduct but at stop 1058-60; F.Supp.2d ping groups. accord Alaska aid to It terrorist has obvi Miles, ous, Right legitimate Comm. v. applications. Providing le Life (9th Cir.2006); financial, Gospel gal, accounting, educational, Missions City business, Angeles, Am. v. Los and like to designated services (9th Cir.2005); 1048-49 Parker v. groups money, see terrorist them saves which 733, 756, Levy, 417 94 S.Ct. in turn increases means at their dis (1974) (holding L.Ed.2d 439 posal “[o]ne Inhibiting acts.14 clearly whose applies provision conduct statute of services is for this reason a le may successfully challenge not it gitimate government for regulation of consti vagueness”). tutionally unprotected conduct. That particular protected some instances of

iii speech may fall within the Executive Or der not Alternatively, does make those instances that sub posits stantial when to compared legitimate its Executive Order’s ban on “services” is III, scope. 552 F.3d at broader than AEDPA’s ban 932. In on “service”— sum, as the which Executive Order is not we invalidated in HLP III on the aimed speech at and a footing that it could be does not cover substantial pro read to reach it, amount the ban on speech tected “services” to the Executive Or —because is not protected However, facially der bans SDGTs overbroad. speech. all the ban in the Executive is chan Order C 594.406(b). neled C.F.R. So un derstood, ban on is like “services” HLP faults imposing IEEPA for material ban in that support fines, AEDPA penalties designation, civil and held “spe was not overbroad. is Neither criminal sanctions without sufficient mens cifically speech addressed to to or conduct rea.15 It claims that and civil recently explained: As the Seventh Circuit providing support material to a terrorist organization you though even you provide pro- are not support If material to a terror- viding any support direct organization, you engaged ist are in acts. terror- (7th Mukasey, activity your ist even Hussain support if is confined Cir.2008). organi- to the nonterrorist activities of statute, Organizations zation. that the section, penalties 15. IEEPA’s parlance, indeed in instance common 1705, provides: organizations, describes as terrorist such as Lebanon, (a) Gaza Hamas in Unlawful acts. It be Hezbollah in shall unlawful for violate, violate, operate person attempt often on two tracks: a violent one a con- violate, peaceful (electioneering, charity, spire and a one a cause violation of license, services). order, provision you give social regulation, prohibition If is- (or money money given) raise chapter. to be for the sued under this teaching (b) penalty. penalty of arithmetic to in may children an Civil A civil be Hamas, you elementary school imposed any person run are who commits an 488). “quasi- making at 118 S.Ct. in HLP’s view are which penalties, determination, Fifth criminal,” run afoul of the First and we consider require they do not Amendments because (1) whether the sanction involves an af- recipient that the of forbidden knowledge restraint; (2) disability firmative And it maintains designated. is historically regard- whether it has penalties criminal must civil and that both (3) punishment; ed as a whether require specific intent. play only finding comes into on a scienter; (4) operation whether its will

i promote punish- the traditional aims of whether civil We determine (5) deterrence; ment—retribution and they should penalties are so severe applies whether the behavior to which it process guarantees as carry the same due (6) crime; already an whether alter- by following guide criminal offenses may to which it ra- purpose native be States, v. United posts set out Hudson tionally may assignable connected be 93, 118 488, 139 L.Ed.2d 450 S.Ct. (7) it; appears whether it excessive (1997). See, e.g., Reiserer v. United purpose relation to the alternative Cir.2007) (9th States, (apply 479 F.3d 1160 assigned. whether ing the Hudson test determine Hudson, 99-100, (quoting Id. penalties were criminal penalties IRS 488). 118 S.Ct. Thus, party).16 death of the abated with Congress clearly intended the civil legislature, whether the we “first ask civil, IEEPA to penalties under mechanism, in ‘establishing penalizing words, many criminal. It said so in so impliedly expressly either dicated ” 1705(b), §in describing penalty” a “civil for one label or the other.’ Id. preference distinguishing penalty” a “civil from a Hudson, 99, at (quoting 522 U.S. at 1163 “ “criminal that penalty” separately pro is 488). in ‘Even those cases 118 S.Ct. 1705(c). Hudson, §in vided for See 522 in legislature has indicated an where the ” 103, (concluding at that U.S. 118 S.Ct. 488 penalty,’ a civil we tention establish “ Congress “it evident that intended [was] statutory ‘inquire[ further whether ] in [challenged penalties] to be civil in punitive purpose either scheme was so “expressly pro nature” where statutes effect, clearly as to transform what was or ”). penalties that such are ‘civil.’ remedy vide[d] a civil into a criminal intended as ” Hudson, penalty $250,000 The nature of the (quoting penalty.’ Id. — (a) of 16. This court has used the Hudson test to unlawful act described in subsection not to exceed the penalty this section in an amount a determine whether is criminal greater of— variety of circumstances. See Norie civil in $250,000; (1) States, ga-Perez v. United (2) is twice the amount of an amount that (9th 1999) (applying 1171-74 & n. 3 Cir. Hud that is the basis of the the transaction immigration son lest to determine whether respect penal- with to which the violation statute was civil or as relevant to criminal ty imposed. is appellant's separa claim that statute violated (c) penalty. person Criminal A who will- also, C.I.R., powers); tion of see Louis v. commits, commit, willfully attempts fully (9th Cir.1999) (per cu 1234-36 commit, willfully conspires to or aids or riam) (applying holding that Hudson test and of, act in the commission an unlawful abets challenges al defendant’s to tax assessments (a) this section in subsection described leging and Sixth Amendment violations Fifth shall, conviction, upon be fined not more civil, failed because the assessments "[were] $1,000,000, person, may than or if a natural criminal, nature”). not years, imprisoned than 20 be for not more or both. national security foreign policy17 double amount transaction —is civil, criminal, also rather than nature. thus serves an alternative function other Correspondingly, it is evident such, punishment. than As we accord def designation President meant for to be civil erence to the executive branch’s decision authority as he conferred to make further designation necessary is for the na designations Treasury Department. on the tional As a penalty, designation interest. Congressional Id. (stating delegation is not excessive relation to that purpose. authority upon agency an administrative Therefore, the civil penalty neither nor penalty). made the sanction a civil designation offends the First and Fifth do Hudson factors not indicate that Amendments for lack of sufficient mens the civil are penalties really criminal. rea. penalties monetary, IEEPA’s civil are no other disability “affirmative or re- ii Reiserer, straint.” (quot- F.3d at 1163 reasons, For the same IEEPA’s Hudson, ing 522 U.S. at 118 S.Ct. penalties civil do not violate the First and 488). monetary penalties Such have not Fifth they Amendments because do not “historically regarded punish- require proof of intent specific to further (citation omitted). ment.” Id. Designa- designated entity’s activities. tion monetary carries more than bite for principal argument, HLP’s that both the entities, exceptions U.S. but are available civil and penalties criminal violate the case-by-case on a basis. Neither the civil First and Fifth prohibition Amendments’ penalty provision designation nor has a association, guilt by basically fore requirement, mens rea weighing against closed prior rulings. HLP In I finding that are criminal penalties. these rejected a similar to AEDPA

While civil fines and have a “ punishes because that statute “material effect, deterrent ‘the presence mere support,” I, not association. purpose is insufficient to render a ” F.3d at 1134. It follows that to the extent sanction criminal.’ Id. at 1164 (quoting Hudson, “services,” IEEPA punishes 488). does S.Ct. Finally, punish III, may the same association. punished conduct we also civilly rejected both criminally, and but this alone HLP’s effort to a specif introduce does not render all the penalties ic criminally requirement intent into AEDPA’s crimi punitive. Hudson, 105, 522 at U.S. 118 nal provision, 2339B, which S.Ct. 488. punished “knowingly those who provide[ ] ‘material support or resources’ to a desig balance,

On we conclude that HLP has foreign nated organization....” terrorist not shown proof’ “clearest that either III, HLP at 552 F.3d 926. As we ex the civil penalty designation is puni so plained, this provision exposed someone to 100, 118 tive as to be criminal. Id. at S.Ct. only criminal liability where the Although govern 488. designation presents a clos intent, proved er call than ment penalty, culpable the at in the civil the of case of end day the we are influenced the fact Id. knowledge. (distinguishing that AEDPA — core, designation, States, at the is a function of Scales v. United 367 U.S. 81 See, e.g., Agency, Islamic Am. security foreign policy”); 477 of national see Relief also, I, (reviewing designation (AEDPA F.3d at 734 under Ex- HLP at desig- 205 F.3d 1137 ecutive deferentially); Holy Order 13224 nations foreign the conduct of ] af- "involve! Land, (noting 333 F.3d at 166 that review fairs” of so "we owe the executive branch even SDGT context”). "involves] sensitive more issues latitude than in the domestic (1961), licensing regulations five Order and the upon 6 L.Ed.2d S.Ct. (in implementing it are aimed relevant well, involving as here as HLP relies which services, provision at the of which is part) respect with “which was silent a statute conduct-based, affording denying not at rea”). require- IEEPA’s mens requisite content- or view- speak a chance to is “willfully” act likewise person that a ment point-based. ‘personal requirement the “satisfies con- any process due and eliminates guilt’ V Id. cerns.” point, urges As a final us to not violate Thus, penalties IEEPA’s do to IEEPA apply saving a construction Fifth Amendments. the First and avoid constitutional difficulties. We see no accept propo need to do so. Nor do we IV IEEPA sition that should be narrowed to licensing argues require against a nexus between a sanction §§ violates in 31 501.801-02 scheme C.F.R. against a national and a sanction his coun by giving Fifth Amendments the First and try. points per out that the statute Foreign As Director of the Office mits the President to block transactions (OFAC) unregulated discre sets Control a “any foreign country national deny exemptions from grant or tion to thereof,”18 from which infers HLP lacks prohibitions. IEEPA “thereof’ the need for a word indicates issue, however, for reasons pursue against country. link with sanctions HLP v. by the district court. stated However, neither the text nor the Consti at 1071- Treasury, F.Supp.2d Dept. of requires tution this construction. The 72; County Rights Diego see San Gun permits the President to act with statute (9th Reno, 1121, 1126 Comm. any country, respect foreign any Cir.1996) (quoting Lujan v. Defenders national, requiring without first that sanc 560-61, Wildlife, S.Ct. 504 U.S. imposed against country. tions (1992)). short, 119 L.Ed.2d 351 proffered HLP’s construction of IEEPA a license under HLP has not been denied AEDPA, necessary keep is not licensing provision applied or even 2339B, being superfluous. U.S.C. one; licensing provision is not the characteristics The statutes have different injury; asserted and inval cause of HLP’s consequences. Among things, other licensing provision would not idation of the triggered only IEEPA when the Presi- is injury that HLP has suffered. redress emergency a national dent declares reply HLP relies for the first time in action, AEDPA applicable takes whereas Lakewood, 755-56, City Secretary of designates when the State waived, if its reli- 2138. Even S.Ct. organization. group foreign explained, we have unavailing. ance is As renders inad- The material statute standing to in gave the conditions that rise in any engaged missible alien who has activities, City pre-enforcement Lakewood for a terrorist see of 1182(a)(3)(B)(i)(IV) (V), The Execu- whereas challenge do not exist here. 1702(a)(1)(B) 1702(a)(l)(A)(ii) provides allows the President Subsection 18. 50 U.S.C. may "investigate, regulate, respect respects the President in the identified with to to act payments prohibit ... credit or transfers of any foreign country property "in or a which between, any banking by, through, insti- or to by any per- any national thereof has interest tution, extent that such transfers or to the supra son.” See note 2. foreign any payments involve interest of country or a national thereof.” Secretary’s IEEPA not. And AEDPA’s criminal standardless discretion to does grant deny requirement from IEE- licenses. mens rea differs PA’s. Given no constitutional difficulties magnitude requires adopt narrowing a con- therefore decline to HLP’s

We struction, we decline to rewrite IEEPA suggestions saving for a construction. narrowly.

more VI AFFIRMED. court

We conclude the district cor- PREGERSON, Judge, Circuit challenge rectly dismissed HLP’s to the part: dissenting authority designation under President’s IEEPA and the UNPA. IEEPA has never I II III.B. dissent Parts HLP, nor against been enforced has en- majority opinion. standing HLP’s to chal- forcement or ever threat- lenge the power designate President’s Self-censorship, ened. which suffices for specially designated global entities as ter- preenforcement challenges to statutes that analyzed using rorists should be the less face, speech are on aimed at their is insuf- rigid appropriate when standard First ficient here because IEEPA is aimed at rights Amendment are at stake. Further- engaging the conduct transactions more, disagree I with majority’s con- entities, with not at designated HLP’s clusion that the Order’s Executive ban on speech. valid, I agree “services” is because do not ordinary that a person intelligence challenge Secretary’s

HLP’s to the des- put would be notice of whether ignation authority his or fails on the merits. The her conduct ban on desired would be “services” the Executive Order considered prohibited unconstitutionally is “service.” vague neither nor overbroad, applied. on its face or as It is I adequately explicated in the regulations person ordinary such intelligence that a majority The concludes that HLP lacks can figure the sort of out assistance that is standing challenge the President’s un- not allowed. HLP’s intended activities are power fettered to designate spe- entities as plainly it. Independent advocacy within (SDGTs) cially designated global terrorists not. penalties may And IEEPA’s civil be because HLP has failed to demonstrate an imposed requirements without mens rea injury-in-fact. In so concluding, the ma- civil; they are because indeed its criminal jority that using finds a First Amendment penalties require culpable state of mind analysis standing for a pre-enforcement and the not additionally Constitution does challenge proper is not in this case. I require intent further specific disagree.

activities. “Particularly in the First Amendment- standing lacks protected context, speech the Supreme Treasury Department’s licensing scheme. dispensed rigid Court has it, anyone Under can for an apply exemp- requirements.” California Pro-Life tion Council, from the ban on Having Getman, services. Inc. v. so, (9th Cir.2003). done HLP is in no position assert majority holds injury not, what face, from it believes to be that the because IEEPA1 on does its States, 1. IEEPA authorizes the to security, President declare a the United to the national emergency respect "any with national un- foreign policy, economy of the United threat, extraordinary usual and which has its 1701(a). Upon 50 U.S.C. States[.]” declar- part source in whole or substantial oustide LTTE, PKK the or activities HLP the rights, with” Amendment First implicate standing rigid might the less be deemed to benefit those itself of cannot avail which n law, however, activities, Our case Based on those requirements. organizations. majority’s chosen the support does not by conduct protected which involve analysis. mode Amendment, might HLP fears it fall First power broad to des- within the President’s First, that no case holds designated ignate specially entities as Amendment con- in the First analysis used HLP’s First global terrorists. Because challenged statute requires that text I be- rights implicated, First Amend- are implicate its face Amendment must on invoke contrary, analysis rights. rigid” standing To “less is ment lieve our plaintiff must standing analysis, the framework for this case. appropriate fear and well-founded only “an actual show majority finds that this case is dis- The against [him law will be enforced that the tinguishable from California Pro-Life Council, 328 her].” Pro-Life California rigid standing and that the less Council Virginia v. Am. (quoting at 1095 F.3d analysis apply. holding not should Ass’n, Booksellers Council, however, en- Pro-Life California (1988) (alteration 636, L.Ed.2d 782 S.Ct. compasses the facts of case. is prosecution a fear of original)). “[S]uch asserting that ... “nakedly [its] not plaintiffs if the intended only will inure chilled the statute.” Cali- speech was within the statute’s arguably falls speech Council, 328 F.3d at 1095. fornia Pro-Life Council, 328 reach.” Pro-Life California HLP seeks to and advocate on does prosecution A fear of F.3d at 1095. organ- the lawful activities of two behalf of must have been plaintiff mean that the foreign terrorist or- designated izations prosecution: threatened with personally from ganizations. has been deterred a pre-enforce- “A who mounts plaintiff taking its desired course of action out challenge to a statute that he ment subject that it will be to the Presi- fear speech violates his freedom of claims authority, and all its dent’s the authorities have need not show that may frozen. While this case assets him; the threat prosecute threatened to factually distinguishable California stat- in the existence of the is latent Council, the same risks of self- arguably cov- Pro-Life statute] ute .... [I]f [the I therefore dis- censorship present. are conduct], may and so deter con- ers [his majority’s standing analysis. sent from the ... stitutionally protected expression standing.” there II Abell, Majors v. (quoting Id. at 1095 (7th Cir.2003)) majority’s holding (emphasis disagree I added). provid- that the Executive Order’s ban According ing “services” here is valid.

Here, it has a well- argues majority, distinguishable the ban is because it prosecution founded fear of III invalidated in HLP be- (for from the ban example, in activities engage seeks to here, clarify regulations relevant cause advoca- training rights in human providing means. It is true what the term “services” be deemed “association cy) might foreign country a national there- may any which emergency, the President ing such an authority granted by any person, any section or with then exercise the of has interest 1701(b). Section 1702 juris- any property, subject respect block transac- authorizes the President to States[.]” diction of the United respect any property in to ... tion "with 594.406(b) exam- provides that 31 C.F.R. INDUSTRIES, LLC, ONE a limited li accounting,

ples “legal, of banned services: ability company, Plaintiff-coun financial, brokering, freight forwarding, ter-defendant-Appellee, public relations edu- transportation, [and] clearly all prohibited. cational” services are v. concludes, howev- unhelpfully The list then DISTRIBUTING, INC., JIM O’NEAL services,” er, with the “or other phrase corporation, Defendant-counter- thereby vitiating whatever aid the list claim-3rd-party-plaintiff-Appellant, discerning what provided could have list, a Relying conduct is banned. on this ordinary intelligence person of would Blanchard; Boinnard, Marc Ludovic put on notice of whether his or her Third-party-defendants- desired conduct would be considered a Appellees. prohibited “service.” No. 08-55316. argues the term “services” easily independent could trench upon advo- of Appeals, United States Court cacy desig- undertaken for the benefit of a Ninth Circuit. group. majority

nated The finds this is Argued May and Submitted 2009. case, government not the because the re- Aug. Filed apply us that it will not regula- assures protected speech. Treasury tion to The

Department, example, promises ap- in a

ply regulations its manner “consistent law, including, Federal pertinent applicable,

where the First Amend- (Jan. 30, Fed.Reg.

ment....”

2007). government po- has taken the

sition and representations made that the

term indepen- “services” does not reach advocacy.

dent I doubt whether such ex-

pressed representations— intentions and earnestly

no matter how made—could as-

suage the reasonable fears of who entities

stand to have all their assets frozen if the change should course. Accord-

ingly, I dissent.

Case Details

Case Name: Humanitarian Law Project v. United States Treasury Department

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Aug 24, 2009

Citation: 578 F.3d 1133

Docket Number: 07-55893

Court Abbreviation: 9th Cir.