Humanitarian Law Project v. United States Department of Treasury

ORDER RE: PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND DEFENDANTS’ MOTION TO DISMISS AND CROSS-MOTION FOR SUMMARY JUDGMENT

Pending before the Court are Plaintiffs’ Motion for Summary Judgment and Defendants’ Motion to Dismiss and Cross-Motion for Summary Judgment. The parties’ Motions came on for hearing on July 26, 2006. Having considered the parties’ submissions, the case file, and counsels’ arguments, the Court GRANTS in part and DENIES in part Plaintiffs’ Motion, and GRANTS in part and DENIES in part Defendants’ Motion to Dismiss and Cross-Motion for Summary Judgment.

BACKGROUND

This case is the latest in a series of challenges that Plaintiffs have raised to measures taken by the Federal Government in the wake of the September 11, 2001 attacks on this Country. Plaintiffs are five organizations and two United States citizens seeking to provide support to the lawful, nonviolent activities of the Partiya Karkeran Kurdistan (Kurdistan Workers’ Party) (“PKK”) and the Liberation Tigers of Tamil Eelam (“LTTE”). The PKK and the LTTE have been designated as foreign terrorist organizations.

The PKK is a political organization representing the interests of the Kurds in Turkey, with the goal of achieving self-determination for the Kurds in Southeastern Turkey. Plaintiffs allege that the Turkish government has subjected the Kurds to human rights abuses and discrimination for decades. The PKK’s efforts on behalf of the Kurds include political organizing and advocacy, providing social services and humanitarian aid to Kurdish refugees, and engaging in military combat with Turkish armed forces.

The LTTE represents the interests of Tamils in Sri Lanka, with the goal of achieving self-determination for the Tamil residents of Tamil Eelam in the Northern and Eastern provinces of Sri Lanka. Plaintiffs allege that the Tamils constitute an ethnic group that has for decades been subjected to human rights abuses and discriminatory treatment by the Sinhalese, who have ■ governed Sri Lanka since the nation gained its independence in 1948. The LTTE’s activities include political organizing and advocacy, providing social services and humanitarian aid, defending the Tamil people from human rights abuses, and using military force against the government of Sri Lanka.

Plaintiffs seek to aid the PKK and the LTTE in the following ways: (1) they seek to provide training in human rights advocacy and peacemaking negotiations, as well as to provide legal services in aid of setting up institutions for providing humanitarian aid and in negotiating a peace agreement; (2) they seek to provide humanitarian aid directly to the PKK and LTTE; (3) they seek to provide engineering services and technological support to help rebuild the infrastructure in tsunami-afflicted areas; and (4) they seek to provide psychiatric counseling for survivors of the tsunami.

In the past, Plaintiffs have directed their challenges to the Antiterrorism and Effec *1054 tive Death Penalty Act (the “AEDPA”), as enacted by Congress in 1996 and amended by the USA PATRIOT Act and the IRT-PA. 1 The AEDPA, as amended by the IRTPA, provides as follows:

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.

18 U.S.C. § 2339B(a). The AEDPA, as amended by the USA PATRIOT Act and the IRTPA, provides the following definition of “material support or resources”:

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.

18 U.S.C. § 2339A(b)(l).

In this case, however, Plaintiffs for the first time challenge Executive Order 13224, signed by President George W. Bush on September 23, 2001 pursuant to the emergency powers vested in him by the International Emergency Economic Powers Act (“IEEPA”). Below, the Court summarizes the statutory framework of the IEEPA and the relevant provisions of Executive Order 13224 and its Regulations.

A. IEEPA

In 1977, Congress enacted the IEEPA to amend the Trading With the Enemy Act (“TWEA”). The TWEA, which was enacted in 1917 and amended in 1933, granted the President “broad authority” to “investigate, regulate ... prevent or prohibit ... transactions” in times of war or declared emergencies. 50 U.S.C. app. § 5(b).

With the 1977 IEEPA, Congress limited the TWEA’s applicability to times of war, but provided the President similar emergency economic power in peacetime national emergencies. The IEEPA authorizes the President to declare a national emergency “to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States.” 50 U.S.C. § 1701(a). Under this authority, the President may take the following actions:

[Investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States....

50 U.S.C. § 1702(a)(1)(B). Although the President’s authority under the IEEPA is broad, he can only exercise this authority to deal with a declared emergency that constitutes an “unusual and extraordinary *1055 threat.” 35 U.S.C. § 1701(b). The IEE-PA also authorizes the President to issue regulations in order to effectively exercise the authority granted him by § 1701 .and § 1702 of the IEEPA.

B. Executive Order 13224

Days after the September 11, 2001 attacks, President Bush invoked his authority under the IEEPA and issued Executive Order 13224 (the “EO”). In the EO, President Bush declared that the “grave acts of terrorism” and the “continuing and immediate threat of future attacks” on the United States constituted a national emergency-

President Bush further blocked all property and interests in property of twenty-seven groups and individuals, each of which President Bush designated as specially designated global terrorists (“SDGT”). These twenty-seven groups and individuals are identified in the Annex to the EO. Thereafter, he authorized the secretary of the treasury, in consultation with the secretary of state and the attorney general, to designate additional SDGTs provided that the given individual or group to be designated satisfied the criteria set forth in the EO. See EO § 1(b)-(d)(ii). In summary, President Bush authorized the secretary of the treasury to designate as an SDGT anyone acting “for or on behalf of’ or “owned or controlled by” a designated terrorist group. EO § l(b)-(e). The secretary of the treasury was also authorized to designate anyone who assists, sponsors, or provides “... services to” or is “otherwise associated with” a designated terrorist group. EO § l(d)(i)-(ii).

Furthermore, President Bush delegated to the secretary of the treasury his authority to issue any regulations that “may be necessary to carry out the purposes of [the EO].” EO § 7. Accordingly, the Office of Foreign Assets Control (“OFAC”) issued a series of regulations accompanying the EO (the “Regulations”). Among these Regulations is a provision permitting individuals and groups to obtain a license to engage in otherwise prohibited transactions with SDGTs. Furthermore, the Reghlations allow a designated individual or group to seek administrative review of any designation made pursuant to the EO. '

C. The Court’s July 25, 2005 Order in Case Nos. CV 98-1971 ABC and CV 03-6107 ABC

The Court has recited the procedural history of Plaintiffs’ various challenges to the AEDPA on several occasions. Accordingly, the Court need not do so again here. 2 Instead, the Court will only briefly summarize the relevant portions of the Court’s Order regarding Plaintiffs’ last challenge to thé AEDPA, as that Order has implications for this case.

In their last challenge to the AEDPA, Plaintiffs successfully challenged the constitutionality of the AEDPA’s use of the word “service” on vagueness grounds. Specifically, the Court agreed with Plaintiffs that the AEDPA’s use of the undefined word “service” was vague as applied to Plaintiffs’ proposed activity of “teaching international law for peacemaking resolutions or how to petition the United Nations to seek redress for human rights violations.” Humanitarian Law Project, 380 F.Supp.2d at 1150. Accordingly, the Court enjoined the Government from enforcing the AED-PA’s prohibition on providing “service” against Plaintiffs for engaging in this activity. The Court, however, rejected *1056 Plaintiffs’ overbreadth challenge to the term “service.” Likewise, the Court rejected Plaintiffs’ challenge to the AED-PA’s licensing provision, which allowed authorities to grant licenses to engage in otherwise prohibited- conduct under the AEDPA.

D. The Instant Case

Shortly after the Court issued its prior Order, Plaintiffs filed a Complaint in this matter. Thereafter, on April 6, 2006, Plaintiffs filed a Motion for Summary Judgment. On May 1, 2006, Defendants filed a combined Motion to Dismiss and Cross-Motion for Summary Judgment and Opposition to Plaintiffs’ Motion. On May 23, 2006, Plaintiffs filed a combined Reply in Support of their Motion and Opposition to Defendants’ Cross-Motion. On June 8, 2006, Defendants filed a Reply in Support of their Cross-Motion. On July 26, 2006, the Court heard oral argument on the matter. At the hearing, the Court requested Supplemental' briefing regarding whether Plaintiffs have standing to bring one of their challenges. On August 22, 2006, Plaintiffs filed their Supplemental Memorandum. On September 18, 2006, Defendants filed their Supplemental Memorandum. On September 26, 2006, Plaintiffs filed their Supplemental Reply. The Court took the matter under submission.

LEGAL STANDARD

The party moving for summary judgment has the initial burden of establishing that there is “no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law.” Fed. R. Civ. Pro. 56(c); see British Airways Bd. v. Boeing Co., 585 F.2d 946, 951 (9th Cir. 1978); Fremont Indem. Co. v. Cal. Nat’l Physician’s Ins. Co., 954 F.Supp. 1399, 1402 (C.D.Cal.1997).

Where the moving party bears the burden of persuasion at trial, the moving party must show that no reasonable trier of fact could find other than for the moving party. William W. Sehwarzer, et al., California Practice Guide: Federal Civil Procedure Before Trial § 14:124-127 (2001). The moving party’s burden extends to each element of the claim or claims on which it seeks summary judgment. S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir.2003) (“As the party with the burden of persuasion at trial, the [plaintiff] must establish ‘beyond controversy every essential element of its’ Contract Clause claim.”); Sehwarzer, California Practice Guide: Federal Civil Procedure Before Trial § 14:124-127; Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir.1986) (“If the movant bears the burden of proof on an issue, either because he is the plaintiff or as,a defendant asserting an affirmative defense, he must establish beyond preadventure all of the essential elements of the claim or defense to warrant judgment in his favor.”) (emphasis in original).

If, on the other hand, the non-moving party has the burden of proof at trial, the moving party has no burden to negate the opponent’s claim. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party does not have the burden to produce any evidence showing the absence of a genuine issue of material fact. Id. at 325,106 S.Ct. 2548. “Instead, ... the burden on the moving party may be discharged by ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.” Id. (citations omitted).

Once the moving party satisfies its initial burden, “an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleadings.... [T]he adverse party’s response ... must set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. Pro. *1057 56(e) (emphasis added); S. Cal. Gas Co., 336 F.3d at 888 (“[The non-moving party] can defeat summary judgment by demonstrating the evidence, taken as a whole, could lead a rational trier of fact to find in its favor”) (citations omitted). The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in favor of the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, the court must view the evidence presented “through the prism of the substantive evidentiary burden.” Id. at 254, 106 S.Ct. 2505.

DISCUSSION

Plaintiffs challenge five aspects of the EO and its accompanying Regulations. First, they contend that the EO’s ban on “services” is unconstitutionally vague because it fails to adequately notify the public, and Plaintiffs specifically, of the conduct to which the ban applies. Furthermore, they argue that the ban on “services” is overbroad because it encompasses a substantial amount of protected speech. Second, they assert that the EO Regulations are vague because they contain no definition of the term “specially designated terrorist group,” thereby giving the President unfettered discretion to designate which individuals and groups fit within that term. Third, Plaintiffs contends that the President’s designation authority, as exercised in the EO itself and as distinct from the designation authority delegated to the secretary of treasury, is unconstitutionally vague. Fourth, Plaintiffs contend that the EO’s ban on being “otherwise associated with” a terrorist group is vague and overbroad, as it punishes individuals and groups for exercising their First Amendment right to freedom of association. Fifth, Plaintiffs maintain that the Regulations’ licensing provision violates the First and Fifth Amendments because it contains no substantive or procedural safeguards for determining which individuals or groups qualify for a license. As such, according to Plaintiffs, the licensing provision gives authorities unfettered discretion to grant or deny a license.

Alternatively, Plaintiffs urge the Court to avoid these “constitutional difficulties” by construing the IEEPA and the EO in a way that Plaintiffs believe would comport with the Constitution. Specifically, Plaintiffs urge the Court to either restrict the reach of the IEEPA or to read into the EO a specific intent requirement that would preclude enforcement unless the given group or individual specifically intended to aid the illegal activities of an SDGT. As discussed below, the Court declines Plaintiffs’ invitation to adopt their proposed construction of the IEEPA or the EO.

In their motions, Defendants seek dismissal of Plaintiffs’ challenges to the President’s designation authority, to the “otherwise associated with” provision, and to the licensing provision on the ground that Plaintiffs lack standing to bring these challenges. Defendants moved for summary judgment with regard to Plaintiffs’ remaining challenges.

The Court addresses each of Plaintiffs’ challenges in turn below.

A. Plaintiffs’ Challenge to the EO’s Ban on “Services”

1. Vagueness

A challenge to a statute based on vagueness grounds requires the court to consider whether the statute is “sufficiently clear so as not to cause persons ‘of common intelligence ... necessarily [to] guess at its meaning and [to] differ as to its application.’ ” United States v. Wunsch, 84 F.3d 1110, 1119 (9th Cir.1996) (quoting Connolly v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926)). Vague statutes are void for *1058 three reasons: “(1) to avoid punishing people for behavior that they could not have known was illegal; (2) to avoid subjective enforcement of the laws based on ‘arbitrary and discriminatory enforcement’ by government officers; and (3) to avoid any chilling effect on the exercise of First Amendment freedoms.” Foti v. City of Menlo Park, 146 F.3d 629, 638 (9th Cir. 1998) (citing Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972)).

“[Pjerhaps the most important factor affecting the clarity that the Constitution demands of a law is whether it threatens to inhibit the exercise of constitutionally protected rights. If, for example, the law interferes with the right of free speech or of association, a more stringent vagueness test should apply.” Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). “The requirement of clarity is enhanced when criminal sanctions are at issue or when the statute abuts upon sensitive areas of basic First Amendment freedoms.” Info. Providers’ Coal. for Def. of the First Amendment v. FCC, 928 F.2d 866, 874 (9th Cir.1991) (internal quotation marks and citations omitted). Thus, under the Due Process Clause, a criminal statute is void for vagueness if it “fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute.” United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989 (1954). A criminal statute must therefore “define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited .... ” Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983).

A plaintiffs challenge to a statute on vagueness grounds can take two forms. First, the plaintiff can challenge the statute as vague as applied to the specific conduct in which the plaintiff seeks to engage. Alternatively, the plaintiff can challenge the statute as vague on its face, which encompasses actions beyond those of the individual plaintiff. In this case, Plaintiffs contend that the EO’s ban on “services” is vague both as applied and on its face.

a. Vague as Applied

Most commonly, a plaintiff will challenge a restriction on speech activity “as-applied” to the plaintiffs proposed conduct, although, as here, such challenges are often coupled with a facial vagueness challenge. Fo ti 146 F.3d at 629 (citing N.A.A.C.P., W. Region v. City of Richmond, 743 F.2d 1346, 1352 (9th Cir.1984)). “An as-applied challenge contends that the law is unconstitutional as applied to the litigant’s particular speech activity, even though the law may be capable of valid application to others.” Id. (citing Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 803 & n. 2, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984)).

In contrast to a facial challenge, an as-applied challenge implicates the statute’s enforcement only as to the plaintiff challenging the statute. Id. It does not, however, implicate the enforcement of the law against third parties. Id. Thus, unlike the “strong medicine” of overbreadth or facial vagueness invalidation, a successful as-applied challenge does not render the law itself invalid. Foü, 146 F.3d at 635. Instead, it serves only to prohibit the law’s application to the plaintiffs particular conduct to which the law’s application is allegedly vague. Id.

Here, the EO’s ban on “services” is not vague as applied to Plaintiffs’ proposed conduct. 3 On the contrary, it unquestion *1059 ably applies to each of the activities in which Plaintiffs seek to engage. First, the Regulations’ prohibition on providing “educational” and “legal” “services” unequivocally prohibits Plaintiffs from providing training in human rights advocacy and peacemaking negotiations, as well as providing legal services in setting up institutions to provide humanitarian aid and in negotiating a peace agreement. Second, while not covered by the Regulations’ definition of “services,” the EO itself explicitly bars Plaintiffs from providing humanitarian aid to the PKK and LTTE. See EO § 4. 4 Third, to the extent that the Regulations’ definition of “services” leaves any ambiguity about whether Plaintiffs may provide engineering services and technological support to help rebuild the infrastructure in tsunami-afflicted areas, the EO’s ban on providing “technological support” eliminates any such ambiguity. 5 EO § l(d)(i); see Gospel Missions of Am. v. City of Los Angeles, 419 F.3d 1042, 1048 (9th Cir.2005) (finding no ambiguity as to whether statutory provision governing solicitations of charitable contributions applied to panhandlers or church bake sales because other provisions within statute clarified ambiguity).

In contrast, the EO’s ban on “services” does not apply to Plaintiffs’ efforts to independently support the PKK or LTTE in the political process. Nothing in the EO Regulations’, definition of “services” prohibits independent political activity; instead, the Regulations prohibit Plaintiffs from providing “services” to an SDGT. This prohibition would not, for example, prohibit Plaintiffs from vocally supporting the activities -of the PKK or the LTTE. Indeed, the Government readily concedes this fact:

Plaintiffs otherwise argue that, “because the ban extends not only to services provided ‘to’ an SDGT, but also to ser *1060 vices that are determined to be ‘for the benefit of an SDGT, the ban appears to apply even to wholly independent advocacy or services....” But E.O. 13224 is quite obviously not intended to apply to independent advocacy in support of designated groups as plaintiffs suggest.

Defs.’ Mot. at 16-17 (quoting Pis.’ Mem. at 14). 6

Moreover, contrary to Plaintiffs’ argument, the fact that the Court previously found the AEDPA’s use of the word “service” vague as applied does not dictate that the Court must likewise find the EO’s use of the word “services” vague in this case. On the contrary, Plaintiffs’ argument overlooks the differences between the word “service” in the AEDPA and the word “services” in the EO. The AEDPA’s ban on “service” was not as clear as that in the EO with respect to Plaintiffs’ proposed activities. Indeed, to the extent that the AEDPA offered illustrations of what would constitute “service,” those illustrations included “training” and “expert advice or assistance,” two terms that the Court had already concluded were impermissibly vague. Given the vagueness of these words, the resulting illustrations of “service” provided little, if any, guidance for Plaintiffs to determine whether the AED-PA prohibited them from “teaching international law for peacemaking resolutions or how to petition the United Nations to seek redress for human rights violations.”

Humanitarian Law Project, 380 F.Supp.2d at 1150.

Additionally, even if the AEDPA’s definition of “service” contained only clear terms, its application was questionable as to Plaintiffs’ proposed activities. The AEDPA contained no reference to “legal” or “educational” services in its list of activities falling within the statute’s prohibition on “service.” In contrast, the EO’s definition of “services” includes these terms and, as such, leaves no doubt as to whether Plaintiffs’ proposed activities would be prohibited. Indeed, such activities would most definitely constitute “legal” or “educational” “services,” which the EO’s Regulations unequivocally prohibit. This difference renders Plaintiffs’ reliance on the Court’s past Order untenable.

Athough Plaintiffs could, no doubt, conceive of some activity to which application of the EO’s ban on “services” might be less clear, Plaintiffs have not demonstrated that they intend to engage in any such hypothetical conduct. Instead, they have identified only activity that falls squarely within the conduct that the EO prohibits. Accordingly, their vagueness challenge to the EO as applied to their proposed activity fails.

b. Vague on Its Face

Facial invalidation of a statute on vagueness grounds “ ‘is, manifestly, strong medicine’ ” that should not be used except as a *1061 “ ‘last resort.’ ” Cal. Teachers Ass’n v. State Bd. of Educ., 271 F.3d 1141, 1155 (9th Cir.2001) (quoting Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 580, 118 S.Ct. 2168, 141 L.Ed.2d 500 (1998)). Indeed, “a successful challenge to the facial unconstitutionality of a law invalidates the law itself,” as opposed to invalidating the law’s applicability to only a specific plaintiffs conduct. Consequently, challenges to a statute as vague on its face are permitted only in limited circumstances. Schwartzmiller v. Gardner, 752 F.2d 1341, 1346 (9th Cir.1984) (citing Flipside, 455 U.S. at 495, 102 S.Ct. 1186; United States v. Mussry, 726 F.2d 1448, 1454 (9th Cir. 1984); Broadrick v. Oklahoma, 413 U.S. 601, 611-12, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)).

A plaintiff may, however, successfully challenge a statute as vague on its face when the statute impinges on constitutionally protected activity and gives unfettered discretion to law enforcement officers to determine whether a given person’s conduct violates the statute. Kolender, 461 U.S. at 355-58 & n. 8, 103 S.Ct. 1855; Foti, 146 F.3d at 639 (invalidating statute prohibiting posting of signs on cars that were “parked to attract attention” because statute impermissibly allowed police to resolve whether statute was violated on “ad hoc basis,” creating twin dangers of “ ‘arbitrary and discriminatory application’ ”) (quoting Grayned, 408 U.S. at 108-09, 92 S.Ct. 2294). For example, in Kolender, the Supreme Court invalidated a state law requiring individuals to show “credible and reliable” identification in response to an officer’s request because the statute contained no standard for the individual to determine what type of identification met this requirement. Id. at 358, 103 S.Ct. 1855. Consequently, the statute vested “virtual complete discretion” to officers to determine whether, under the given circumstances, an individual’s identification was “credible and reliable.” Id. This “unfettered discretion” in turn created the danger of “arbitrary” suppression of important civil liberties. Id.

Additionally, a person may challenge a statute as vague on its face when the statute “clearly implicates free speech rights.” 7 Cal. Teachers Ass’n, 271 F.3d at 1149. But even where a statute clearly implicates free speech rights, the statute will nevertheless survive a facial vagueness attack as long as “it is clear what the statute proscribes ‘in the vast majority of its intended applications.’ ” Gospel Missions, 419 F.3d at 1047 (quoting Cal. Teachers Ass’n, 271 F.3d at 1151 (citing Grayned, 408 U.S. at 112, 92 S.Ct. 2294)). Indeed, even where a law implicates First Amendment rights, the Constitution must tolerate a certain amount of vagueness. Cal. Teachers Ass’n, 271 F.3d at 1151. 8 In *1062 Cal. Teachers Ass’n, for example, the plaintiffs raised a facial vagueness challenge to a voter approved initiative mandating school instructors to “overwhelmingly” use the English language in “nearly all” classroom instruction. Even though the Ninth Circuit acknowledged potential ambiguities in the initiative’s application, the Court nevertheless rejected Plaintiffs’ challenge:

Undoubtedly, there will be situations at the margins where it is not clear whether a teacher is providing instruction and presenting the curriculum. In these situations, where legitimate uncertainty exists, teachers may feel compelled to speak in English and may forgo some amount of legitimate, non-English speech. The touchstone of a facial vagueness challenge in the First Amendment context, however, is not whether some amount of legitimate speech will be chilled; it is whether a substantial amount of legitimate speech will be chilled.

Cal. Teachers Ass’n, 271 F.3d at 1152.

Although not necessarily required for invalidation, a common theme running through the cases in which statutes have been invalidated as facially vague is the use of language that lends itself to subjective interpretation. See Coates v. City of Cincinnati, 402 U.S. 611, 612-14, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971) (finding ordinance prohibiting “conduct ... annoying to persons passing by” was impermissibly vague); cf. Gospel Missions, 419 F.3d at 1047 (rejecting facial vagueness challenge to statute’s use of word “charitable” because “charitable” was word of common understanding providing average person notice of permitted and prohibited activity). For example, in United States v. Wunsch, 84 F.3d 1110 (9th Cir.1996), the Ninth Circuit held that a court’s local rule punishing lawyers for engaging in “offensive personality” was unconstitutionally vague on its face because the term could “refer to any number of behaviors,” making it “impossible to know when such behavior would be offensive enough to invoke the statute.” Wunsch, 84 F.3d at 1119.

Similarly, in Foti, the Ninth Circuit invalidated a city ordinance prohibiting individuals from placing signs on vehicles if the vehicles were “parked to attract attention.” Foti 146 F.3d at 638. The Ninth Circuit explained that enforcing the ordinance would require the officer to “decipher the driver’s subjective intent to communicate from the positioning of tires and the chosen parking spot.” Id. Such subjective standards of enforcement created the very realistic potential for officers to enforce the statute against only people using their cars to display signs bearing statements that the officers found personally disagreeable. Id. at 639.

Here, by contrast, the EO’s ban on “services” is not vague on its face. First, Plaintiffs’ allegations aside, the EO’s ban *1063 on “services” does not give “unfettered authority” to designate a person or group as an SDGT. While the Regulations’ definition of “services” may not be exact, it does not permit subjective standards of enforcement like those permitted by the statute in Kolender, which allowed officers to determine on an ad hoc basis whether a given individual’s identification was “credible and reliable.” Indeed, even the proponents of the statute in Kolender conceded that the standards for “credible and reliable” identification changed with the given situation, thereby allowing officers unfettered discretion to determine whether an individual’s identification satisfied the statute. By contrast, the EO’s definition of “services” is not open to such varying and subjective application. Instead, the word “services” is, by and large, a word of common understanding and one that could not be used for selective or subjective enforcement. Although instances may arise where it is unclear whether the EO prohibits some conduct, this does not mean that the EO provides unfettered discretion as to what constitutes “services.” Indeed, the Court is hard-pressed to find an analogous scenario under which “services” could be applied in as subjective a manner as that allowable under the “credible and rehable” standard in Kolender.

Second, the EO’s ban on “services,” while conceivably vague as to some hypothetical conduct, will nevertheless be clear in the vast majority of its intended applications. In the vast majority of cases, any given individual would be able to distinguish when he or she was providing a “service” to a designated terrorist group, as opposed to engaging in independ