Rahmani

dissenting from denial of rehearing en banc.

It goes without saying that the United States government may prohibit donations to terrorist organizations. As we explained in Humanitarian Law Project v. Reno, 205 F.3d 1130, 1133 (9th Cir.2000), money is fungible; if an organization engages in terrorism, it can channel money donated to it for humanitarian and advocacy purposes to promote its grisly agenda. At the same time, however, giving money to a political organization that is not engaged in terrorist activities is constitution *916 ally protected. The determination of whether or not an organization is engaged in terrorism is therefore crucial, because it distinguishes activities that can be criminalized from those that are protected by the First Amendment.

This case concerns the manner in which this distinction is drawn. Because designating an organization as terrorist cuts off the First Amendment rights of individuals wishing to donate to that organization, the designation must meet certain constitutional standards. The Supreme Court has twice spoken to the question of how the government may go about turning what would otherwise be protected First Amendment speech into…

ORDER

The order filed April 17, 2006, denying the petition for rehearing and petition for rehearing en banc is amended as follows:

After the sentence, “The matter failed to receive a majority of the votes of the non-recused active judges in favor of en banc consideration,” insert the following sentence: “Judge Fisher and Judge Berzon were recused from all proceedings in this case.”

ORDER

The panel has voted unanimously to deny the petition for rehearing and petition for rehearing en banc.

The full court has been advised of the petition for rehearing en banc. A judge of the court requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Judge Fisher and Judge Berzon were recused from all proceedings in this case. Fed. R.App. P. 35(b).

The petition for rehearing and the petition for rehearing en banc are DENIED.

Background

Anyone who “knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so” faces up to 10 years in prison. 18 U.S.C. § 2339B(a)(1).1 A foreign “terrorist organization” is defined as any organization so designated by the Secretary of State under 8 U.S.C. § 1189(a)(1).

Roya Rahmani was indicted under 18 U.S.C. § 2339B for making monetary contributions to the Mujahedin-e-Khalq (MEK), also known as the People’s Mojahedin Organization for Iran, between 1997 and 2001. See United States v. Rah- mani, sub nom. United States v. Afshari, 426 F.3d 1150, 1152 (9th Cir. 2005). MEK is opposed to the current fundamentalist regime in Iran. See People’s Mojahedin Org. of Iran v. Dep’t of State, 182 F.3d 17, 20-21 (D.C. Cir. 1999) (“PMOI I”). It was first designated a terrorist organization in 1997, and was re-designated in 1999 and 2001. See id. at 18; Nat’l Council of Resistance of Iran v. Dep’t of State, 251 F.3d 192, 197 (D.C. Cir. 2001) (“PMOI II”); People’s Mojahedin Org. of Iran v. Dep’t of State, 327 F.3d 1238, 1241 (D.C. Cir. 2003) 1 The maximum sentence was increased to 15 years in 2001. See USA PATRIOT Act, Pub. L.…