Before Justices, First Amendment and Aid to Terrorists

By ADAM LIPTAK

Published: February 23, 2010

WASHINGTON — The line between speech protected by the First Amendment and aid to terrorists appeared elusive at the Supreme Court on Tuesday, and the justices’ lively questioning complicated rather than clarified matters. They discussed travel to Cuba, the Communist and Nazi Parties, Tokyo Rose, treason and whether it is a crime to teach a terrorist how to play the harmonica.

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Solicitor General Elena Kagan defended the law at issue in the case, which bars providing material support to terrorist organizations, as “a vital weapon in this nation’s continuing struggle against international terrorism.”

Even seemingly benign help is prohibited, Ms. Kagan said.

“Hezbollah builds bombs,” she said of the militant Islamic group. “Hezbollah also builds homes. What Congress decided was when you help Hezbollah build homes, you are also helping Hezbollah build bombs. That’s the entire theory behind the statute.”

But several justices seemed to view the case as more difficult than that, at least where the help at issue took the form of speech rather than conduct.

The law makes it a crime to provide not only aid like money and guns but also four more ambiguous sorts of help: “training,” “personnel,” “service” and “expert advice or assistance.”

David D. Cole, a lawyer for people and groups challenging the law in the case, Holder v. Humanitarian Law Project, No. 08-1498, conceded that the government might ban donations of money even if they were meant to support lawful activities like tsunami relief. Mr. Cole added that training in bomb-making might also be banned.

But pure speech about lawful activities, he said, is a different matter.

“This court has never upheld the criminal prohibition of lawful speech on issues of public concern,” he said.

Mr. Cole’s clients say they want to provide support for the legal, nonviolent activities of a Kurdish political party and a Tamil group, both of which have been designated as terrorist organizations by the State Department.

One plaintiff, Ralph D. Fertig, a retired lawyer, has said he wanted to help the Kurdish group, the Kurdistan Workers’ Party, find peaceful ways to protect the rights of Kurds in Turkey and to bring their claims to the attention of international bodies.

Ms. Kagan said Mr. Fertig was free to say anything he wanted and to lobby anybody he liked so long as he did it independently of the banned group. She also said he might meet with the Kurdish group to discuss ideas. It was even all right, she said, to become a member of the group.

But the discussions turn criminal, Ms. Kagan said, if Mr. Fertig provides some kinds of advice.

That did not seem to satisfy Justice Ruth Bader Ginsburg. “So you can communicate, but the communications are censored,” Justice Ginsburg said. “You can be a member, you can attend meetings, you can discuss things, but there is a certain point at which the discussion must stop, right?”

Ms. Kagan responded, “The discussion must stop when you go over the line into giving valuable advice, training, support to these organizations.”

Ms. Kagan gave examples of prohibited conduct. A lawyer would commit a crime, she said, by filing a friend-of-the-court brief on behalf of a terrorist group. Helping such a group petition international bodies is also a crime, she added.

Justice John Paul Stevens asked if there was an authentic risk that Mr. Fertig would be prosecuted were he to make a presentation on behalf of the Kurdish group at the United Nations. He seemed to expect a negative answer.

But Ms. Kagan would say only that the matter would involve a “prosecutorial judgment.”

Chief Justice John G. Roberts Jr. said at least one part of the law, banning expert advice, seemed vague to him. “I don’t know sitting down that I could tell,” he said, whether advice about peaceful advocacy was covered.

Justice Antonin Scalia came to the defense of radicals from another era in an apparent effort to distinguish Supreme Court precedents protecting some forms of dissent and advocacy during the cold war.

“The Communist Party was more than an organization that had some unlawful ends,” Justice Scalia said. “It was also a philosophy of extreme socialism. And many people subscribed to that philosophy. I don’t think that Hamas or any of these terrorist organizations represent such a philosophical organization.”

Justice Anthony M. Kennedy, the court’s most consistent defender of First Amendment freedoms, said, “This is a difficult case for me.”

Support of any kind, Justice Kennedy said, “will ultimately inure to the benefit of a terrorist organization, and we have a governmental interest in not allowing that.”

But Justice Sonia Sotomayor suggested that the law might sweep too broadly by making, say, harmonica instruction a crime because it involves specialized training.

Ms. Kagan did not take a position on the question. But she did allow that “there are not a whole lot of people going around trying to teach Al Qaeda how to play harmonicas.”