The Supreme Court struggled Tuesday to resolve a conflict between the free-speech rights of a Los Angeles-based advocate for international peace and a broad anti-terrorism law that makes it a crime to advise a foreign terrorist group, even if it means advising its members to seek peace.
The justices sounded narrowly split between those who saw the case as a terrorism issue and those who saw it as a free-speech issue.
The case is being closely followed by human rights groups and international aid organizations.
U.S. Solicitor General Elena Kagan urged the court to uphold the broad sweep of the terrorism law and to permit prosecutions of anyone who gives any support to a terrorist group.
“What Congress decided is that when you help Hezbollah build homes, you’re helping Hezbollah build bombs,” she said, referring to the Lebanese Shiite political party and militia.
But Georgetown University Law Center professor David Cole said the human rights advocates he represents are interested in urging foreign groups to avoid violence and to take their disputes to the United Nations.
“They seek to advise them on peaceful conflict resolution. They seek to support only lawful activities,” he said.
Cole is representing the Humanitarian Law Project in Los Angeles and its president, Ralph Fertig, a USC professor who has advised the Kurds in Turkey.
Since 1997, the State Department has listed the Kurdistan Workers Party, or PKK, as a foreign terrorist group, which means that Fertig could go to prison for giving “expert advice or assistance” to Kurdish leaders.
Kagan agreed that Fertig could be prosecuted. She also agreed that an American citizen could be prosecuted for drafting a legal brief or writing a newspaper article in coordination with a banned group.
For his part, Cole urged the justices to rule that the 1st Amendment protects those who speak out on behalf of or advise foreign terrorist organizations, as long as they advocate only peace and nonviolence.
Justice Antonin Scalia said he saw no constitutional problems with the law.
“The theory of this legislation is that when you aid any of their enterprises, you aid the organization. Why isn’t that reasonable?” he asked Cole.
But Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor said Fertig and his allies are not seeking to aid terrorists or terrorism.
“All they want to do is speak about lawful activities,” Ginsburg said.
“What’s the government’s interest . . . in forbidding training in international law?” Breyer asked.
Justice Anthony M. Kennedy quizzed both lawyers, but said he was troubled that the case itself was vague and abstract. Fertig had not been prosecuted or convicted, so it was hard to decide whether the government had gone too far, he said.
The justices will meet behind closed doors this week to vote on whether to uphold the law as it stands or carve out an exception for free-speech claims involving peaceful advocacy.
A ruling in Holder vs. Humanitarian Law Project will be handed down by June.