WASHINGTON — 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 closely split between those who saw this as a terrorism case and those who saw it as a free-speech case.
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. She discounted the "supposed First Amendment claims" raised by human-rights advocates.
"When you help Hezbollah build homes, you're helping them build bombs," she said.
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But Georgetown law professor David Cole said the human-rights advocates he represents are not interested in supplying bombs, but rather in urging foreign groups to avoid violence and to take their disputes to the United Nations.
"They seek peaceful solutions to conflict. And they support only lawful activities," he said. Cole is representing the Humanitarian Law Project in Los Angeles and its president, Ralph Fertig, a University of Southern California professor of social work who has advised the Kurds in Turkey.
In 1997, the State Department listed the Kurdistan Workers Party, or PKK, as a foreign terrorist group, which meant that Fertig could go to prison for giving "expert advice or assistance" to Kurdish leaders.
"The government has been arguing for more than a decade that our clients cannot advocate for peace," Cole said.
When asked whether Fertig would be prosecuted for advising the Kurds, Kagan agreed he could be. If he is working for and on behalf of the PKK, he would be subject to prosecution, she replied.
In response to other questions from the justices, she agreed an American citizen could be prosecuted for drafting a legal brief or writing a newspaper article in coordination with a banned group, such as Hamas.
Cole urged the justices to rule that the First Amendment protects those who speak out or advise foreign terrorist organizations, so long as they advocate only peace and nonviolence.
Justice Antonin Scalia agreed with the government's lawyer and said he saw no constitutional problems with the anti-terrorism law. "If you provide any aid" to them, it "furthers their terrorist activity," he said.
But Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor said Fertig and his allies are not seeking to aid terrorists or terrorism.