WASHINGTON (CN) – Lawyers argued before the Supreme Court on Tuesday whether the government violates free speech protections by barring Americans from providing any assistance to listed terrorist groups, including teaching them how to get humanitarian aid or how to peacefully advance a political agenda. “Under the definition of this statute, teaching these members to play the harmonica would be unlawful,” Justice Sonia Sotomayor said.
U.S. citizens are barred from knowingly giving “any service, training, expert advice or assistance, personnel” to listed terrorist organizations.
The Humanitarian Law Project brought the case on behalf of groups that want to work with the Kurdistan Workers Party to peacefully advocate Kurdish rights before the United Nations and that want to work to the same purpose with the Liberation Tigers of Tamil Eelam. The Humanitarian Law Project sued the government over the ambiguity of the restrictions though the government has not alleged any violations of the law by the project itself.
Both the Kurdistan Workers Party and the Liberation Tigers of Tamil Eelam are designated as terrorist organizations by the United States and have led violent separatist movements. The Kurdish group operates largely in Turkey, and the Tigers operated largely in Sri Lanka, although it was defeated by the Sri Lankan army last year.
“Any assistance you provide to these organizations cannot be separated from assistance to their terrorist activities,” Justice Antonin Scalia said.
Both sides played on fear in arguing their cases. The government said the provision has played an important role in fighting terrorism, while the humanitarian group said the provision eats away at core American freedoms.
Solicitor General Elena Kagan called the statute “a vital weapon in this nation’s continuing struggle against international terrorism,” and maintained that the government has the right to regulate the relationships between Americans and foreign groups, pointing to the embargo on Cuba as an example.
Kagan also argued that the humanitarian group is fighting to associate itself with terrorist organizations, not just fighting for free speech. Even ordinary citizens can understand the law to mean that they can write or say whatever they want about terrorist groups, even join them, so long as they don’t provide material assistance to the group, she said.
Justice Samuel Alito was quick to challenge Kagan. “How can you argue that training and providing advice is not speech?” he asked.
Kagan replied that training terrorists how to build a bomb is different from speech.
Justice Ruth Bader Ginsburg followed up, speaking of the humanitarian group. “I think they said that they want to train them how to do lawful things, how to pursue their goals in a lawful, rather than a terrorist, way. And that is speech,” she said. “It is not conduct.”
Sotomayor proposed a scenario in which a terrorist is caught in the United States, and asked whether the statute would bar lawyers from representing the terrorist in court. “Isn’t that material support under the definition that you have been advocating?” she said.
Kagan replied that due process rules in the Constitution would allow lawyers to serve the terrorist.
Georgetown University Law Professor David Cole represented the humanitarian group and argued that the restrictions are too broad. He said they wrongfully bar the humanitarian group from joining with the terrorist groups to teach them to advocate their political agendas legally, constituting a bar on free speech.
“This Court has never upheld the criminal prohibition of lawful speech on issues of public concern,” he said.
Scalia was quick to express skepticism. “It hasn’t criminalized speech. Most of that aid and assistance that is prohibited is not in the form of speech, but it happens to include speech as well,” he said. “I think that is quite different from a law that is directed explicitly at speech.”
Justice John Paul Stevens asked, “Mr. Cole, Don’t you agree that some of the speech could be regulated?” Cole replied that he does not think any of it can be barred.
Justice Anthony Kennedy tested Cole’s view on other forms of aid. He asked whether the United States could prohibit the humanitarian group from giving terrorists money for help after a tsunami, but added, “I assume you will say ‘yes.'” But Cole answered that giving money is different from giving advice.
Kennedy followed up. “Could the government prohibit speech instructing the terrorist organization how to get the tsunami aid?” he asked. Cole said it could not.
Sotomayor asked whether Cole thought the government could use a loophole to prohibit conduct with the intent of limiting speech. “Let’s say the law said you’re prohibited from traveling to meet any of these individuals,” Sotomayor asked. “How would that be different than the Cuba situation?”
Cole replied that such a restriction would be unconstitutional because the objective would be to block speech.
The 9th Circuit struck down portions of the provision as unconstitutional after the Humanitarian Law Project challenged the restriction the first time. Congress responded in 2004 by clarifying the restriction, but the 9th Circuit held recently that “training” and “service” are impermissibly vague, that “expert advice or assistance” was partially vague, but that “personnel” is now clear.
Scalia said the court should forego all the hypothetical situations with assisting terrorist organizations and address only what the humanitarian group wants to do with them.
But Kennedy said doing so might be difficult because the humanitarian group was not pursued for its involvement with the terrorist groups. “It’s a very odd as-applied challenge because there hasn’t been a prosecution,” he said.
Then Kennedy, who often casts the deciding vote, said, “This is a difficult case for me.”