Reporting from 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 1st Amendment claims" raised by human rights advocates.
"When you help Hezbollah build homes, you're helping them build bombs," she said.
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, not terrorism. Cole is representing the Humanitarian Law Project in Los Angeles and its president Ralph Fertig, a USC 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.
For his part, Cole urged the justices to rule that the 1st 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.
When Cole cited earlier cases which protected American Communists from being prosecuted simply for joining the group or attending meetings, Scalia discounted the threat posed by such people.
"That was about philosophy. People joined [the Communist Party] for philosophical reasons. I think it's very unrelated to compare these terrorist cases to communism," 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.
"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, often the swing vote in close cases, quizzed both lawyers but said he was troubled 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.
At one point, Kennedy pressed Cole to cite a case in which the court had ruled on a free-speech challenge to a federal law before anyone in the case had been prosecuted.
Cole quickly cited a recent campaign finance case, FEC vs. Wisconsin Right to Life, in which the court's conservative bloc struck down part of the McCain-Feingold Act before anyone in this group had been charged with violating the law.
The justices will meet behind closed doors later this week to vote on whether to uphold the terrorism 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 late June.