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WASHINGTON (Reuters) – Supreme Court justices on Tuesday questioned whether a law that bars Americans from providing support to foreign terrorist groups violated constitutional rights of free speech and association.
Some justices seemed concerned the law outlawed the provision to such groups even of advice about lawful advocacy, such as petitioning the United Nations or filing legal briefings in American courts.
The hour-long arguments represented the first test to reach the Supreme Court after the September 11, 2001, attacks pitting First Amendment rights of free speech and association against government efforts to fight terrorism.
Justice Ruth Bader Ginsburg said verbal or written communications, protected by the First Amendment, could be censored under the law.
“You can communicate, but the communications are censored,” she told the Obama administration lawyer who defended the law. “There’s a certain point where the discussions must stop.”
The law barring material support, first adopted in 1996, was strengthened by the USA Patriot Act adopted by Congress right after the September 11 attacks and underwent minor amendment again in 2004.
The law bars knowingly providing any service, training, expert advice or assistance to any foreign organization designated by the U.S. State Department as terrorist.
Georgetown University law professor David Cole argued to the court that the law made it a crime for his clients, the Humanitarian Law Project in Los Angeles and its president Ralph Fertig, to speak out in assistance of the Kurdistan Workers Party, a militant separatist group in Turkey.
Solicitor General Elena Kagan, the administration’s top courtroom lawyer, called the law a “vital weapon” for the government in fighting terrorism.
But Justice Stephen Breyer asked whether the law would cover teaching how to do something protected by the First Amendment, such as petitioning an international body like the United Nations.
The law’s opponents said they would accept the law if it were reframed in a less restrictive way, banning only support that significantly aided unlawful ends.
“What’s the objection to that?” Breyer asked Kagan. She replied that teaching foreign terrorist groups to petition international bodies to get financial or other support would “strengthen those organizations in everything that they do.”
Some conservative justices also expressed concerns.
Chief Justice John Roberts said he was not so sure what constituted expert advice or assistance to such groups.
Of the nine Supreme Court members, Justice Antonin Scalia appeared most supportive of the law, saying it criminalizes help and assistance. “That’s quite different from a law directed explicitly at speech.”
Justice Anthony Kennedy, who often casts the decisive vote on the court closely divided between conservative and liberal factions, called it a difficult case.
A decision is expected by end of June.
(Editing by Alan Elsner)