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Supreme Court weighs free speech against aid to terrorists

Congress decided "when you help Hezbollah build homes," you help Hezbollah "build bombs," Solicitor General Elena Kagan said.
Congress decided "when you help Hezbollah build homes," you help Hezbollah "build bombs," Solicitor General Elena Kagan said. (Jose Luis Magana/associated Press)

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The law's restrictions, Cole argued, intrude on the right to political speech. "There's no dispute, Your Honor, that the government has a compelling interest in cutting off aid to terrorism," he told Kennedy. "The question is whether it can do so by criminalizing pure speech."

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Cole immediately ran into trouble with Justice Antonin Scalia, one member of the court who did not appear to be conflicted about whether the law meets constitutional standards.

"It hasn't criminalized speech. It has criminalized providing aid and assistance to these organizations," Scalia said. "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 added that is "quite different from a law that is directed explicitly at speech."

But Kagan was challenged by other members of the court, particularly Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor.

Ginsburg said she did not understand Kagan's contention that individuals could meet with the organizations or even join them and not violate the law, but that lawful advice does violate it.

"I don't understand the line between meeting with these terrorist organizations, discussing things with them and instructing them on how they can pursue their goals through lawful means," Ginsburg said.

Sotomayor said the law is so broadly written that almost anything can be included in the category of "training."

"Under the definition of this statute, teaching these members to play the harmonica would be unlawful," she said.

Fertig has not been charged, because he has not engaged in the activity that the government says the law covers, and Chief Justice John G. Roberts Jr. suggested that the unusual status of the case might mean it should be sent back to lower courts for further examination of whether the government has a legitimate reason to prohibit such activities.

The cases considered are Holder v. Humanitarian Law Project and Humanitarian Law Project v. Holder.

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