File this one under First Amendment rights that make you think… The Supreme Court is questioning whether a law barring Americans from providing support to foreign terrorist groups violates their constitutional right of free speech and association. As in, can U.S. groups advise foreign terrorists?

I’m serious. Read the Reuters article.

The current law bars “knowingly providing any service, training, expert advice or assistance to any foreign organization designated by the U.S. State Department as terrorist.”

Some of the justices are wondering whether the law outlaws “the provision to provide those groups even of advice about lawful advocacy like petitioning the United Nations or filing legal briefings in American courts.”

What at first sounds like an absurd argument gets hairy when you think about the U.S. supporting “terrorist” groups in other countries that are fighting against their own leadership. An example would be Georgetown University law professor David Cole arguing that the law makes it a crime for the Humanitarian Law Project, his clients in Los Angeles, to speak out in assistance of the Kurdistan Workers Party, a militant separatist group in Turkey.

The hour-long arguments are the first example of the questioning to reach the Supreme Court since September 11, 2001. Reuters writes that it is the first instance ”pitting First Amendment rights of free speech and association against government efforts to fight terrorism.”

The changes in U.S. legal laws about terrorism here and abroad have changed a lot in the last 10 years, and the current debate around the definition of terrorism has added to the debate over what it is, how do deal with it and what kind of rights a “terrorist” group or individual has. There is still a lack of clarity about what a “terrorist” is defined to be.

"You can communicate, but the communications are censored. There's a certain point where the discussions must stop," said Justice Ruth Bader.  

The law barring material support was first adopted in 1996 and was strengthened by the USA Patriot Act. Obama administration lawyers are calling the law a "vital weapon".

Proponents of the law say they are open to seeing it reframed, as in if it were still in existence but less restrictive way (banning “support that significantly aided unlawful ends).

Justice Stephen Breyer asked whether the law would cover teaching groups to do something protected by the First Amendment like petitioning an international body.

"What's the objection to that?" asked Breyer. The reply was that aiding a terrorist group even in a legal sense will "strengthen those organizations in everything that they do."

Justice Antonin Scalia said the law criminalizes help and assistance. "That's quite different from a law directed explicitly at speech," said Scalia.

A decision is expected in June and Justice Anthony Kennedy, who often casts the deciding vote, said it is a difficult case.

Doesn’t seem too difficult to me. Just rephrase it to say that if you help foreign terrorists do something illegal it’s illegal. If you help them do something legal it’s ok. Done. Though in legal circles, nothing is ever that simple.

Photo Credit: Schodts (via Flickr under CCL)