BOB GARFIELD: This is a shout-out to Al Qaeda and also to the IRA, Hamas, the Tamil Tigers and any Basque or Kurdish separatists within the sound of my voice. As an expert in the field of messaging, I advise and implore you directly, stop blowing people up. It wins you headlines, but not sympathy. Osama bin Laden, dude, this means you. Now, it's not likely that Osama bin Laden will heed my advice. Very possibly though, I have just committed a Federal felony. In a decision announced Monday the U.S. Supreme Court found that advice to terrorist organizations, even advice motivated by a wish to end violence, is punishable as aiding and abetting terrorism. The New York Times' Adam Liptak wrote about the case. Adam, welcome back to OTM.

ADAM LIPTAK: Thank you.

BOB GARFIELD: Can you tell me about the original prosecution that yielded this ruling?

ADAM LIPTAK: Well, no one was prosecuted but the case was brought by a couple of people and six organizations, all American, who said they wanted to provide advice of a kind that would further the aims of peace, to help a Kurdish group, for instance, that has a beef with Turkey appeal to international organizations to help resolve disputes peacefully. So these folks went to court to say they feared being prosecuted because it seemed that the plain terms of this law reached them, that even benign assistance amounts to material support to terrorist organizations. Nobody disputes that if you give terrorist organizations money or bombs or tangible stuff that that is the kind of support that can be used for terrorist ends. The question is can you give intangible speech-related advice and assistance to these groups and not be subject to this law that makes it a crime to provide material support.

BOB GARFIELD: Now, Chief Justice Roberts worried aloud about the free speech implications of this ruling but then ultimately said, oh well, you know you can't make an omelet without breaking some eggs. Can you break down his reasoning?

ADAM LIPTAK: Well, he made three basic points. He said that whenever you give terrorist organizations anything, you're freeing up resources for them to do bad things, I guess presumably because if they had to go out and pay for this advice that you're giving them for free, that would, you know take money that they would otherwise be using to blow things up. He said that any kind of engagement with terrorist organizations legitimizes them, and in its briefs the government said, listen, we want to make these people radioactive; we don't want Americans engaged with them, coordinated with them in any way. And finally, he said that it could strain United States relationships with allies if Americans were seen to be giving any sort of assistance to these groups.

BOB GARFIELD: But how could they conclude that speech, which is so — heavily protected under the Constitution constitutes actual material support?

ADAM LIPTAK: The line the Chief Justice drew — well, he drew two of them. One is he said, first of all, we're only talking about foreign terrorist organizations, we're not saying the government could make it a crime to help domestic groups of any kind, even terrorist ones. But the more important line that he drew was saying, we're not stopping you from saying anything you like. You yourself can go to the U.N. and petition for any claim that you want. What you can't do is coordinate your activities with theirs. But the lawyers in the case raised some interesting hypotheticals the Court didn't grapple with. One was, well, you know The Washington Post and The New York Times have published op-eds from the spokespeople of Hamas, one of the organizations designated as terrorists. Why isn't that giving them a kind of outlet, a kind of assistance? What if you wanted to file a brief on behalf of one of these groups, what then? Those are hard questions we didn't get answers to, but certainly the logic of the decision suggests that The Times or the lawyer wanting to represent one of these groups could well be committing a crime.

BOB GARFIELD: So have I just committed a Federal felony by directly messaging Al Qaeda, et al., with my advice to stop killing people?

ADAM LIPTAK: Well, it does need to be expert advice, Bob.

BOB GARFIELD: [LAUGHS] All right, that'll be enough out of you!

ADAM LIPTAK: [LAUGHS]

BOB GARFIELD: Let me ask you about Elena Kagan. She is the nominee for the vacancy on the Supreme Court. She's also the Solicitor General of the United States and argued the government's position against free speech in this circumstance. Does this give us any window into her thinking if she were on the bench with the rest of the justices?

ADAM LIPTAK: She not only argued it, Elena Kagan said that this deserves no First Amendment protection at all because this is conduct, not speech. The Court rejected that position, which was a — an aggressive one. Whether this tells us about anything Kagan would do on the Court, probably not. She was a lawyer representing a client. And her own academic work, a lot of it was in the area of the First Amendment, and it was quite sensitive to concerns like this. So my guess, based on her academic work, rather than her litigation for a client, would be that she would see a lot of merit in what the dissenters said in this case.

BOB GARFIELD: So I gather that what we have to hope for is that Federal prosecutors do not get overzealous in taking this decision as somehow carte blanche to prosecute every loudmouth or do-gooder who wishes to influence terrorists. Is it ever good law if we have to hope for prosecutors not to be too extreme?

ADAM LIPTAK: The question answers itself, Bob. Obviously, anything that gives the prosecutors too much discretion to make just about anything into a crime is problematic. The majority here thought the law was narrowly tailored enough and put people on enough notice that you don't have to rely on prosecutors. But it remains to be seen whether people will know where that line is drawn and where prosecutors will be overzealous or not.

BOB GARFIELD: All right, Adam, as always, thank you so much.

ADAM LIPTAK: My pleasure, good to be here, Bob.

BOB GARFIELD: Adam Liptak covers legal affairs and especially the Supreme Court for The New York Times.