Another problem, Kaplan said, was that, should the court declare the statute unconstitutional, there remains the "preexisting law."
Lohier said still another problem was that "what you are discussing is hypotheticals," and he wanted to know whether there was any "clear statement" from Congress.
Afran said it was not clear exactly what Congress meant and he urged the court to look at "reasonably objective fear" that journalists and others will be caught up by the statute.
"It's not the likelihood of actual detention," he said. "It's whether the nature of the statute reasonably chills expression."
Hedges, he said, has traveled with al Qaida and associated with the group and the government could interpret as "substantial support" Hedges' reporting on the views of al Qaida and their "modus operandi."
"It's sufficiently broad that Mr. Hedges could be brought under the statute," Afran said. He added that a journalist should not have to prove he is engaged in "independent expression."
"To suggest that the First Amendment puts the burden on the speaker to show his independence [is contrary to] 200 years of jurisprudence," he said.
Mayer practices with the Mayer Law Group. Afran is a solo practitioner in Princeton, N.J.
The panel took the matter under advisement.
@|Mark Hamblett can be contacted at mhamblett@alm.com.
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