I read with great interest Eugene’s post below on the Obama administration, free speech, and human rights. As it happens, I’m trying to finish up a manuscript on the UN and “values” at this very moment, and so alas don’t have time to comment more than a few paragraphs about this. Here are a couple of observations that I don’t propose to defend here; I throw them out unsupported, and I’ll try to go back and add something else later. Many of them are about the intellectual community of international law, which I take as relevant here in part because Eugene is trying to sort out what various international law experts say is or is not the import of the free speech drafts in the UN Human Rights Council; I think it matters to have a sense, even if it’s just my personal and idiosyncratic one, of the baseline of international law experts. (I don’t promise that I have re-read this closely despite some aggressive characterizations here; I’m simply out of time.)
This whole process of “engagement” on an issue like free speech by the US at the HRC or anywhere else in the international system is a mistake from the beginning. Among the many reasons is, first, that a process like that of the HRC is designed to lead to consensus, which in practice will mean some kind of compromise. But the whole point of freedom of speech under the First Amendment is that it is not open to compromise, and certainly not in the sense of elaborating standards from the outside for a sovereign people who govern themselves under a constitution.
Even to “engage” in the process, as a consequence, leads to tears no matter where it goes. A compromise on the issue will inevitably mean that the first amendment is weakened in its substantive American understanding. If the US engages in the process, however, but then does not accept the result, then it is understandably accused of negotiating in bad faith.
But that’s the consequence of a policy of “always, or nearly always, engage” with the UN or with international institutions. There are certain institutions in which the US should always engage; the Security Council is one of them. There are certain institutions or processes with which it should never engage and actively seek to undermine; Durban I and II come to mind. The HRC is another institution with which engagement is a mistake, and an obvious one. The decision to engage or not engage is one that by itself is an exercise in political capital. I admit to finding unpersuasive the position of some (HRW made these arguments around Durban, but it is a fairly common trope) that
- (a) the US should always engage with UN institutions because engagement is an important symbolic act that shows US commitment to international institutions and
- (b) the US should not be concerned about always engaging with institutions or processes at the UN, because these are “merely” symbolic processes and one can always walk out, because as a realist matter no one can “make” the US do anything it doesn’t want.
This is looking to have it both ways. Which is it to be? Does symbolic engagement matter or doesn’t it?
The reality is weirdly akin to Thomas a Kempis in The Imitation of Christ — if you stop to wrestle with sin you are already in it. The processes of engagement create their own meaning, their own dynamic, and once you are embroiled in them, well, getting in was easy and getting out more costly. If it makes one feel academically better, you can describe the process of engagement with discussions in the HRC (over what, if one were really serious, amount to debating the meaning of the First Amendment with the likes of Egypt or Libya or Saudi Arabia or Cuba, etc.) as “path dependency” rather than, say, rolling around in sin. The point is that if you are serious about what engagement is supposed to mean if one means what the Human Rights Council is supposed to mean, you are negotiating, however indirectly, the terms of the First Amendment.
I am not happy with that. But then my view is that the United States is a sovereign democratic political community — in Lincoln’s words, “a political community, without a political superior.” A second response to this criticism, therefore, seeks to get around the international/domestic law problem by an act of redefinition: ‘but all this international law is part of “our law,” too, so it’s “constitutional.“‘ When those kind sentiments were written in the US constitution (leaving aside self-execution of treaties, etc.) about the law of nations and treaties, however, it did not contemplate the internal reach contemplated by human rights law today; the idea that the law of nations would reach to matters of the First Amendment would have been inconceivable.
Moreover, as this kind of discussion illustrates only too well, in the real world of states and regimes, when the HRC debates free speech, the only real effect it could possibly have is on speech in places like America or Europe. No one imagines that it would have any impact on the policies of Iran or Saudi Arabia. The invocation of the formal equality of states and the “neutral” application of international law turns inevitably into a double standard. States that have no intention of changing their internal practices one whit not just opine, but (given the opportunity in the mistaken spirit of US engagement) are able to put pressure on the US, Europe, and elsewhere, to change their practices, if only by shifting the burden to having to defend them. It is yet another example of a relentless one way ratchet that, by reason of having undertaken “engagement” to show US support for the principle of the sovereign equality of states, the result is pressure to change on the US and a handful of others alone.
If most of my international law professor confreres were honest, they would admit freely that they are not supporters of the First Amendment as written and currently applied. Their view of how a democratic society should govern speech is probably closest to Canada, not the United States. At most, they might think it okay for the US if limited to the US, but not for the rest of the world, but probably not truly even that. In that, they partly bring a liberal internationalist perspective to the table and partly simply the general distaste in this era of the American left for a provision of the Constitution that has turned out, unexpectedly, to be of service to the American right. Eric Posner is correct in his view that the interest of what he called “transnationalists” — he had Dean Koh in mind in his post here at VC — is to use international law as a tool of an end-run around domestic US democratic processes. It’s about US domestic law. That’s how you can support engagement with a process that, in real terms, could only result in changes to the US way of doing things but not to Iran. Ultimately your deepest interest in international law is about how they do things in Des Moines, not Damascus.
My estimation of my fellow academic international community is that it does not favor specific rules that treat criticism of religion — read Islam — out of bounds. But they do in general think that speech needs to be “managed” by human rights standards, which is to say, by international law experts of one kind of another. Left to themselves, the peoples of the world will use unmanaged speech to slaughter each other, and from there it is unfortunately a slippery, if long, slope to managing speech on a identity group basis. The model, once again, is Canada and its “gentle” but relentless forms of social control over speech. I think that most of my colleagues, put to a vote, would think that the HRC draft compromise is substantively about what free speech should mean. Which is to say, however, that I think my community of international law scholars would like it to be applied in pretty much the ways that Eugene finds most troubling. Unfortunately, if one thinks this is so, as I do, then people like Eugene who do favor the robust view of speech largely favored by American jurisprudence need to be very careful in accepting what international law scholars might sententiously say does not undermine US protections of speech. Their idea of that and Eugene’s are not likely, in my experience, to be the same; not in bad faith, let me be careful to say — but not the same, either.
Look, for example, at the discussion of free speech and the emergence of a transnational, global judicial community in A New World Order; Anne-Marie Slaughter carefully does not want to denounce US free speech standards — but she still characterizes them as “outliers.” In one sense, descriptive and entirely correct — the US is objectively an outlier on speech. In another sense, however, the effect of using such terms as “outlier” is to suggest that the US ought to think not merely of itself and whether it thinks, on its internal standards and history and beliefs, that it is right, but instead that it occupies an “outlier” position on a set of international community standards. And the soft implication is that the US should care. In that way, it is hard to resist the sense that ‘outlier’ has a prescriptive connotation here as well — an invitation to the US, and to US judges as they come to think of themselves as not merely “US” judges, but participants in a “transnational” community of judges developing, on some important things — many important things, insofar as human rights now offers a view on nearly everything — loose standards that also look to each other horizontally across the world. In that world, to be an outlier on free speech is a subtly prescriptivist statement and, frankly, a disturbing one if you are me or, I imagine, Eugene.
Again, this is not to suggest that my colleagues argue in bad faith — it is just that the idea of free expression, for all but a handful of self-identified “conservative” or “libertarian” international law types, is, in all good faith, not what the jurisprudence of the First Amendment today grants to Americans. One can perhaps live with it provided that it is subtly de-legitimized as an “outlier” position, and provided that it is strictly limited to the US, and provided also that other mechanisms — libel tourism, for example — allow more internationally enlightened standards to rein in what Americans allow themselves but also allow to spill over to the world of discourse abroad. As one participant in some panel said somewhere in the late 1990s, at the dawn of the global internet age, the problem with American speech is that the US is not just an “uncontrolled” haven for speech for its own people — we could maybe live with that — it’s that it serves as an “uncontrolled” haven for others in the world, too.
This, in turn, is rooted in a view of polities that takes deep offense, in the first place, at the idea that political communities ought to be self-governing, in the specific sense that the US sees its constitutionalism, from the bottom up, popular democratic sovereignty mediated by a constitution which has the democratic assent of its political community. The alternative, internationalist, view is that constitutions and constitutional standards, including on matters such as speech, are a matter of national expression of universal human rights — which in turn means universal rights as finally interpreted and defined by international bodies. A top down view of the source of legitimacy — and a quite mistaken, in my view, conflation of “universal” and “international.”
The vision of the world being put out by this form of speech management is one that aims at global identity politics and global elite management of speech and other things in the interests of what amounts to global “communalism.” At this point in time, the source of that communalism today is religion, as the relentless pursuit of offense to religion by the leading Bad Actors at the HRC of this issue makes clear. The foolishness of the “always engage” policy is to believe that if one only were to take that reference out of the HRC draft, it would be magically be okay. But this question of religion is not going to disappear because it is in or not in some draft. If you are the serious, or even not so serious, Islamic republics, the world’s theocracies or even semi-theocracies, then this is the cornerstone of values in this matter of human rights. It is a battle that cannot be “engaged” except to lose by dribs and drabs in venues such as the Human Rights Council, or frankly anywhere in the UN.
The final point here is that both human rights and liberal internationalism appear to be in the process of changing their meaning. The American conservative or, more precisely, democratic sovereigntist, complaint about human rights has traditionally been that it is a tool by which self-defined political progressives pursue agendas that they cannot manage to achieve through domestic democratic mechanisms. That remains true and part of the on-going expansion of ‘human rights’ as a way of talking into simply a substantive agenda of progressive politics. Far more important than that, looking into the future, is the way in which human rights is being transformed from a liberal language of individual rights into a communalist language of group rights, illiberal and multiculturalist.
Liberal internationalism, I’d suggest, is gradually becoming “multicultural internationalism.” Human rights loses its central meaning of individual liberal claims and becomes a mechanism for managing global communalist, principally religious, claims. It gradually turns the ideal of a liberal world into a vision of a quasi-Ottoman empire writ global, facilitated, ironically, by a language of human rights that gradually allowed itself to be redefined into something illiberal. Accommodating of group identities, to a certain extent, because, in its own way, the world of the Ottoman empire was both accommodating and humane. But not secular and still illiberal.
(One fast update: I see I’m taken to task in the comments for attributing things to the “international law community” or IL professoriat at large without naming names or otherwise backing this up. I mention it because this is a fairly common charge in comment threads about various kinds of generalizations in blog posts, mine and zillions of others. Sometimes I think it a fair point, other times not. This is really a longer, separate post about ethics of blog posting, but actually, at least on this occasion, I don’t think — contrary to the comment — that I owe any recitation of particulars. This is not an academic paper; it’s a blog post. I’m asserting a generalization — “if my confreres were honest about it” — on the basis of my long experience with a particular academic community. Sure, your mileage may differ. But no, look, in a blog post, I don’t think I have any obligation to spend another five pages putting in particulars. If that means I’m just asserting it on my personal authority, nothing more, that’s right, and fine by me. If I thought I had to provide academic chapter and verse for stuff in blog posts, I wouldn’t blog. If you conclude, on the other hand, that I routinely really have no idea what I’m talking about, then presumably you’ll do that “exclude x” function; all good.
That, of course, is partly because I think I do know this particular community pretty well and think I’m right about that — not as some hidden agenda of whatever, nor some dark conspiracy, but simply because — without using up time of my research assistants, but simply consulting my own sense of this scholarly community (so, again, if you want to dispute this for not having so much as run a Westlaw search, sure, you can, and I’ll merely shrug and say, well, you can’t please everyone) — I can’t think of very many occasions on which US First Amendment standards have been defended as the right thing, whether for the rest of the world or, as my impression goes, even for the United States.
I haven’t read everything, and perhaps there is some body of literature out there I’m unaware of — but it is not really very likely. The feelings in the international law professoriat, to judge by its scholarship at least, or my distilled recollection of it, are that the jurisprudence of the First Amendment does not take hate speech seriously enough. If that is an accurate characterization, even if merely on my take of it, then I think that if you are Eugene, and hold his views on hate speech, that is not irrelevant information to you.
But, more broadly, in the ethics of blogging, as it were, the fact that I have not “named names” or spent five pages documenting what is plainly my own view of a community in which I have been a long and active participant is not an issue. One might dispute my characterization, but merely to say ‘you didn’t document your subjective impression’ does not actually move me, at least not when it comes to blogging. This is a very important reason, however, why I am skeptical about citations to blog posts, at least on the ethics with which I offer them, in actual scholarship. I’m not doing scholarship here.)
Martinned says:
Ahh, isn’t American exceptionalism a wonderful thing? Gives ya that wonderful warm fuzzy feeling inside... I can exactly imagine what it feels like, being from Europe where we are far superior to the United States in every conceivable way.
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October 2, 2009, 10:46 amMartinned says:
So much for original public meaning originalism.
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October 2, 2009, 10:47 amMartinned says:
Tell that to the Bong Hits 4 Jesus kid. The US first amendment is also a compromise, for example between conservatives and liberals, and across pretty much any other major division you can name in the US.
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October 2, 2009, 10:49 amyao says:
“If most of my international law professor confreres were honest, they would admit freely that they are not supporters of the First Amendment as written and currently applied.”
If you’re going to bandy about this kind of statement, I think you should name names. Also: if your colleagues tell you they like the 1st amendment just fine, will you claim they’re just not being honest?
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October 2, 2009, 10:51 amMartinned says:
That depends on what it is they’re negotiating. What we’re talking about here, specifically, is a UN HRC resolution, not a treaty. Since the subject of negotiation here is diplomatic, not legal, there is enough wiggle room in all major concepts that the US can “accept the result” without violating its own constitution.
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October 2, 2009, 10:52 amMartinned says:
It’s a slightly amended version of the No True Scotsman fallacy.
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October 2, 2009, 10:53 amMartinned says:
It’s in the eye of the beholder: US engagement matters to those who like that kind of thing. No amount of engagement is going to make our friend Ahmadinejad a nice guy, but engaging might earn the US some diplomatic brownie points from other countries, that they can later cash in.
BTW, I’m not sure how the two alternatives you mention are contradictory. Surely it is possible, as a matter of logic if nothing else, for them both to be true?
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October 2, 2009, 10:57 amPJens says:
I agree with Mr. Anderson, this is a mistake from the beginning.
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October 2, 2009, 11:07 amMartinned says:
Have you read the draft? (N.B. it’s a Word document.) You should try it. As far as compromises go, this one turned out pretty close to US orthodoxy. (Given that apparently it was a joint US/Egyptian proposal.)
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October 2, 2009, 11:23 amBob White says:
Amen, Prof. Anderson, amen.
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October 2, 2009, 11:34 amwooga says:
From the draft linked by Martinned:
Article 19(3) then says:
That’s an exception that swallows the rule. Although (p)(i) walks this back a bit, it seems to do so only to ensure political speech and the right of minorities to dissent on religious issues. I.e., the pope should still watch his tongue when talking about Islam. But going back to the draft, we see they are just getting started:
Uh oh, I better not tell that “Rabbi walks into a bar” joke anymore.
Ooookay.
I.e., speech codes are okay, as long as they are necessary to protect public morality or somebody’s reputation.
Time to take down the “stuffwhitepeoplelike” website.
So free speech is good insofar as it combats racism, but bad insofar as it promotes racism. Free speech is allowed — just as long as it is not offensive to the tribunal’s senses.
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October 2, 2009, 11:46 amMartinned says:
@wooga: Did you see prof. Volokh’s analysis of the draft? He cut out pretty much the same sections you did. My point in posting the link was exactly to get people to actually read the entire thing. It’s only a few pages long.
No it’s not, it just makes clear that defamation laws, as well as what American lawyers call time/place/manner restrictions are still OK. It’s that funny thing where us Europeans like to write the exceptions into the law instead of having the courts make them up as they go along.
As for the rest of your concern, I refer you to my earlier remarks. This is not law. If the HRC “expresses concern” about something, that doesn’t mean they’re ordering the culprits to be thrown in prison.
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October 2, 2009, 11:59 amSuperSkeptic says:
Yeah, I’m with Wooga and Prof. Anderson. This is why I would not “engage” with those who limit or acknowledge “exceptions” to the First Amendment even in this country. Also why I give Professor Volokh a hard time about his non-absolutist First Amendment stance here in his own site. It’s like Professor Anderson says, “engaging” invariably compromises the principle — slowly, but surely.
If we are an outlier, would it be that we were more of an outlier.
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October 2, 2009, 12:06 pmSuperSkeptic says:
Martinned,
But the whole point of freedom of speech under the First Amendment is that it is not open to compromise
Tell that to the Bong Hits 4 Jesus kid. The US first amendment is also a compromise, for example between conservatives and liberals, and across pretty much any other major division you can name in the US.
I agree with you, tell that to the Bong Hits 4 Jesus kid — who got railroaded. It IS a compromise, but the fact that it is a “compromise” is the problem, NOT an examplar of an attribute of the law. Such “compromising” is the problem with the Court’s balancing tests with regard to our “fundamental rights” — they are too subjective and allow the Courts to ignore the principles of the written Constitution and instead subject them to their balance du jour. Not a positive aspect of our law.
As for Europeans’ “laudable” foresight in crafting exceptions ahead of time: There’s a reason we didn’t craft an exception to the first amendment for drug references like “bong hits 4 jesus” — we didn’t want one. It is through judicial cowardice (to uphold the First to its fullest) and/or bias that we now have such an exception for marijuana references. It’s bad enough the judges do it sua sponte, but to give them a textual basis to do so would make it even worse.
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October 2, 2009, 12:16 pmjn heath says:
That’s a lot of highbrow verbiage for what any parent knows. You never deliberate ice cream with your 5-year-old when you have no intention of giving it to him. There’s nothing to talk about. The First Amendment is not up for discussion. Go to bed.
JNH
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October 2, 2009, 1:12 pmKazinski says:
I couldn’t agree more with Prof. Anderson. And I think we should say the same to small arms control treaties that attempt set up international gun control regimes.
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October 2, 2009, 1:16 pmwooga says:
Martinned, “time, place, and manner” restrictions are, by definition, content neutral. Regulation of defamation, religious insults, and racial stereotypes are all content based. This “content based” or “content neutral” distinction determines the vastly different levels of scrutiny applied to the laws. In America, it is extremely difficult to have a content based speech law upheld.
Here, we see the international embrace of laws “For respect of the rights or reputations of others” means something different than defamation. You can destroy someone’s reputation just by pointing out their hypocrisy, for example.
Speech laws “For the protection of... public order... or of public health or morals” really have no equivalent in the U.S. We already know that “public order” in Europe is not the same as the U.S. “incitement to violence” (with all sorts of imminent/intent restrictions) laws. “Public order” in the UK dictates arrest of a white Christian (a.k.a the defined “non-minority”) for disputing the basic tenets of Islam, for example.
Laws regulating speech for the protection of public morals?!?! That’s gone the way of the dodo in the U.S. — preservation of public morality is no longer even a legitimate state concern (e.g., the courts’ rejection of that as a basis for anti-gay laws).
Basically, it boils down to this: Europe is content to allow a heckler’s veto. The US rejects that.
BTW, I had not read Prof. Volokh’s post on this issue.
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October 2, 2009, 1:31 pmMartinned says:
All law is compromise. Even a contract between two people. (Especially a contract between two people!)
BTW, and lest I forget, today’s Charlemagne column in The Economist contains an excellent analysis of “The Atlantic Gap”, the unexpectedly difficult relationship between Obama and his European friends. About compromise, he writes the following:
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October 2, 2009, 1:35 pmNorthern Dave says:
Brilliant assessment.
Point 1) I think any reasonable person would agree that Kenneth’s characterization of non-US legal views would fit with such names as Louise Arbour for those looking for specific persons holding said views. It is a totally elitist we-will-decide-for-the-serfs attitude.
Point 2) No Martinned, in the Netherlands there is no committee (yet). The health care officials just give you the poison-laced orange juice whenever they feel like it.
PS — holding Europe up as an example of consensus might be premature before the Irish result is announced tomorrow :-)
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October 2, 2009, 2:03 pmSuperSkeptic says:
Wooga,
Laws regulating speech for the protection of public morals?!?! That’s gone the way of the dodo in the U.S. — preservation of public morality is no longer even a legitimate state concern (e.g., the courts’ rejection of that as a basis for anti-gay laws).
I wish it were true, but it’s not. It is still a very valid and legitimate state interest. A good example is Zoning Laws.
Martinned,
Law is a compromise, yes, which might be why I dislike much of the positive law created by our Congress. The true focus of the compromise though, should not be there, but rather the compromise that is embodied in the U.S. Constitution and our State Constitutions. Although “Europeans have been brought up to value consensus” in the conduct and creation of their positive law, in the U.S., at the Constitutional level is where the focus on “consensus” should be directed. There, our consensus remains fixed: “Congress shall make no law...”
* * *
All law is compromise. Even a contract between two people. (Especially a contract between two people!)
As an aside, this conflates positive law imposed involuntarily by government with “law” between two consenting, contracting individuals or parties. Let us not forget that the Consent Theory of Constitutionalism remains as fictional as corporate personage. Unless you would argue that a continuing benefit of society and government coupled with non-revolution creates an implied consent to your respective Constitution — in which case I would argue that that’s one way of describing Stockholm’s syndrome.
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October 2, 2009, 2:12 pmSuperSkeptic says:
Europeans also know that “European-style” health care does not include death panels prescribing euthanasia for grannies and are offended by the way such tosh is alleged in America.
Well, those Europeans who Mr. (Mrs.?) Charlemagne alleges are offended should understand that such talk is not meant literally by those engaging in an honest debate on the merits, but rather as an argumentative-tool.
See Professor Volokh’s article on “Slippery Slope Arguments”:
http://www.law.ucla.edu/volokh/slipperymag.pdf
or a Professor Bainbridge blog post written about the health-care debate citing in America citing and discussing Professor Volokh’s article:
http://www.professorbainbridge.com/professorbainbridgecom/2009/08/obamacare-on-a-slippery-slope-to-where.html
The concept of the slippery-slope discussed is salient in the First Amendment or Free Speech context we are now discussing.
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October 2, 2009, 2:27 pmMartinned says:
Well, I have to say, I don’t think consent theory is all that bad. There’s exit and voice, and to the extent that people use neither, I think it is reasonable to conclude that they consent in the manner in which they are governed. (I.e. the constitutional system.) Where I live, I could easily move 20 km down the road to Germany. The reason that I don’t isn’t just a matter of being too lazy to commute, but also that amongst other things, I prefer the Dutch system of government. The same approach works even better for US state constitutions. (That would be exit.)
@Northern Dave: Here’s an english language summary of Dutch law on euthanasia. Thank you for playing. For what it’s worth, having very libertarian laws on things like euthanasia is one of the other (non-constitutional) reasons why I prefer the Netherlands over Germany.
As for the referendum, don’t get me started...
P.S. I forgot to post the link to Charlemange. Here it is.
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October 2, 2009, 2:32 pmwooga says:
it boils down to this: Europe is content to allow a heckler’s veto. The US rejects that.
To make a very broad generalization from this already broad point, I see this as one of the many ways in which Europeans place society over the individual, whereas Americans historically were more pro-individual. When societal disorder is a greater concern than an individual’s speech rights, you want a heckler’s veto. When societal equality is a greater concern than individual property and individual economic liberty, you favor socialism over capitalism, and statism is desired. It’s just a question of how you view the “social contract.”
Since I am making the individual-society distinction, I should preemptively point out that individualism /= libertarianism /= anarchy. Just because one disfavors big government does not mean one is an anarchist (i.e., police to protect property accumulation), and just because one is in favor of free markets does not mean one is for unfettered capitalism (i.e., anti-trust laws to protect competition). It’s a question of what is the purpose of government: preservation of liberty, enforcement of equality, or whatever.
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October 2, 2009, 3:44 pmNorthern Dave says:
Thanks for the link Martinned. I love the language below.
“The percentage of euthanasia cases reported by doctors has risen sharply, and doctors appear to have complied with the due care criteria for euthanasia in virtually all reported cases.”
I wonder what it feels like to be one of the ones where the doctors haven’t complied with due care criteria?......
I rather think this letter to the Times from June 16th this year is more to the point....
http://www.timesonline.co.uk/tol/comment/letters/article6513758.ece
Again, thanks for the link. It confirms unsolicited and involutary euthanasia is ongoing in the Netherlands! How long until this model extends to groups, I wonder.....
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October 2, 2009, 5:04 pmNorthern Dave says:
I think I have to go off and review Eugene Volokh’s famous,
“THE MECHANISMS OF THE SLIPPERY SLOPE” on this one.
link for the draft:
http://www.law.ucla.edu/volokh/slippery.pdf
(On page 1057/1058 in the link it mentions the Netherlands euthanasia situation but I think the overall considerations of the paper might be applied to the above UNHRC understanding and Kenneth’s concerns.... )
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October 2, 2009, 5:38 pmlk says:
Martinned: “This is not law. If the HRC “expresses concern” about something, that doesn’t mean they’re ordering the culprits to be thrown in prison...”
... yet.
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October 2, 2009, 6:19 pmjsr says:
Well, of course liberal internationalism is becoming (has become?) “multicultural internationalism.” How could it not, since liberalism at home has long since undergone that transformation, trading in its former belief in an individual right to be treated by the state, as the quaint and now (to liberals) dated principle had it, “without regard to race, creed, or color” in favor of a state regulatory regime handing out benefits and burdens based on race?
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October 2, 2009, 7:32 pmFlavio Trillo says:
SuperSkeptic,
am I right in saying that you do not approve of, for example, the Miller Test and its consequences for sexual content, child pornography, etc.? As far as I can see, in this domain, the First Amendment is very much restricted for the sake of groups, their protection and the balance with other human rights/civil liberties.
I can quite understand that a country that has fought so hard (and especially so recently, compared to many others) for them, holds its absolute freedoms high and doesn’t tolerate compromise in this regard. However, any freedom demands compromise as soon as there is more than one of them around. The US is no exception as there is ample proof of exceptions and regulations of Free Speech, as much as one might hope otherwise.
And it’s not only content-neutral regulations either, as is quite obvious in the above mentioned example of the Miller Test.
Now, if you oppose this, you’re quite right, the judicial practice of allowing the rights of others to somewhat compromise the First Amendment is a negative aspect of the US legal system, indeed. But what about other liberties? Other important rights? Free Speech is quite nice, but consider property (intellectual and material), physical and psychological violence (hate speech, etc.)? Balancing is part of the game, even in the US.
br,
F.
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October 3, 2009, 5:07 amMartinned says:
And given how random national borders are (something that came up in DB’s Olympic Games thread), there’s no fundamental reason why this balancing should be done at one level rather than another, except subsidiarity. What subsidiarity tells you about human rights depends on how universal and “self evident” you think they really are. Can China keep out American movies because their “public morality” is different than ours? The Miller test, aforementioned, involves “community standards”. Is that correct? And, if so, how big is a “community”? That’s all about subsidiarity.
The fact that the United States “is a sovereign democratic political community – in Lincoln’s words, “a political community, without a political superior.”” does not mean that all law has to be made in Washington. Much of it is made at a lower level. (Aside: no matter how much the states are co-sovereign in the US constitutional sense, prof. Anderson clearly used the word sovereign in the international law sense here, meaning that only the United States as a whole, represented by the Federal government, is sovereign.) The question of where the ultimate sovereignty lies is important because it determines where the buck stops. That’s it.
The more absolutist (?) you are about your human rights, i.e. the more strongly you feel that all human beings have the same rights, the less reason you have to disfavour a strong (!) international human rights regime. Unfortunately, the people of the world can’t seem to agree on what those rights should be, which is a bit of a problem for the universality hypothesis.
(Aside: I don’t know how to fix that one either. I strongly believe that the core human rights are universal, with only things like Miller tests to create regional variations, but at the same time I observe that the people of the world seem to disagree. For example, I strongly believe that out of Locke’s classic triple of “life, liberty and property”, life is the most important one. That normally doesn’t matter, because the government should protect all three, but for me it does mean that your government should not kill you for any reason whatever. However, it seems like that opinion is far from universally shared.)
More importantly, no comprehensive global human rights regime is possible as long as many, many countries are still opressed by Communist “parties”, military juntas, dictatorships of various ilk, etc.
In the mean time, there are only regional compromises, such as the US Constitution, the Canadian Charter, the EU Charter, the ECHR, etc, as well as compromises on sub-fields, such as CAT.
I left the ICCPR out of that list on purpose. Not only is it not a compromise freely made by all, it is also a diplomatic statement more than a legal document. And that goes even more for the resolutions adopted by the HRC, a body which, incidentally, has nothing to do with the ICCPR and derives it legitimacy (and powers) solely from a UN General Assembly resolution. (The ICCPR has a human rights committee, but its members are individuals, not states.)
Finally, I’d like to point out that group rights are very much a conservative project. Obama may have flirted with Etzioni, the world over communitarianism is a christian-democratic pipe dream. (Which once again shows that Obama is centre-right, substantively.) They all see it as the new version of that good old — now lost — Sunday church feeling. Legally, laws against defamation of religion are pushed by conservatives looking to please their church-going constituents. “Keeping the peace” by locking up the hecklers is similarly a conservative thing. The recent VC post criticising the Dutch government for going after these AEL cartoonists concerned a policy agreed ultimately by our Christian-Democratic justice minister and our Christian-Democratic Prime Minister. (In Dutch politics on speech, Geert Wilders is a bit of a strange quantity. He pushes strongly for his own freedom, but at the same time proposes banning the Quran.)
This shows again that the bipartisan US model doesn’t necessarily work even there. Libertarians are not conservatives, and conservatives are not libertarians. European politics usually involves at least three groups: Christian-Democrats (=conservatives), Social-Democrats and Liberals (=libertarians). In the European Parliament, for example, they have 265, 184 and 84 seats, respectively, out of a total 736. The party of which I am a member, which incidentally is also Ayaan Hirsi-Ali’s party, is by nature a liberal/libertarian party, but is constantly threatening to give in to the conservatives or the extreme right, because that’s where the votes are. (Not good for my peace of mind.)
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October 3, 2009, 6:07 amdispatches from TJICistan » Blog Archive » the whole point of freedom of speech … is that it is not open to compromise says:
[...] rather magesterial long form post over at Volokh on how free speech absolutism is a good thing, how most statists [...]
PicoBusiness » The Volokh Conspiracy » Blog Archive » Globally Managing American Speech? says:
[...] The Volokh Conspiracy » Blog Archive » Globally Managing American Speech?. This whole process of “engagement” on an issue like free speech by the US at the HRC or anywhere else in the international system is a mistake from the beginning. Among the many reasons is, first, that a process like that of the HRC is designed to lead to consensus, which in practice will mean some kind of compromise. But the whole point of freedom of speech under the First Amendment is that it is not open to compromise, and certainly not in the sense of elaborating standards from the outside for a sovereign people who govern themselves under a constitution. [...]
Blawg Review #233 | Popehat says:
[...] Volokh has some concerns about the revised resolution brokered by the United Sates and Egypt, and Kenneth Anderson questions whether “engaging” on civil liberties necessarily compromises them. Meanwhile Jonathan [...]