The Volokh Conspiracy - Does a Move To Greater Internationalism Jeopardize American Free Speech Values?

Well, let's listen to Yale Law School Dean Harold Koh, now nominated to be the Legal Advisor to the State Department, in his On American Exceptionalism, 55 Stan. L. Rev. 1479 (2003):

By distinctiveness, I mean that America has a distinctive rights culture, growing out of its peculiar social, political, and economic history. Because of that history, some human rights, such as the norm of nondiscrimination based on race or First Amendment protections for speech and religion, have received far greater emphasis and judicial protection in America than in Europe or Asia. So, for example, the U.S. First Amendment is far more protective than other countries' laws of hate speech, libel, commercial speech, and publication of national security information. But is this distinctive rights culture, rooted in our American tradition, fundamentally inconsistent with universal human rights values? On examination, I do not find this distinctiveness too deeply unsettling to world order. The judicial doctrine of "margin of appreciation," familiar in European Union law, permits sufficient national variance as to promote tolerance of some measure of this kind of rights distinctiveness.

Good to hear that American free speech tradition isn't "too deeply unsettling to world order." But wait -- check out the footnote following this paragraph:

See generally Louis Henkin, Gerald L. Neuman, Diane F. Orentlicher & David W. Leebron, Human Rights 564 (1999). Admittedly, in a globalizing world, our exceptional free speech tradition can cause problems abroad, as, for example, may occur when hate speech is disseminated over the Internet. In my view, however, our Supreme Court can moderate these conflicts by applying more consistently the transnationalist approach to judicial interpretation discussed infra Part III.C.

And what is this "transnationalist approach" that can help "moderate these conflicts" caused by American constitutional protection for "hate speech ... disseminated over the Internet"? Here are the opening paragraphs of the discussion of "the transnationalist approach" is Part III.C:

What is transnational legal process? While most legal scholars agree that most nations obey most rules of international law most of the time, they disagree dramatically as to why they do so. As I have explained elsewhere, I believe that nations obey international law for a variety of reasons: power, self-interest, liberal theories, communitarian theories, and what I call "legal process" theories. While all of these approaches contribute to compliance with international law, the most overlooked determinant of compliance is what I call "vertical process": when international law norms are internalized into domestic legal systems through a variety of legal, political, and social channels and obeyed as domestic law. In the international realm, as in the domestic realm, most compliance with law comes from obedience, or norm-internalization, the process by which domestic legal systems incorporate international rules into domestic law or norms.

Under this view, the key to understanding whether nations will obey international law, I have argued, is transnational legal process: the process by which public and private actors -- namely, nation states, corporations, international organizations, and nongovernmental organizations -- interact in a variety of fora to make, interpret, enforce, and ultimately internalize rules of international law. The key elements of this approach are interaction, interpretation, and internalization. Those seeking to create and embed certain human rights principles into international and domestic law should trigger transnational interactions, that generate legal interpretations, that can in turn be internalized into the domestic law of even resistant nation states.

In my view, "transnational legal process" is not simply an academic explanation of why nations do or do not comply with international law, but, more fundamentally, a bridging exercise between the worlds of international legal theory and practice. My time in government confirmed what I had suspected as a professor -- that too often, in the world of policymaking, those with ideas have no influence, while those with influence have no ideas. Decisionmakers react to crises, often without any theory of what they are trying to accomplish, and without time to consult academic literature, which, even when consulted, turns out to be so abstract and impenetrable that it cannot be applied to the problem at hand. On the other hand, activists too often agitate without a clear strategy regarding what pressure points they are trying to push or why they are trying to push them. Scholars have ideas, but often lack practical understanding of how to make them useful to either decisionmakers or activists.

And so it is with American exceptionalism. Like so many aspects of international relations, this phenomenon has generated a tragic triangle: Decisionmakers promote policy without theory; activists implement tactics without strategy; and scholars generate ideas without influence. If transnational legal process is to bridge this triangle, how can we use that concept to press our government to preserve its capacity for positive exceptionalism by avoiding the most negative features of American exceptionalism? Let me illustrate my approach with respect to three examples from the September 11 context: first, America and the global justice system; second, the rights of 9/11 detainees; and third, America's use of force in Iraq....

Maybe I'm missing something -- Prof. Koh's discussion of just how the Court can "moderate ... conflicts" between First Amendment law and foreign countries that disapprove of American free speech on the Internet is rather vague here. But it sounds to me quite a bit like the predictions that Prof. Peter Spiro, another internationalist legal scholar, made about how international norms could reduce the scope of American constitutional rights: The President and the Senate can, in the long run, "insinuat[e] international law" that would create "a partial displacement of constitutional hegemony" (for instance, with "an international norm against hate speech ... supply[ing] a basis for prohibiting [hate speech], the First Amendment notwithstanding"). "As transnational society develops a common rights culture, one in which the disaggregated United States enjoys a voice, the supremacy of international rights may be normatively sustainable. In the short term, this argues for the relevance of international norms in domestic constitutional interpretation. In the long run, it may point to the Constitution's more complete subordination."

In any case, I thought I'd note this, so you folks can read it and decide for yourselves. Thanks to Ed Whelan (National Review Online) for the pointer.

	[Eugene Volokh, April 7, 2009 at 6:09pm] Trackbacks Does a Move To Greater Internationalism Jeopardize American Free Speech Values? Well, let's listen to Yale Law School Dean Harold Koh, now nominated to be the Legal Advisor to the State Department, in his On American Exceptionalism, 55 Stan. L. Rev. 1479 (2003): By distinctiveness, I mean that America has a distinctive rights culture, growing out of its peculiar social, political, and economic history. Because of that history, some human rights, such as the norm of nondiscrimination based on race or First Amendment protections for speech and religion, have received far greater emphasis and judicial protection in America than in Europe or Asia. So, for example, the U.S. First Amendment is far more protective than other countries' laws of hate speech, libel, commercial speech, and publication of national security information. But is this distinctive rights culture, rooted in our American tradition, fundamentally inconsistent with universal human rights values? On examination, I do not find this distinctiveness too deeply unsettling to world order. The judicial doctrine of "margin of appreciation," familiar in European Union law, permits sufficient national variance as to promote tolerance of some measure of this kind of rights distinctiveness. Good to hear that American free speech tradition isn't "too deeply unsettling to world order." But wait -- check out the footnote following this paragraph: See generally Louis Henkin, Gerald L. Neuman, Diane F. Orentlicher & David W. Leebron, Human Rights 564 (1999). Admittedly, in a globalizing world, our exceptional free speech tradition can cause problems abroad, as, for example, may occur when hate speech is disseminated over the Internet. In my view, however, our Supreme Court can moderate these conflicts by applying more consistently the transnationalist approach to judicial interpretation discussed infra Part III.C. And what is this "transnationalist approach" that can help "moderate these conflicts" caused by American constitutional protection for "hate speech ... disseminated over the Internet"? Here are the opening paragraphs of the discussion of "the transnationalist approach" is Part III.C: What is transnational legal process? While most legal scholars agree that most nations obey most rules of international law most of the time, they disagree dramatically as to why they do so. As I have explained elsewhere, I believe that nations obey international law for a variety of reasons: power, self-interest, liberal theories, communitarian theories, and what I call "legal process" theories. While all of these approaches contribute to compliance with international law, the most overlooked determinant of compliance is what I call "vertical process": when international law norms are internalized into domestic legal systems through a variety of legal, political, and social channels and obeyed as domestic law. In the international realm, as in the domestic realm, most compliance with law comes from obedience, or norm-internalization, the process by which domestic legal systems incorporate international rules into domestic law or norms. Under this view, the key to understanding whether nations will obey international law, I have argued, is transnational legal process: the process by which public and private actors -- namely, nation states, corporations, international organizations, and nongovernmental organizations -- interact in a variety of fora to make, interpret, enforce, and ultimately internalize rules of international law. The key elements of this approach are interaction, interpretation, and internalization. Those seeking to create and embed certain human rights principles into international and domestic law should trigger transnational interactions, that generate legal interpretations, that can in turn be internalized into the domestic law of even resistant nation states. In my view, "transnational legal process" is not simply an academic explanation of why nations do or do not comply with international law, but, more fundamentally, a bridging exercise between the worlds of international legal theory and practice. My time in government confirmed what I had suspected as a professor -- that too often, in the world of policymaking, those with ideas have no influence, while those with influence have no ideas. Decisionmakers react to crises, often without any theory of what they are trying to accomplish, and without time to consult academic literature, which, even when consulted, turns out to be so abstract and impenetrable that it cannot be applied to the problem at hand. On the other hand, activists too often agitate without a clear strategy regarding what pressure points they are trying to push or why they are trying to push them. Scholars have ideas, but often lack practical understanding of how to make them useful to either decisionmakers or activists. And so it is with American exceptionalism. Like so many aspects of international relations, this phenomenon has generated a tragic triangle: Decisionmakers promote policy without theory; activists implement tactics without strategy; and scholars generate ideas without influence. If transnational legal process is to bridge this triangle, how can we use that concept to press our government to preserve its capacity for positive exceptionalism by avoiding the most negative features of American exceptionalism? Let me illustrate my approach with respect to three examples from the September 11 context: first, America and the global justice system; second, the rights of 9/11 detainees; and third, America's use of force in Iraq.... Maybe I'm missing something -- Prof. Koh's discussion of just how the Court can "moderate ... conflicts" between First Amendment law and foreign countries that disapprove of American free speech on the Internet is rather vague here. But it sounds to me quite a bit like the predictions that Prof. Peter Spiro, another internationalist legal scholar, made about how international norms could reduce the scope of American constitutional rights: The President and the Senate can, in the long run, "insinuat[e] international law" that would create "a partial displacement of constitutional hegemony" (for instance, with "an international norm against hate speech ... supply[ing] a basis for prohibiting [hate speech], the First Amendment notwithstanding"). "As transnational society develops a common rights culture, one in which the disaggregated United States enjoys a voice, the supremacy of international rights may be normatively sustainable. In the short term, this argues for the relevance of international norms in domestic constitutional interpretation. In the long run, it may point to the Constitution's more complete subordination." In any case, I thought I'd note this, so you folks can read it and decide for yourselves. Thanks to Ed Whelan (National Review Online) for the pointer.