with one Justice dissenting. So reports SCOTUSblog; I’ll post more when I learn more. My post about Justice Kennedy’s similar action yesterday is here. For now, I continue to think that the Ninth Circuit’s decision overturning the district court’s preliminary injunction against release of the signatories’ names — and thus allowing the state to release […]
Archive | Freedom of Speech
Justice Kennedy Temporarily Stays Release of Names of People Who Signed the Washington Anti-Same-Sex Marriage Initiative
I can’t find the order online yet, but the AP so reports: Kennedy’s ruling today temporarily blocks a federal appeals court ruling last week that ordered the release of the names. Kennedy said his order would remain in effect while he considers a request by a pro-marriage group that asked him to reverse the appeals […]
Ninth Circuit Overturns Preliminary Injunction Restraining Release of Names of Anti-Domestic-Partnership Petition Signers in Washington State:
The Ninth Circuit order states that “An opinion setting forth the reasons for the court’s reversal of the Preliminary Injunction Order shall be issued expeditiously and in due course,” so I can’t speak directly to the Ninth Circuit’s reasoning. But for reasons I mentioned when the release of the signers’ names was first enjoined, I […]
Peter Berkowitz on Academics and Free Speech
By Kenneth Anderson on October 17, 2009 7:27 pm in Freedom of Speech, Freedom of Speech at Colleges and Universities
Peter Berkowitz takes up the argument over Yale and, by extension, the rest of the American academy, concerning Yale University Press’s shameful censorship of a book on the Muhammed cartoons – with his usual careful argumentation and coherence. Kudos to Peter; here in the WSJ.
Globally Managing American Speech?
By Kenneth Anderson on October 2, 2009 10:19 am in Constitutional Theory, Freedom of Speech, International Law, Politics, Religion and the Law
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. 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.
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?
Is the Obama Administration Supporting Calls to Outlaw Supposed Hate Speech?
That’s what it looks like, with this Joint U.S./Egypt draft U.N. Human Rights Council resolution (dated Sept. 2009). The resolution generally seems to be an attempt to urge more protection for free speech throughout the world, and some praise it for that; moreover, it lacks the exception for “defamation of religion” that some Muslim countries […]
Pro Bono Free Speech Case Headed to the Nebraska Supreme Court:
I’m delighted to say that the Nebraska Supreme Court has just agreed to review State v. Drahota (Neb. Ct. App. June 16), a case that I am litigating pro bono. We don’t have an oral argument date set yet, but it will probably be during the first week of November. Here is my argument, from […]
Justice Brandeis
By David Bernstein on September 29, 2009 8:08 am in Constitutional History, Freedom of Speech, Supreme Court
The New York Times has published two reviews of Mel Urofsky’s new biography of Louis Brandeis. I haven’t seen the book yet, but Mel had sent me the page proofs of several chapters earlier this year, and they were great. Whiles the parts of the book I read struck me as admiring but with appropriate […]
Testing 123
Testing. One two three three and a half four five six Block quote. More in the block quote.