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  • What Happens When the First Amendment Meets Criminalization of Speech?

    As we pointed out on Monday, State Department Legal Advisor nominee Harold Koh’s praise for the “Inter-American Convention Against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials” is misguided in several respects. One of these is that the Convention requires all signatories to criminalize the “counseling” of the commission of the illicit manufacturing of, or trafficking in, firearms.

    What would happen if the Senate ratified the Treaty – which President Clinton signed in 1998, and which the U.S. already abides by spirit – without making a reservation against this clause? The dispute would soon make its way into the U.S. court system, to be adjudicated as a conflict between the U.S.’s treaty obligations and the First Amendment of the Constitution: the former calling for the criminalization of speech, the latter proclaiming the right of free speech.

    In this conflict, most Americans would side with the First Amendment. But where would Koh stand? In a 2003 article “On American Exceptionalism,” published in the Stanford Law Review, Koh recognizes that the U.S. affords far greater protection than most countries to free speech. For Koh, this is cause for a measure of concern:

    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.

    So, the U.S.’s differences from the rest of the world are not “too deeply unsettling” and, thanks to EU law, can be tolerated to “some measure.” Thank goodness. But how far should they be tolerated? In a footnote, Koh gives his answer:

    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.

    So what would happen if the U.S. court system took up a case brought by the incompatibility of the Convention and the First Amendment? That would be up to the courts to decide. But what would Koh want the courts to do? The Convention is one of Koh’s much-admired ‘transnational norms,’ whereas the First Amendment is an example of American exceptionalism – and anyone who thinks that ‘exceptionalism’ is a term of praise has not spent any time in academia.

    The implication is that, when it causes “problems abroad,” the First Amendment should be subject to that “transnationalist approach to judicial interpretation,” to “moderate . . . conflicts” by ensuring American speech did not conflict with the Convention. And that would mean restraints on speech in the United States.

    How can any member of the U.S. Senate, all of whom rely on freedom of speech every day, and all of whom have sworn to uphold the Constitution, support this position? Yes, the U.S. is an exceptional country in many ways, including the fact that the First Amendment guarantees the right of free speech for all Americans, and that exceptionalism should be a source of pride. The idea that the U.S. courts should limit or ‘reinterpret’ those rights to ameliorate “problems abroad” is illiberal and wrong.

    Posted in Legal [slideshow_deploy]

    20 Responses to What Happens When the First Amendment Meets Criminalization of Speech?

    1. MikeZu812, San Anton says:

      Amen. Why do I find it funny that all those on the left that whined and yelled about the previous administration's alleged assault on their Constitutional rights are now strangely silent as this administration openly and vigorously attacks the very foundations of this great nation? Where is the outcry from the right this time? I do not fancy myself a "Chicken Little" type running around yelling the sky is falling every time a liberal speaks, but this administration is blatant in its desire to "remake" this country in the image they desire. 200+ years and we are still "Exceptional"! Stop trying to change my country!!!

    2. Kay B. Day, Jacksonv says:

      Koh is probably the most worrisome of Obama's selectees (with Napolitano running a very close second at the moment.)

      Rick Santorum did an excellent analysis for the Philly newspaper not long ago. He wrote, “What is indisputable is that Koh calls himself a ‘transnationalist’. He believes U.S. courts ‘must look beyond national interest to the mutual interests of all nations in a smoothly functioning international legal regime. …’ He thinks the courts have ‘a central role to play in domesticating international law into U.S. law’ and should ‘use their interpretive powers to promote the development of a global legal system.’"

      I used that in an article I wrote elsewhere.

      More than 30 states have issued declarations or resolutions about state sovreignty. Koh is just another in a long line of motivationals for that phenomenon.

      Koh's internationalism represents a threat to our country in a number of ways, and some of those can't even be foreseen at present I am certain. National security comes to mind.

      best, Kay B.Day

      The US Report

    3. Lynn B. DeSpain says:

      My rights as an American Citizen include free Speech. I am not a part of the European group, nor am I part of the World group. I am an American.

      Without the rights of assembly, Free speach, bearing Arms, what have we to protect ourselves from our poloticians?


    4. Richard, Spring, TX says:

      I thought Congressmen had to take an oath to protect and defend the Constitution. This sounds like a direct attack against the Constitution and should be grounds for impeachment.

    5. Ric, Florida says:

      I am deeply disturbed that this nation has fallen prey to morons who put the interests of other nations, and other people ahead of our own.

      I don't want to come off sounding like a nationalist. That's not my point at all. We as a nation, however, look to our government to protect our rights from the government, which includes the courts. Expecting our government, including the courts, to quash free speech in the name of … not our greater good … but some other greater good, other than American greater good … well that's outrageous!

      This nation was founded, as the article states, on the exceptional philosophy that freedom, liberty, industry and personal rights trump not only our own government's interests, but especially governments of other nations.

      If that's a "nationalist" philosophy as opposed to a "transnationalist" philosophy, then well call me a nationalist.

    6. Anita, Tyler,TX says:

      If we impeached all that believe as Koh, there'd be no one left to run the country……which we would probably be just as well off.. God Bless America and please hurry.

    7. Paula from Canton Oh says:

      We need to impeach all those whose objective it is to change our Constitution. Our only alternative is to sit back and do nothing. I for one would gladly sign a national petition for impeaching this administration. Apparently B.O. lied through his teeth when he swore the Oath of Office. We desperately need a President that will put our national interest above his ego and whom the media doesn't like. The media are just as culpable with the downfall of this country by not doing their job. With him sitting in office, we don't need enemies.

    8. Dirty Harry , AZ says:

      If we let the Obama administration continue down this path, we are surely doomed. It is time for all good men to come to the aid of their country. If don't start showing that we are going to do something besides just laying down and taking whatever the left wants to dish out, the we are already defeated. First they demonize then destroy!

    9. Charl526 Staten Isla says:

      It will only stop when they don't keep confirming these nominees. Has every member of the house and senate been dropped on their heads recently. What is happening to America. Can no one see past why Obama wants to keep aligning himself with certain believer type people. What is in the drinking water in Washington these days.

    10. Deborah, Warrenton, says:

      Is there any way that we, the citizens of the United States of America, can impeed and halt the serious assults and violations against our Constitution that the Obama Administration and the Congress are endeavoring to accomplish or must we wait until each one appears before the Supreme Court? If anyone has an answer, please respond.

      God Bless America!

    11. Taylor Graham says:

      Worriedly, I agree with Kay Day's comment 100%. So much of what Ohh-bama says and is doing – and his appointees- smacks of an absolute dictate that the U.S. must set aside (I think abrogate)all of our Constitutional tenets and foundational beliefs in order to become a World Country, no longer unique in all the world, or distinguishable from any other.

      His increasingly apparent first objective of turning us into a Socialist nation (hello, Chavez!) is followed with this second one that the United States of America must indeed turn away our greatness and perish from what we have been for 232 years. We are losing us.

    12. Loretta Perry , Colo says:

      It appears that members of congress have either taken bribes or been intimatated. They are not normal. More like stepford wives! It is bewildering. My best guess is whatever works fo that individual. They either fall in line with THE ONE or else. So all tactics are used including blackmail!

    13. Rebecca, San Antonio says:

      No wonder liberals admire the Castro brothers and Chavez so much…they know how to silence dissent. The only term that comes to mind is "political prisoners". Dissenters are only guilty because they disagree with the government…like most of the media's portrayal of the innocent Tea Party attendees who were peacefully exercising their First Amendment rights. There is an "Alinskyesque", orchestrated effort to isolate and villify those who disagree with this administration. When they can't think of a reason, they simply call us "redneck racists". Koh should have a lot of fun prosecuting that! Is anyone in the Supreme Court listening?

    14. duelles, Santa Fe, N says:

      Koh can take his European Union Law and stick it where the Sun Don't shine. Right along with Associate Justice Kennedy. This is the United States of America, formed by the ratifying states to serve the people. EOM.

    15. Cris in Cincy says:

      I agree with all the above comments. What can realistically be done to stop these people from destroying our America? If no one in the Congress or Senate will help "we the people", what can we really do? I have written my state representatives, but all they spit out are platitudes and that "we're working on this or that" but nothing ever comes of it. What can we citizens truly do to change the direction of our so-called leaders when they refuse do acknowledge the people they are supposed to be working for? I applaud things like the tea parties, but that hasn't gotten any of our conservative reps to push for impeachment, nor has there been ANY repercussions, except some whining on TV… Help us help ourselves!

    16. Domonu,Idaho says:

      I'm wondering if the false messiah has his secret police in place? Gestapo?KGB? This country was founded by people seeking freedom ,will we remember give me freedom or give me death. This slow erosion of our rights seems to have become a raging flood of destruction of our Constitution and Democracy. Someone please start a petition of impeachment start at the top and work down . High time to return the goverment to WE THE People,vote these fools out trem limits,funding limits and goverment answering to the people

    17. Marshall Hill MI. says:

      We are not involved with any World Order and I feel we can Avoid it like any other Bad Idea a

      LIB can come up with!

    18. Al, The Villages, Fl says:

      This man does not appreciate the uniqueness and brilliance of this democratic republic but instead seems to believe in this "world order" nonesense. Nonesense, I guess, except for those who rule and benefit by this. For some reason, the Obama administration and, unfortunately, many U.S. citizens seem to be enthralled by this same notion of socialism and world government. Somebody take care of me – be careful what you ask for. It is a tribute to the ignorance taught by our school system (a good reason to eliminate the dept of education and public schools as they are now structured).

    19. Paul, FL says:


      I had a dream the other night, I didn't understand. A figure walking through the mist with a flintlock in his hand. His clothes were torn and dirty, as he stood there by my bed. He took off his three-cornered hat, and speaking low he said:

      "We fought a revolution, to secure our liberty. We wrote the Constitution, as a shield from tyranny. For future generations, this legacy we gave, in this, the land of the free and the home of the brave."

      "The freedom we secured for you, we hoped you'd always keep. But tyrants labored endlessly while your parents were asleep. Your freedom gone, your courage lost, you're no more than a slave. In this, the land of the free and the home of the brave."

      "You buy permits to travel, and permits to own a gun, permits to start a business, or to build a place for one. On land that you believe you own, you pay a yearly rent. Although you have no voice in choosing how the money's spent."

      "Your children must attend a school that doesn't educate. Your Christian values can't be taught, according to the state. You read about the current news, in a regulated press. You pay a tax you do not owe, to please the IRS."

      "Your money is no longer made of silver, or of gold. You trade your wealth for paper, so your life can be controlled. You pay for crimes that make our nation turn from God in shame. You've taken Satan's number as you've traded in your name."

      "You've given government control to those who do you harm, so they can padlock churches, and steal the family farm. They keep our country deep in debt, put men of God in jail, harass your fellow countrymen, while corrupted courts prevail."

      "Your public servants don't uphold the solemn oath they've sworn. Your daughters visit doctors, so their children won't be born. Your leaders ship artillery and guns to foreign shores, and send your sons to slaughter, fighting other people's wars."

      "Can you regain the freedom for which we fought and died? Or don't you have the courage or the faith to stand with pride? Are there no more values for which you'll fight to save? Or do you wish your children to live in fear and be a slave?"

      "SONS OF THE REPUBLIC, arise and take a stand! Defend the Constitution, the supreme law of the land! Preserve our great Republic, and each God-given Right! And pray to God, to keep the Torch of Freedom burning bright!"

      As I awoke, he vanished in the mist from whence he came. His words are true, we are not free, we have ourselves to blame. For even now as tyrants trample each God-given Right, we only watch and tremble, too afraid to stand and fight."

      If he stands by your beside in a dream while you're asleep, and wonders what remains of our Rights he fought to keep. What will be your answer, when he calls out from the grave:


    20. Gino, Louisiana says:

      IS this still the land of the free?! How can free thinking Americans sit back and allow the nations media to pollute our homes and minds with attacks on our president, our freedoms, and our morals?

      The time to act is now! Its a simple numbers game. Sit back and do nothing, and be left with nothing.

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