Former Yale Dean Harold Koh (Now Legal Adviser at the State Department) on Dealing with “Hate Speech” by “Applying … the Transnationalist Approach to Judicial Interpretation”

Related to my post about Prof. Peter Spiro’s views on how international law could be used to diminish the force of U.S. First Amendment protection, I thought I’d note again some thoughts that I noted in 2009 from Harold Koh, former dean of Yale Law School and now Legal Adviser at the State Department, in his 2003 Stanford Law Review article On American Exceptionalism. Dean Koh, one of the most prominent and influential legal internationalists in the U.S., identifies the tactics that fellow internationalists can use to help shift American constitutional law to more closely mirror “international law” norms, including when it comes to “hate speech.” Here are some excerpts (emphasis added):

[I]n a penetrating essay, Michael Ignatieff has catalogued various kinds of American exceptionalism, in the process separating out at least three different faces of American engagement with the world: first, what he calls America’s human-rights narcissism, particularly in its embrace of the First Amendment and its nonembrace of certain rights — such as economic, social, and cultural rights — that are widely accepted throughout the rest of the world….

While this trichotomy is intriguing, I find it both under- and overinclusive. It lumps together certain distinct forms of exceptionalism and misses others. I prefer to distinguish among four somewhat different faces of American exceptionalism, which I call, in order of ascending opprobrium: distinctive rights, different labels, the “flying buttress” mentality, and double standards….

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.

[Footnote: 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.]

Now Part III.C doesn’t talk explicitly about “hate speech” restrictions, but, as I note, Prof. Koh makes clear that such restrictions should indeed be governed by the Part III.C analysis. And here are some excerpts from that analysis:

C. Addressing Exceptionalism Through Transnational Legal Process

… [T]he 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.

Let me illustrate my approach with respect to three examples from the September 11 context: first, America and the global [criminal] justice system…. [T]ransnational legal process could be used to erode the force of the novel U.S. tactic of unsigning the Rome Treaty [an unsigning that expressed the U.S. refusal to participate in the International Criminal Court -EV]. Under international law, it is unclear what the precise legal force of “unsigning” a previously signed treaty should be…. In 1994, for example, the United States attempted to modify its acceptance of the compulsory jurisdiction of the International Court of Justice to avoid a suit by Nicaragua, but the court itself eventually rejected that attempt as legally ineffective and proceeded to judgment against the United States. [FN86]

Rather than taking America’s unsignature at face value, a transnational legal process approach would recognize that the unsigning actually marks the beginning, not the end, of the United States’s relationship with an ongoing International Criminal Court. Henceforth, every act of American cooperation with the court will constitute a de facto repudiation of the categorical, but theoretical, act of unsignature. Thus, in a well-chosen case, a state party to the court could request that the United States provide evidence to support an ICC prosecution–as was done, for example, when the United States made classified evidence available to the International Criminal Tribunal for the former Yugoslavia (ICTY) to support the indictment of Slobodan Milosevic. Alternatively, another State could seek to extradite to the ICC a suspect located on U.S. soil. If the United States were to cooperate — as it well might in a case that served U.S. interests — the incident could reduce American exceptionalism, undermine the force of the May 2002 unsigning, and help shift the United States toward a new, more pragmatic long-term policy of cooperating with the court on a case-by-case basis….

To address America’s judicial exceptionalism, we can apply methods of reducing judicial dissonance, as described in Gerry Neuman’s article for this Symposium. But more fundamentally, we must recognize that two distinct approaches have emerged within our own Supreme Court’s jurisprudence toward America’s role in the world. The first is a “nationalist jurisprudence,” exemplified by opinions of Justices Scalia and Thomas, which is characterized by commitments to territoriality, national politics, deference to executive power, and resistance to comity or international law as meaningful constraints on national prerogative. The second and more venerable strand of “transnationalist jurisprudence” began with John Jay and John Marshall, was carried forward by Justice Gray in the The Paquete Habana case, and was articulated in the Warren and Burger Courts by Justices Douglas and White and in the numerous opinions of Justice Blackmun. The transnationalist banner is now being carried forward by Justices Stephen Breyer and Ruth Bader Ginsburg. Unlike the nationalist jurisprudence, which for guidance looks backward to territory and sideways toward executive power, transnational jurisprudence looks forward toward political and economic interdependence and outward toward rules of international law and comity as necessary means to coordinate international system interests and to promote the development of a well-functioning international judicial system.