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Now There's a Law That's Sure To Reduce Ethnic and Religious Tensions:

BBC reports:An Arab organisation [the Arab European League] is to be put on trial in the Netherlands over its publication of a cartoon deemed offensive to Jews, prosecutors say....

Dutch prosecutors said the AEL cartoon was "discriminatory" and "offensive to Jews as a group ... because it offends Jews on the basis of their race and/or religion".

The cartoon shows two men standing near a pile of bones at "Auswitch" (sic). One says "I don't think they're Jews".

The other replies: "We have to get to the six million somehow."

A spokeswoman for the prosecuting authority said the group could be fined up to 4,700 euros (£4,100), though in theory a prison sentence was also possible....

Naturally, the AEL is complaining about how this is supposedly inconsistent with the Dutch prosecutors' decision not to prosecute Geert Wilders for making the movie Fitna, which initially included the Mohammed cartoons. And the complaint seems plausible: Though one could distinguish Holocaust denial cartoons from the Mohammed cartoons on the theory that the former convey false historical statements of fact and the latter convey moral judgments or evaluative opinions, that doesn't seem to be a distinction that the quoted law draws, or that most general "hate speech" laws draw.

But beyond this, even if subtle distinctions can be drawn, at least a nation like the U.S. can respond to those who demand censorship of the Mohammed cartoons with a simple principle: We protect religiously and racially offensive ideas and images because that's what our constitutional law demands, and Jews, Christians, and Muslims all have to deal with that. But once one starts to draw subtle distinctions about which racially and religiously offensive ideas and images are sufficiently "hate speech" or sufficiently "offensive to ... a group" and "discriminatory," one sows more racial and religious discord than one avoids: Groups either fall into censorship envy, or resent the legal system and other groups more for the freedom that those others are seen as possessing.

It seems to me quite clear that many ideas can be quite harmful. That includes many racially or religiously bigoted ideas, but also advocacy of Communist revolution, most other advocacy of violence, historical conspiracy theories, and a wide range of other ideas. The particular harm caused by each such statement can be hard to identify. But much harmful behavior, such as the 9/11 attacks, race riots, and many other crimes would not have taken place without speech that made such behavior seem permissible and even laudable to the criminals. Some crimes, such as crimes of rage or sexual jealousy or greed might happen largely independently of ideological advocacy, and likely happened even before language evolved; but ideological crimes have ideological advocacy as an important cause.

I support protection for such ideas, though, because it seems to me that trying to suppress them through the force of law on balance tends to be more harmful than helpful. That's partly because the government is likely to abuse such suppressive powers, by suppressing the valuable speech as well as the harmful. But beyond that, attempts at such suppression -- which will rarely be particularly effective in any event, especially given modern technology -- are likely to arouse many of the same hostilities that the suppression is aimed at abating. This sort of prosecution strikes me as an excellent example of that phenomenon.

Thanks to First Amendment Law Prof Blog for the pointer.

KenB (mail):
I strongly agree that American free-speech principles are preferable. I strongly agree that such prosecutions are likely to exacerbate intergroup tensions. I must still confess schadenfreude from seeing those who so strongly support restricting speech they deem offensive being held to account for offending others.
9.8.2009 12:39pm
Harry Eagar (mail):
Amen
9.8.2009 12:58pm
Laura(southernxyl) (mail) (www):
I think we have to remember that countries in Europe that have laws against Holocaust denial are having to deal with their histories, which are different from ours. Jews in the Netherlands were deported to concentration camps. Other countries in Europe actually housed those camps. It's easy for us to talk about free speech - we don't have that to deal with and they do. So I'm inclined here to say that what works for us may not work for other countries.

Same with France not allowing Muslim schoolgirls to wear the hijab, whereas in this country we don't allow public schools to ban them. We're not France, we don't have France's demographics and cultural clashes (not that we don't have problems of our own) and I don't think we should compare their ways of handling these things to ours.
9.8.2009 1:08pm
einhverfr (mail) (www):
Excellent post. Pesonally, if the Jylands-Posten thing had happened here, I don't think it would have caused the international riots that occurred. One big element of frustration of Muslims in Denmark was the sense that the law protects everybody but them. One gets censorship envy and this creates a legitimate frustration (though not sufficiently legitimate to justify the inciting of riots which followed).

In my opinion, these problems would not have happened if free speech was protected in the EU with neutral and robust laws, rather than relegating the right to something roughly equivalent to the right to bear arms listed in the English Bill of Rights (a weak and discriminatory right in that it was subject to arbitrary regulation and only applicable to Protestants).

Weak and discriminatory reservations of rights are no reservations of rights at all.
9.8.2009 1:17pm
einhverfr (mail) (www):
(I note the nearly parallel wording between the European Convention on Human Rights regarding Free Speech and the Right to Bear Arms in the English Bill of Rights. The major difference is that the ECHR doesn't include discrimination in the treaty, but this is frequently an element of how it is put in practice. This in itself is not very encouraging.)
9.8.2009 1:28pm
ChrisTS (mail):
Laura:

I have an article coming out soon (I hope; the editor of the volume has been ill) arguing much the same. And it is not simply a matter of historical events, but also of the history of ideas. The French, for example, have a very different conception of citizenship and of the political community than we do.
9.8.2009 1:32pm
ChrisTS (mail):
On the other hand:

I think einhverfr is correct: the Muslim community in the Netherlands canot help but see a difference in the apllication of the law. Perhaps, had the government been just a tad less quick to indict the contrast would not have seemed so great.
9.8.2009 1:35pm
David M. Nieporent (www):
I have an article coming out soon (I hope; the editor of the volume has been ill) arguing much the same. And it is not simply a matter of historical events, but also of the history of ideas. The French, for example, have a very different conception of citizenship and of the political community than we do.
Yes, but our conception is that these rights are universal and unalienable, not contingent. So, well, the French are wrong.
9.8.2009 1:37pm
martinned (mail) (www):
Being Dutch, I usually try to defend my country abroad. But for this one, I've got nothing. I don't agree with this prosecution at all.

After years of political pressure and judicial reluctance on the issue, the rule is now that saying something offensive about a religion is OK (eg. those Mohammed cartoons), but saying something offensive about a group of people is not. The difficulty obviously arises when a group of people is defined by their shared religion, as with the Jews.

Incidentally, the first article of the Dutch constitution, phrased in more absolute terms than any of the other human rights defined, says:


Article 1
All persons in the Netherlands shall be treated equally in equal circumstances. Discrimination on the grounds of religion, belief, political opinion, race or sex or on any other grounds whatsoever shall not be permitted.

(Not that that is directly relevant to this case, but still.)
Now that I'm at it, here's the free speech article:

Article 7
1. No one shall require prior permission to publish thoughts or opinions through the press, without prejudice to the responsibility of every person under the law.
2. Rules concerning radio and television shall be laid down by Act ofParliament. There shall be no prior supervision of the content of a radio or television broadcast.
3. No one shall be required to submit thoughts or opinions for prior approval in order to disseminate them by means other than those mentioned in the preceding paragraphs, without prejudice to the responsibility of every person under the law. The holding of performances open to persons younger than sixteen years of age may be regulated by Act of Parliament in order to protect good morals.
4. The preceding paragraphs do not apply to commercial advertising.

For actual litigation, the European Convention on Human Rights is more relevant, since art. 120 of the Constitution forbids judicial review of the constitutionality of Acts of Parliament (such as the Penal Code article in question here). Because treaties have direct effect (art. 94 Constitution), the result is that this prosecution can be thrown out if it violates the ECHR, but not if it is unconstitutional.

@einhverfr: Hang on, what is that about the Right to Bear Arms in the European Convention on Human Rights?
9.8.2009 1:38pm
martinned (mail) (www):

Yes, but our conception is that these rights are universal and unalienable, not contingent. So, well, the French are wrong.

Really? And do our friends in GITMO know this?
9.8.2009 1:39pm
Suzy (mail):
Prof. Volokh's analysis of these issues is the reason I was drawn to this blog and the reason I keep reading. And not just because I agree with him, but because his explanation exposes the variety of problems raised by such attempts to restrict speech, and shows just how significant and central this issue is to any political and legal thinking.
9.8.2009 1:40pm
Laura(southernxyl) (mail) (www):

ChrisTS (mail):
Laura:

I have an article coming out soon (I hope; the editor of the volume has been ill) arguing much the same. And it is not simply a matter of historical events, but also of the history of ideas. The French, for example, have a very different conception of citizenship and of the political community than we do.


Yes. And our government is religion-neutral, whereas if my understanding is correct, the French government is secular. These might sound like the same thing but they are not. A secular government may include religious freedom in its tenets but it doesn't have to.
9.8.2009 1:48pm
Jon Roland (mail) (www):
Yet another failure to understand the wisdom of the American Founders in adopting the Constitution and its Bill of Rights, and to appreciate the limits on the competence of government and law to constrain social behavior. It is an argument I have often had with earnest but clueless people, especially in Europe (but also all too often increasingly in the U.S.). They insist "We have to do something to prevent hatred from spreading and inciting violence!" To which I reply, "You have to let good people know it is up to them to stand up to hate and that they can't depend on the government to do that for them." Government can play a role in education, telling stories to children about heroes who stand up against evil. But the rest has to be up to them.
9.8.2009 1:48pm
martinned (mail) (www):

Yes. And our government is religion-neutral, whereas if my understanding is correct, the French government is secular. These might sound like the same thing but they are not. A secular government may include religious freedom in its tenets but it doesn't have to.

Laïceté
9.8.2009 1:52pm
martinned (mail) (www):
@Jon Roland: And why does that logic not apply to defamation?
9.8.2009 1:53pm
Dilan Esper (mail) (www):
Professor Volokh is absolutely, positively, 100 percent right on this.
9.8.2009 1:53pm
SeaDrive:

It's easy for us to talk about free speech - we don't have that to deal with and they do.


We have slavery. We have a history of civil rights abuse. We have the Civil War.

And we have issues over display of the Stars And Bars. We have places where perhaps you don't want to play Dixie, or the Battle Hymn of the Republic.

I think we have enough to illustrate how the American system handles the problem.
9.8.2009 1:55pm
David M. Nieporent (www):
Really? And do our friends in GITMO know this?
I think everyone knows the French are wrong.
9.8.2009 1:57pm
Laura(southernxyl) (mail) (www):
Martinned, thanks.
9.8.2009 1:57pm
martinned (mail) (www):
@David M. Nieporent: No question there. But how universal are human rights if American conservatives can't seem to get their head around the concept of the consitution following the flag?
9.8.2009 2:01pm
Jon Roland (mail) (www):
martinned:

@Jon Roland: And why does that logic not apply to defamation?

It does, as a matter for public action. Defamation, like libel or slander, has to be left to private civil action and to a jury, to whom the plaintiff has to prove by a preponderance of the evidence that injury occurred on which a monetary value can be assessed. The only exception would be fraud or extortion which seeks some gain, but that involves action that goes beyond speech, and is a matter for the states, not the central government.
9.8.2009 2:07pm
Melancton Smith:

I think everyone knows the French are wrong.


I do like their fries and toast though! Oh and bread! And Mustard (wait, is French's Mustard from France or some guy named French?)
9.8.2009 2:13pm
martinned (mail) (www):
@Jon Roland: Ignoring, for the moment, that there is also such a thing as criminal libel, I'd argue that your distinction between criminal law and civil law is artificial. They both involve state action. Because civil courts can't put me in jail, they tend to have different procedures and different standards of proof, but their rulings are state actions all the same. If this case (i.e. the one discussed in the OP) were handled as a civil suit (intentional infliction of emotional distress, etc.), it would still be just as wrong.

P.S. Just for the record: this case couldn't have been brought as a civil suit, since there is no damage, at least none that a civil court can order compensation for. No emotional distress suits in Dutch courts...
9.8.2009 2:15pm
Calderon:
Laura said:


Same with France not allowing Muslim schoolgirls to wear the hijab, whereas in this country we don't allow public schools to ban them. We're not France, we don't have France's demographics and cultural clashes (not that we don't have problems of our own) and I don't think we should compare their ways of handling these things to ours.


But if we applied that rule uniformly, liberal bloggers wouldn't be able to write articles comparing the US health care system to that of random countries in Europe, and thousands of blog pages would just have tumble weeds rolling by ...

Slightly more seriously, one can look at the US's own history and come up with a number of topics on which to restrict speech that would have as much justification as what France is doing with the Holocaust. Most of those topics have already been named by other commenters, and include slavery of black people, discrimination against Catholics, discrimination against Eastern Europeans, discrimination against the Chinese, discrimination against Jews (particularly in not accepting more emigrants from Germany in the 1930s), etc. etc. Do you think speech on all these topics (and many more) should be restricted because of the US's history?

In any case, whenever people say to look to history on free speech issues, my favorite examples are the laws passed during World War I and the Supreme Court decisions upholding them under the "bad tendency" test and the Sedition Act of 1798. US history shows that when we give the power to governments to suppress speech based on political beliefs, they abuse it. While the US and France have different history, EV's post indicates that the French government acts the same as historical US governments when given power over political speech.
9.8.2009 2:18pm
einhverfr (mail) (www):
Martinned:

Hang on, what is that about the Right to Bear Arms in the European Convention on Human Rights?


Read my post again. I am talking about similarity between the English Bill of Rights and the ECHR.

From the English Bill of Rights:

That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law;


This has never been repealed and is still part of Engish Constitutional Law. However, "as allowed by law" makes it fatally weak.

From the ECHR:

Article 10
1. Everyone has the right to freedom of expression. this right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.


Both essentially allow arbitrary laws to be passed restricting the freedom. I am not sure that the ECHR provides any more protection for free speech than English Common Law does (i.e. that ideas which promote "bad tendencies" are outside such protection).

Nothing in the ECHR protects the speech at issue in Yates v. United States (literature in favor of a Communist revolution at some point in the indefinite future) or Brandenburg v. Ohio (spoken at a KKK rally "Kill the niggers... We intend to do our part" thus advocating racial violence in the indefinite future).

Even seditious libel laws would seem outside the protections of the ECHR. I.e. the ECHR seems to be aimed solely at discussions which are sufficiently narrow as to make the rule a purely majoritarian one. This leaves Muslims and other groups feeling like they are unfairly singled out and they are.

If the French cartoon indicating sympathy with the 9/11 attackers had been printed in the US, no law could have been used to punish the author for writing it. In France, on the other hand, it becomes a subject of a 4500 EUR fine. Consequently even abstract moral ideas, such as whether the 9/11 attacks could be seen in a positive light rest squarely outside those protections.

My point then is that "free speech" in the ECHR is as strong an the "right to keep and bear arms" in the English bill of rights is. Both are fatally weak.
9.8.2009 2:23pm
martinned (mail) (www):
@Calderon: You do realise this post is about the Netherlands?

Re: Holocaust denial, I'd argue that there is nothing in US history that reflects a Holocaust-level of evil, except maybe slavery. I support Holocaust denial laws in Germany (and maybe Austria), but not elsewhere, and only for so long as the Holocaust is still in living memory. Given that slavery is very much not in living memory, and that even when it was no one was interested in denying that it happened, I'd say there is no equivalent in the US to Holocaust denial in Germany.
9.8.2009 2:24pm
Jon Roland (mail) (www):
martinned:

@David M. Nieporent: No question there. But how universal are human rights if American conservatives can't seem to get their head around the concept of the consitution following the flag?

There are different kinds of rights, some stemming from nature, some from the social compact, some from the state (society in exclusive dominion over a territory), and some from the written constitution of government (voting, holding office).

Confusion arises from the principle that while rights are universal, their exercise depends on the prevalence of a state of society, which is suspended in a state of war. The question then becomes, where is the state of society prevailing, and where is it not? That is not always an easy question to answer, and in some situations of civil conflict the state of society may be tenuous. We can see that in some of our inner cities on a Saturday night, where the gangs contend with the police for rule of the streets.

Gitmo is in a state of society because one side of a conflict is in control of the other there, but that is an extension of a conflict environment in which the state of society does not prevail (and some would argue, has never really prevailed at any time in history, except for short interludes).

For the state of society to prevail there must be a certain minimum level of civic virtue, lacking which the historical solution has been conflict that reduces the population to a small remnant that can then rebuild civic society.
9.8.2009 2:27pm
martinned (mail) (www):
@einhverfr: OK, that's true, although I must say it helps having the exceptions summed up in the text, as opposed to having the courts making up categories of exception as they see fit.

Also, I assure you the ECtHR are quite strict about free speech. They would have been OK with banning the speech at issue in Brandenburg, but I highly doubt whether they would have let anyone ban the Yates speech.

(There is a bit of a problem in that the ECtHR, being a supranational court, often tends to give the state the benefit of the doubt, by allowing them "a margin of appreciation". That doesn't necessarily mean that the Court is OK with what the state did, it just means that it is a close enough call that they are going to let "federalism" prevail.)
9.8.2009 2:28pm
martinned (mail) (www):
@Jon Roland: Sounds nice. You should think about writing a Treatise on Government.

But why shouldn't the constitution apply in full force in those places where the US are the de facto sovereign power?
9.8.2009 2:30pm
einhverfr (mail) (www):
John Roland:

Yet another failure to understand the wisdom of the American Founders in adopting the Constitution and its Bill of Rights, and to appreciate the limits on the competence of government and law to constrain social behavior.


Um... All governments derive their just powers from the consent of the governed. I may believe that the European solution is sub-optimal and the cause of needless problems but that is their responsibility. Suggesting they should just follow us is cultural arrogance at its worst.

Also it is worth noting that large portions of Europe do not have long traditions of freedom of the speech and of the press that we have in this country. In the run-up to WWI, the German government expressed the view that all civilized countries controlled their nations' presses.

In the end everyone has a right to make mistakes. The Europeans get to live with the results. I can offer my thoughts, but I won't condemn them for it. They will have to live with the results.
9.8.2009 2:31pm
martinned (mail) (www):
@einhverfr: Hang on, does that mean we can't criticise you guys for torturing? That doesn't seem right. (Ius Cogens, CAT, etc.)
9.8.2009 2:36pm
ChrisTS (mail):
Laura:
Yes. And our government is religion-neutral, whereas if my understanding is correct, the French government is secular. These might sound like the same thing but they are not. A secular government may include religious freedom in its tenets but it doesn't have to.

Our 'neutrality' is an effort to balance separation of church and state with an unusual [for a western democracy] respect for religious belief.

The French take a more direct approach: the state is secular; personal religious belief is entirely personal and not a feature of one's life as a citizen. Further, the state promotes individual autonomy, it resists 'communautarisme' {social factionalism}, and its schools educate for citizenship.

By the way, the title of my piece is Conspicuous Religious Symbols and Laïcité.
9.8.2009 2:38pm
Jon Roland (mail) (www):
martinned:

@Jon Roland: Ignoring, for the moment, that there is also such a thing as criminal libel,

Which I regard as unconstitutional, unless there is an element of fraud or extortion.

I'd argue that your distinction between criminal law and civil law is artificial. They both involve state action.

There is an important distinction between prosecution by a state actor and prosecution by a private party.

If this case were handled as a civil suit (intentional infliction of emotional distress, etc.), it would still be just as wrong.

P.S. Just for the record: this case couldn't have been brought as a civil suit, since there is no damage, at least none that a civil court can order compensation for. No emotional distress suits in Dutch courts...

My position is that emotional distress is not a valid claim unless there is an injury to which some value can be assigned, not necessarily monetary, but probably monetary. In other words, the emotional distress has to be followed by rational behavior that disadvantages the victim, such as avoiding going to work or making a living. It has to be rational in the sense that it is a reasonable response to a credible threat.
9.8.2009 2:41pm
einhverfr (mail) (www):
Martinned:

OK, that's true, although I must say it helps having the exceptions summed up in the text, as opposed to having the courts making up categories of exception as they see fit.


The problem is that exceptions expand. Some exceptions should be included, like the libel exception. But the others seem unreasonably broad.

For example, what is the difference between someone publishing Communist literature teaching the moral necessity of revolution at some point in the indefinite future, and a cartoon which expresses sympathy with the 9/11 attackers? It seems to me that teaching the necessity of insurrection (violent if necessary) and expressing sympathy with terrorists is fairly equivalent, yet I am aware of at least one case where a French cartoonist's fine was upheld when his piece showed sympathy with the 9/11 attackers.

The cartoon depicted the WTC burning and a caption reading "We have all dreamt it. Hamas did it."
9.8.2009 2:42pm
einhverfr (mail) (www):
Martinned:

Hang on, does that mean we can't criticise you guys for torturing? That doesn't seem right. (Ius Cogens, CAT, etc.)


No, it doesn't mean that.

If you feel our torture laws aren't being followed that is one thing. If you feel they aren't strong enough, that is another. Criticize away.

But on the latter issue, at some point, since CAT isn't self-executing, some deference needs to be given to our legislative process.
9.8.2009 2:46pm
martinned (mail) (www):

My position is that emotional distress is not a valid claim unless there is an injury to which some value can be assigned, not necessarily monetary, but probably monetary. In other words, the emotional distress has to be followed by rational behavior that disadvantages the victim, such as avoiding going to work or making a living. It has to be rational in the sense that it is a reasonable response to a credible threat.

That is the position in Dutch civil law. You can only sue for "financial damage", meaning reduced value of any asset, reduced income, and such like. Officially, there are only three exceptions: intentional damage, damage to the body or to one's reputation (= assault, etc. and defamation cases), and wrongful death cases. Unfortunately, in recent years/decades, the category of "shock damage", where the emotional distress rises to the point of being essentially similar to physiological damage, has been extended more and more. Still, not having punitive damages and general emotional distress suits, not to mention much lower damages awards across the board and no jury, means that ambulance chasing isn't so rewarding here. (Also: no cure no pay is forbidden by the bar association....)
9.8.2009 2:50pm
martinned (mail) (www):

But on the latter issue, at some point, since CAT isn't self-executing, some deference needs to be given to our legislative process.

Well, that's another story. CAT is most certainly self-executing, in that it is intended to and capable of creating enforceable rights for individuals. The only reason why it isn't self-executing in the US is that the US stipulated that when they signed or ratified. (I don't remember which.) I don't think that's such a great idea, and I'd like to reserve the right to say so.

The WTC cartoon you mention should normally be protected speech. If asked the ECtHR would presumably say so. If the case doesn't make it that far up the food chain, problematic things sometimes happen.
9.8.2009 2:55pm
Jon Roland (mail) (www):
martinned:

@Jon Roland: Sounds nice. You should think about writing a Treatise on Government.

I am, although these points are well-covered by existing treatises, many of which I have online at constitution.org


But why shouldn't the constitution apply in full force in those places where the US are the de facto sovereign power?

It does, in that it constrains U.S. officials everywhere, but the Constitution also incorporates the law of nations and its rules against piracy and felony on extranational territory as two of the delegated penal powers, which allows for reduced standards of due process for pirates, and the terrorists are pirates by constitutional standards. It is okay to summarily kill pirates wherever one finds them, outside U.S. territory, and if instead of killing them, one captures and interrogates them, that is not a violation, provided one first tries and sentences them to death, and allows the persons then legally dead to opt for execution of their sentences if they can't endure the treatment they receive during a reprieve for interrogation. The method of execution must, of course, be humane, not "cruel or unusual".
9.8.2009 3:03pm
martinned (mail) (www):
@Jon Roland: My apologies for even bringing it up. I was just rather surprised to hear another commenter explain how "universal" and "unalienable" these rights are in the American conception. Clearly the rights of GITMO detainees is not something we are going to agree on, at least not in the next few billion years or so.
9.8.2009 3:08pm
einhverfr (mail) (www):
Martinned
Take a look at this regarding the WTC cartoon I mentioned.... I think you are factually wrong as to what the legal judgement was.
9.8.2009 3:10pm
Jon Roland (mail) (www):
einhverfr:

In the end everyone has a right to make mistakes. ... I can offer my thoughts, but I won't condemn them for it. They will have to live with the results.

I make harsh criticisms, not just offers of my thoughts. We have a long history of having to clean up their mistakes, often with great cost in lives and wealth, and it's long past time for them to start getting it right. There is no "right to make mistakes" when other people down the line have to pay for them.
9.8.2009 3:11pm
Jon Roland (mail) (www):
martinned:

@Jon Roland: My apologies for even bringing it up. I was just rather surprised to hear another commenter explain how "universal" and "unalienable" these rights are in the American conception. Clearly the rights of GITMO detainees is not something we are going to agree on, at least not in the next few billion years or so.

We may not disagree as much as you think in practice, but the theory is more subtle than perhaps you appreciate. Study the law of nations concerning piracy.

The basic problem with Gitmo is the irregular way we acquired the prisoners, relying on local Afghans to turn in people for a bounty. They should have been acquired strictly by U.S. personnel on the battlefield and with some proper investigation.
9.8.2009 3:25pm
martinned (mail) (www):

We have a long history of having to clean up their mistakes, often with great cost in lives and wealth, and it's long past time for them to start getting it right. There is no "right to make mistakes" when other people down the line have to pay for them.

While this is certainly true, I'd like to point out that we've been getting it right for more than 50 years now. When is the US going to join the Community project?
9.8.2009 3:26pm
martinned (mail) (www):

They should have been acquired strictly by U.S. personnel on the battlefield and with some proper investigation.

Cool! We agree! (Well, almost. Do we agree on what the "battlefield" is?)
9.8.2009 3:27pm
Jon Roland (mail) (www):
martinned:

When is the US going to join the Community project?

We are the project. The question is when are you going to join us.

I realize that comes across as American arrogance, but we've earned the right to the senior position in these matters.
9.8.2009 3:40pm
martinned (mail) (www):
@einhverfr: For some reason, the case is not available in English. (Normally, the English version of all cases is available on BAILII.) Judging from the French version, he was convicted for incitement to commit acts of terrorism. That sounds possible; in Europe incitement is defined somewhat more broadly than in the US. In this case, there is a Council of Europe Treaty, just like the ECHR, which explicitly makes Incitement to commit terrorism a crime:


Article 5 - Provocation publique à commettre une infraction terroriste

« Aux fins de la présente Convention, on entend par « provocation publique à commettre une infraction terroriste » la diffusion ou toute autre forme de mise à disposition du public d’un message, avec l’intention d’inciter à la commission d’une infraction terroriste, lorsqu’un tel comportement, qu’il préconise directement ou non la commission d’infractions terroristes, crée un danger qu’une ou plusieurs de ces infractions puissent être commises.

Chaque partie adopte les mesures qui s’avèrent nécessaires pour ériger en infraction pénale, conformément à son droit interne, la provocation publique à commettre une infraction terroriste telle que définie au paragraphe 1, lorsqu’elle est commise illégalement et intentionnellement. »


Article 8 – Indifférence du résultat

« Pour qu’un acte constitue une infraction au sens des articles 5 à 7 de la présente Convention, il n’est pas nécessaire que l’infraction terroriste soit effectivement commise. »

The Court concludes:

36. La Cour considère que la condamnation litigieuse s’analyse en une « ingérence » dans l’exercice par l’intéressé de sa liberté d’expression. Pareille immixtion enfreint l’article 10, sauf si elle est « prévue par la loi », dirigée vers un ou des buts légitimes au regard du paragraphe 2 et « nécessaire » dans une société démocratique pour les atteindre (Fressoz et Roire c. France [GC], no 29183/95, § 41, CEDH 1999-I). Il n’est pas davantage contesté que l’ingérence était prévue par la loi - l’article 24 de la loi du 29 juillet 1881 - et poursuivait plusieurs buts légitimes, eu égard au caractère sensible de la lutte contre le terrorisme ainsi qu’à la nécessité pour les autorités d’exercer leur vigilance face à des actes susceptibles d’accroître la violence, à savoir le maintien de la sûreté publique ainsi que la défense de l’ordre et la prévention du crime, au sens de l’article 10 § 2.

37. Il reste à déterminer si cette ingérence était « nécessaire, dans une société démocratique », pour atteindre pareil but. La Cour se réfère aux principes fondamentaux qui se dégagent de sa jurisprudence relative à l’article 10 (voir, entre autres, Ceylan c. Turquie ([GC], no 23556/94, § 32, CEDH 1999-IV). Elle rappelle que ces principes s’appliquent aux mesures prises par les autorités nationales dans le cadre de la lutte contre le terrorisme. Elle doit, en tenant compte des circonstances de chaque affaire et de la marge d’appréciation dont dispose l’Etat, rechercher si un juste équilibre a été respecté entre le droit fondamental d’un individu à la liberté d’expression et le droit légitime d’une société démocratique de se protéger contre les agissements d’organisations terroristes (Zana c. Turquie, arrêt du 25 novembre 1997, Recueil 1997-VII, § 55). En particulier, et comme le montrent les travaux du Conseil de l’Europe en la matière (paragraphes 20 et 21 ci-dessus), la principale difficulté réside dans la possibilité de punir l’apologie du terrorisme sans entraver les libertés fondamentales telle que la liberté d’expression.

38. La Cour portera une attention particulière aux termes employés pour illustrer le dessin et au contexte dans lequel ils ont été publiés tout en tenant compte des circonstances liées aux difficultés attachées à la lutte contre le terrorisme (Karatas c. Turquie, no 23168/94, § 51, Recueil 1999 IV), y compris à l’égard de la situation régnant au pays basque qu’elle a déjà eu à connaître dans l’affaire Association Ekin c. France (no 39288/98, 17 juillet 2001) et qui est pris en compte en l’espèce pour déterminer le montant de l’amende infligée au requérant (paragraphe 12 ci-dessus).

39. Elle le fera également à la lumière du langage inhérent à la caricature, qui peut être une forme d’expression artistique, par définition provocatrice (Vereinigung Bildender Künstler c. Autriche, no 68354/01, § 33, 25 janvier 2007).

40. Le requérant ayant été condamné pour avoir glorifié, par complicité, un acte de terrorisme par le canal d’un journal hebdomadaire dont le directeur de publication a été condamné pour apologie, il faut enfin examiner l’ingérence en cause en ayant égard au rôle essentiel que joue la presse dans le bon fonctionnement d’une démocratie politique (voir, parmi d’autres, les arrêts Lingens c. Autriche du 8 juillet 1986, série A no 103, p. 26, § 41, et Fressoz et Roire, précité, § 45). Si la presse ne doit pas franchir les bornes fixées en vue, notamment, de la protection des intérêts vitaux de l’Etat, telles la sécurité nationale ou l’intégrité territoriale, contre la menace de violence ou du terrorisme, ou en vue de la défense de l’ordre ou de la prévention du crime, il lui incombe néanmoins de communiquer des informations et des idées sur des questions politiques, y compris sur celles qui divisent l’opinion. A sa fonction qui consiste à en diffuser s’ajoute le droit, pour le public, d’en recevoir (Sürek et Özdemir c. Turquie, nos 23927/94 et 24277/94, § 58, 8 juillet 1999, Yalcin Küçük c. Turquie, no 28493/95, § 38, 5 décembre 2002 ; Halis Doğan c. Turquie, no 75946/01, § 33, 7 février 2006). En raison de cette fonction de la presse, la liberté journalistique implique aussi le recours possible à une certaine dose d’exagération, voire de provocation (Gaweda c. Pologne, no 26229/95, § 34, CEDH 2002-II).

41. La Cour relève d’emblée que les actes tragiques du 11 septembre 2001 qui sont à l’origine de l’expression litigieuse ont entraîné un chaos mondial et que les questions abordées à cette occasion, y compris l’interprétation qu’en fait le requérant, relèvent du débat d’intérêt général.

42. La Cour note que le dessin montrant la destruction des tours accompagné de la légende « nous en avions tous rêvé, le Hamas l’a fait », pastichant un slogan publicitaire d’une grande marque, a été considéré par les juridictions nationales comme constitutif de complicité d’apologie du terrorisme. Selon les autorités, même non suivie d’effet, la publication litigieuse revendique l’efficacité de l’acte terroriste en idéalisant les attentats perpétrés le 11 septembre. Ainsi, la cour d’appel a jugé « qu’en faisant une allusion directe aux attaques massives dont Manhattan a été le théâtre, en attribuant ces événements à une organisation terroriste notoire, et en idéalisant ce funeste projet par l’utilisation du verbe rêver, donnant une valorisation non équivoque à un acte de mort, le dessinateur justifie le recours au terrorisme, adhérant par l’emploi de la première personne du pluriel (« nous » à ce moyen) de destruction, présenté comme l’aboutissement d’un rêve et en encourageant indirectement en définitive le lecteur potentiel à apprécier de façon positive la réussite d’un fait criminel ». Le requérant reproche à la cour d’appel d’avoir nié sa véritable intention, qui relevait de l’expression politique et militante, celle d’afficher son antiaméricanisme à travers une image satirique et d’illustrer le déclin de l’impérialisme américain. Selon lui, les éléments constitutifs de l’apologie du terrorisme n’étaient pas réunis en l’espèce pour justifier une restriction à la liberté d’expression.

43. La Cour ne partage pas l’analyse du requérant. Elle estime au contraire que le critère mis en œuvre par la cour d’appel de Pau pour juger du caractère apologétique du message délivré par le requérant est compatible avec l’article 10 de la Convention. Certes, l’image des quatre immeubles de grande hauteur qui s’effondrent dans un nuage de poussière peut en soi démontrer l’intention de l’auteur. Mais vue ensemble avec le texte qui l’accompagne, l’œuvre ne critique pas l’impérialisme américain, mais soutient et glorifie sa destruction par la violence. A cet égard, la Cour se base sur la légende accompagnant le dessin et constate que le requérant exprime son appui et sa solidarité morale avec les auteurs présumés par lui de l’attentat du 11 septembre 2001. De par les termes employés, le requérant juge favorablement la violence perpétrée à l’encontre des milliers de civils et porte atteinte à la dignité des victimes. La Cour approuve l’avis de la cour d’appel selon laquelle « les intentions du requérant étaient étrangères à la poursuite » ; celles-ci n’ont d’ailleurs été exprimées que postérieurement et n’étaient pas de nature, au vu du contexte, à effacer l’appréciation positive des effets d’un acte criminel. Elle relève à cet égard que la provocation n’a pas à être nécessairement suivie d’effet pour constituer une infraction (voir, paragraphe 14 ci-dessus ; voir également le paragraphe 19, et particulièrement l’article 8 de la Convention pour la prévention du terrorisme).

44. Certes, cette provocation relevait de la satire dont la Cour a dit qu’il s’agissait d’une « forme d’expression artistique et de commentaire social [qui] par ses caractéristiques intrinsèques d’exagération et de distorsion de la réalité, (...) vise naturellement à provoquer et à susciter l’agitation (Vereinigung Bildender Künstler, précité, § 33). Elle a ajouté aussi que toute atteinte au droit d’un artiste de recourir à pareil mode d’expression doit être examinée avec une attention particulière (ibidem). Toutefois, il n’en reste pas moins que le créateur, dont l’œuvre relève de l’expression politique ou militante, n’échappe pas à toute possibilité de restriction au sens du paragraphe 2 de l’article 10 : quiconque se prévaut de sa liberté d’expression assume, selon les termes de ce paragraphe, des « devoirs et responsabilités».

45. A cet égard, si les juridictions internes n’ont pas pris en compte l’intention du requérant, elles ont en revanche, en vertu de l’article 10, examiné si le contexte de l’affaire et l’intérêt du public justifiaient l’éventuel recours à une dose de provocation ou d’exagération. Force est de constater à cet égard que la caricature a pris une ampleur particulière dans les circonstances de l’espèce, que le requérant ne pouvait ignorer. Le jour des attentats, soit le 11 septembre 2001, il déposa son dessin et celui-ci fut publié le 13 septembre, alors que le monde entier était sous le choc de la nouvelle, sans que des précautions de langage ne soient prises de sa part. Cette dimension temporelle devait passer, selon la Cour, pour de nature à accroître la responsabilité de l’intéressé dans son compte rendu - voire soutien - d’un événement tragique, qu’il soit pris sous son angle artistique ou journalistique. De plus, l’impact d’un tel message dans une région politiquement sensible n’est pas à négliger ; nonobstant son caractère limité du fait de sa publication dans l’hebdomadaire en question, la Cour constate cependant que celle-ci entraîna des réactions (paragraphe 10 ci-dessus), pouvant attiser la violence et démontrant son impact plausible sur l’ordre public dans la région.

46. La Cour parvient en conséquence à la conclusion que la « sanction » prononcée contre le requérant repose sur des motifs « pertinents et suffisants ».

47. La Cour note aussi que le requérant a été condamné au paiement d’une amende modérée. Or, la nature et la lourdeur des peines infligées sont aussi des éléments à prendre en considération lorsqu’il s’agit de mesurer la proportionnalité de l’ingérence.

Dans ces circonstances, et eu égard en particulier au contexte dans lequel la caricature litigieuse a été publiée, la Cour estime que la mesure prise contre le requérant n’était pas disproportionnée au but légitime poursuivi.

48. En conclusion, le juge national pouvait raisonnablement tenir l’ingérence dans l’exercice par le requérant de son droit à la liberté d’expression pour nécessaire dans une société démocratique au sens de l’article 10 de la Convention. Partant, il n’y a pas eu violation de cette disposition.

(Sorry for the lengthy quote, but this text does not seem to be linkable.
9.8.2009 3:42pm
martinned (mail) (www):

We are the project. The question is when are you going to join us.

I'm sorry, I should have explained better. By "Community project" I mean the European Community: "An ever closer union among the peoples of Europe". Sooner or later, that project is going to encompass all of Europe. Similar projects have already been set up elsewhere. So when are the US going to join in? Why not start by abolishing the border with Canada?
9.8.2009 3:44pm
Jon Roland (mail) (www):
martinned:

Do we agree on what the "battlefield" is?

In a failed state like Afghanistan was and largely still is, it's all battlefield, but only the part where our personnel dominate is "our" battlefield. Prisoners need to be acquired by reliable actors, and that doesn't include most native Afghans. Granted, most the Northern Alliance guys are somewhat reliable, and their "catches" were mostly bad guys, but trying to be politically correct and treat all Afghans alike doesn't really work. If they were all Massouds it would be different, but if they were they wouldn't have the problems we went in for in the first place. There is a reason why al Qaeda assassinated him at the outset of 9/11.
9.8.2009 3:49pm
einhverfr (mail) (www):
martinned:

But that makes my point. Incitement is defined so broadly that merely expressing sympathy with an act is outside the bounds of free speech protections.

Incitement would also seem to be at issue in Yates as much as in this case, perhaps moreso since in Yates, it is a direct incitement to believe that one MUST support such a revolution when it would occur-- it was aimed at future rather than past events, while in the Leroy case it was merely a reaction of guilty pleasure.
9.8.2009 3:54pm
Laura(southernxyl) (mail) (www):

Why not start by abolishing the border with Canada?


The Canadians might like to express an opinion about this. I don't think the idea would win universal approval.
9.8.2009 3:55pm
Leo Marvin (mail):
For the nth time, the OP shows a commitment to principle over partisan interests that distinguishes this site.
9.8.2009 3:55pm
martinned (mail) (www):
@einhverfr: Just to summarise and translate what the Court said:

The key question is whether this restriction was "necessary in a democratic society", since the other requirements (put in a law, legitimate purpose) were clearly met. (par. 36)

In determining what is necessary, the Court grants the states signatories a significant "margin of appreciation". Bearing that in mind, the question is whether a "just balance" has been struck.(par. 37)

The Court notes that the phrase used parodies a famous advertising slogan. (par. 42)

Viewed in its entirety the picture does not attack "American imperialism", but glorifies these acts of terrorism, as the French court had decided. (par. 43)

Satire should be viewed with particular care. However, the fact that something is satire does not mean the creator is not subject to the rules of the law. (par. 44)

Noting the day on which it was published (13 September 2001). (par. 45)

Noting that the plaintiff was ordered to pay only a modest fine. (par. 47)

The French ruling stands. (par. 48.)


I'd say that this is a unique ruling, driven to a large extent by the fact that this guy wrote what he did on 9/13, 2001. I don't think this precedent will be cited much outside the unique facts of the case.
9.8.2009 3:56pm
martinned (mail) (www):

The Canadians might like to express an opinion about this. I don't think the idea would win universal approval.

That depends. As the history of the Community shows, removing borders means compromising on any number of things. As long as the US are genuinely willing to compromise, why wouldn't the Canadians join in?
9.8.2009 3:57pm
Laura(southernxyl) (mail) (www):
Because we're bigger and more populated and they might reasonably fear getting subsumed?
9.8.2009 4:05pm
martinned (mail) (www):

n a failed state like Afghanistan was and largely still is, it's all battlefield

That's OK with me. It's just that there are plenty of people out there willing to claim that the whole world is the battlefield.
9.8.2009 4:20pm
Leo Marvin (mail):
martinned:

I support Holocaust denial laws in Germany (and maybe Austria), but not elsewhere, and only for so long as the Holocaust is still in living memory.

I'm curious why you support those laws "for so long as the Holocaust is still in living memory." The existence of Holocaust denial in those countries certainly adds grotesque insult to injury, and I'm sure some people are afraid it could add actual injury to injury. So I sympathize with what motivated the laws, especially at the time they were enacted. But if you believe sunlight is the best disinfectant (I do), don't the laws threaten to aggravate rather than help the problem? I'd repeal them today.
9.8.2009 4:21pm
Jon Roland (mail) (www):
martinned:

We are the project. The question is when are you going to join us.

I'm sorry, I should have explained better. By "Community project" I mean the European Community: "An ever closer union among the peoples of Europe". Sooner or later, that project is going to encompass all of Europe. Similar projects have already been set up elsewhere. So when are the US going to join in? Why not start by abolishing the border with Canada?

Perhaps I should explain the historical background for the European Communuity and its relation to the Atlantic Union movement, in which I was deeply involved. The original concept was to unite the leading industrial democratic nations by convening an "Atlantic Convention". That actually happened in 1966, but it didn't produce anything significant. The consensus was that the Europeans weren't ready and that they would need to go through a period of integration into a federal union before they would be. This is sometimes called the "Europe first" strategy.

It was always my position that when it came to uniting with the U.S., the only viable course was for them to apply for entry into the U.S. as states, because the global responsibilities of the U.S. don't allow for any interruption in the continuity of its government. The EU would be absorbed into the U.S., existing for a time as a second tier of membership in the U.S. until the integration issues could be worked out. The result would have the U.S. Constitution, although there might be some amendments.

Canada would come in as several provinces being admitted as states.

All this presupposes that all parties are willing. There would undoubtedly be much opposition on all sides to any kind of union. I'm not sure I would support it myself if I suspected any diminution of rights protections, especially the right to keep and bear arms.

Might just be Switzerland joining the U.S. as a state, based on rights protection.

But it is clear that all this will be a matter of centuries, unless we get invaded from outer space.
9.8.2009 4:21pm
martinned (mail) (www):

Because we're bigger and more populated and they might reasonably fear getting subsumed?

Sure. But OTOH, the US are much more divided. Whether that matters depends on the voting arrangements established.
9.8.2009 4:22pm
martinned (mail) (www):

I'm curious why you support those laws "for so long as the Holocaust is still in living memory."

I consider it part of Germany's penance that they don't get to say it never happened. That penance has to end sometime, and drawing the line at the point when there is no one around anymore who lived through WW II seems like a fair enough compromise. At that point, the Holocaust joins slavery and the crusades in the history books.

BTW, I'd apply the same rule to the ridiculous practice of politicians apologising for everything and then some. The Roman Catholics apologising for the Galilei trial, etc. Leave it in the history books, and save your apologies for things that happened in living memory. (Like, say, priests diddling little boys.)
9.8.2009 4:25pm
martinned (mail) (www):

It was always my position that when it came to uniting with the U.S., the only viable course was for them to apply for entry into the U.S. as states, because the global responsibilities of the U.S. don't allow for any interruption in the continuity of its government.

You may want to rethink this one. European Integration is a process defined by compromise and more compromise. That's why our American friends are not ready. They can't even compromise amongst themselves.
9.8.2009 4:27pm
yankev (mail):

And do our friends in GITMO know this?
Our friends in GITMO aren't there for offending someone by publishing a cartoon.
9.8.2009 4:36pm
Jon Roland (mail) (www):
martinned:

European Integration is a process defined by compromise and more compromise.

And while they are compromising they are helpless on the world scene, depending on us to defend and shelter them while they work things out.

That's why our American friends are not ready. They can't even compromise amongst themselves.

We uphold the principle (even if often violated) that we don't compromise on the Constitution, only on policy issues. But you are the one who needs to rethink. We did our compromising on federal issues within a two-year timeframe 1787-88, and since then have been working out the details. When Europe can do as much as quickly it will be time to compare them on comparable matters.
9.8.2009 4:38pm
yankev (mail):

I'd argue that there is nothing in US history that reflects a Holocaust-level of evil, except maybe slavery.
Maybe. Or maybe not. Have you asked Vine DeLoria, Buffie St. Marie and Russell Means what they think about it?
9.8.2009 4:42pm
/:
That's why our American friends are not ready. They can't even compromise amongst themselves.

Compromise is an ideology to them (specifically the materialist, vitalist, etc., not liberals), in the absence of the transcendence.

I prefer freedom from government and truth.
9.8.2009 4:43pm
martinned (mail) (www):

We uphold the principle (even if often violated) that we don't compromise on the Constitution, only on policy issues. But you are the one who needs to rethink. We did our compromising on federal issues within a two-year timeframe 1787-88, and since then have been working out the details. When Europe can do as much as quickly it will be time to compare them on comparable matters.

When is the last time the American people compromised amongst themselves on a "policy issue"? I'd say the current health care "debate" is the ultimate case in point.

The European Community is not a country, and its treaties are not a constitution. Instead, the Community is a phenomenon that is sui generis. (Quoting the ECJ here.) It is a legal order that governs close to 500 million people, and we're making it up as we go along. No one knows where it is going, and no one can agree on where it should be going, or even whether it should be going anywhere. Comparing the Treaties to a constitution is fallacious.
9.8.2009 4:45pm
martinned (mail) (www):
BTW, just to be clear: Nothing I've written in this thread was meant as, or should be taken as, a Tu Quoque argument. I do not agree with the decision by my government to prosecute these people, and I have no interest in defending it. (Explaining it: yes, defending it: no.)
9.8.2009 4:52pm
yankev (mail):

We uphold the principle (even if often violated) that we don't compromise on the Constitution, only on policy issues. But you are the one who needs to rethink. We did our compromising on federal issues within a two-year timeframe 1787-88, and since then have been working out the details. When Europe can do as much as quickly it will be time to compare them on comparable matters.
Well put, sir, well put.

When is the last time the American people compromised amongst themselves on a "policy issue"?
When is the last time a European country refused to compromise freedom and principle when it was not expedient to do so? Iraq? Iran? Muslim riots in France? Standing up for the right of legislators who left Islam to criticise militant Islamic murderers, instead of forcing her to flee the country for her life?

I'll take debates over health care any day.
9.8.2009 4:52pm
einhverfr (mail) (www):
Martinned:

I am still trying to understand why advocacy of a future action at an indeterminate time (as in Yates) is more protected than expressing sympathy with a past action (as in Leroy).

It seems the Leroy ruling would suggest that as long as the fine wasn't excessive, punishing people for distributing A Communist Manifesto and emphasizing the parts calling for a moral obligation to support the revolution would be just fine.
9.8.2009 4:54pm
Rr:
@yankev -

But that part of our history hasn't played itself out yet. There no "anti-denial laws" to be passed ... they're still alive (barely) and their plight is invisible (or irrelevant) to the average person. A crying shame if you ask me.

But, back to NL and the EU. This kind of ruling is no surprise. In a country where the press is limited in its coverage of the royal family, and where you can get fined for wearing a t-shirt that "offends the good name of the police" this kind of thing just happens. Maintaining social order still trumps free speech.

I think NL is in an enormous social identity crisis, and laws just don't yet reflect the new makeup and nature of the new Dutch society and mass communications. But, perhaps the "new" politicians will actually be willing to push for change ... although I'm not holding my breath. And you should ask some people on the street how well they're liking the whole EU thing ... it's not like it's a smooth integration.
9.8.2009 4:56pm
martinned (mail) (www):

I am still trying to understand why advocacy of a future action at an indeterminate time (as in Yates) is more protected than expressing sympathy with a past action (as in Leroy).

Leroy was punished for inciting future acts of terrorism. I would have to take a look at that Yates case to compare them, though.

Expressing sympathy with past action is protected speech. (I hope.)
9.8.2009 5:05pm
ChrisTS (mail):
As long as the US are genuinely willing to compromise, why wouldn't the Canadians join in?

Because they watch us and think we are nuts?
9.8.2009 5:09pm
martinned (mail) (www):

But, back to NL and the EU. This kind of ruling is no surprise. In a country where the press is limited in its coverage of the royal family,

Under ECtHR case law, even members of the royal family are entitled not to have their picture taken without their permission, except in situations that can reasonably be considered "public appearances". That sounds OK to me. Note that this does not actually interfere with the ability of the press to write about the royal family, or about anyone else.


and where you can get fined for wearing a t-shirt that "offends the good name of the police" this kind of thing just happens. Maintaining social order still trumps free speech.

Presumably that refers to the habit of certain groups to wear T-shirts that say ACAB, meaning All Cops Are Bastards. Personally, I think the police should be able to take that one, but the rule that you can't insult a police officer on duty has a long pedigree.


I think NL is in an enormous social identity crisis

That is certainly true. Please don't get me started...
9.8.2009 5:09pm
einhverfr (mail) (www):
Having raised the concerns I have with European protections of Freedom of Speech, I figure it is worth noting that the US didn't arrive at our position overnight. I don't doubt that if we were back fifty years ago, many of those touting American superiority would be touting limiting the First Amendment in regards to Communist advocacy and a return to the interpretation in Whitney v. California.

The thing is that we started out with the "bad tendencies" test from English common law when these first came before the court and moved from there to a "clear and present danger" test. The tests have been successively strengthened to the current standard ("intended and likely to cause imminent lawless action" in Brandenburg) because it has been shown time and time again that lesser tests are not workable.

I think the EU will need to go through this process as well and learn through trial and error that free speech cannot exist unless its protection is quite robust. As Rr hints, most EU countries don't have even a century of robust protections for freedom of the press. Some still have blasphemy laws on the books, and at least one EU member recently passed a blasphemy law.

This isn't a failure of Europe to stand in awe of the US. Rather it is the fact that free speech rights are still immature in the EU-- we still had blasphemy trials in THIS country in the mid 18th century....
9.8.2009 5:10pm
martinned (mail) (www):

As long as the US are genuinely willing to compromise, why wouldn't the Canadians join in?

Because they watch us and think we are nuts?

:-)
9.8.2009 5:11pm
einhverfr (mail) (www):
Martinned:

Expressing sympathy with past action is protected speech.


But the court's holding in Leroy was that the cartoon "glorified" the action and thus incited similar actions in the future.

In Yates, the issue was whether encouraging people to believe that violent overthrow of the US was necessary was protected speech. In Yates, the court held that it was, provided that one wasn't trying to assemble an army to accomplish this.

If expressing sympathy with past actions would categorically be protected, expressing sympathy with the planning of the holocaust would be protected in the EU, but we all know that isn't the case.
9.8.2009 5:13pm
martinned (mail) (www):

most EU countries don't have even a century of robust protections for freedom of the press

I would like to note for the record that the Netherlands has had a free press since before our independence in 1581. Here is where all the crazies came to publish their stuff. (Spinoza, who was actually Dutch, Descartes, Montesquieu, etc.)

BTW, this whole blasphemy thing shouldn't impress you overmuch. Many countries, including mine, have them on the books, because they are the European equivalent to making noise about Roe v Wade: It's what conservatives to do energise the base.

Actually using them would normally run afoul of the ECHR. That is why the Dutch case law allows a prosecution such as the one discussed here only for insult against a group, not against their religion. It's a subtle and probably unworkable distinction, but it puts almost all blasphemy prosecutions on the wrong side of the line.
9.8.2009 5:15pm
martinned (mail) (www):
@einhverfr: I'm not sure I understand the problem. Glorifying past actions is protected speech to the extent that it does not fall under one of the established exceptions to art. 10, including "forward-looking" incitement.

In the Leroy case, the court found that the circumstances of the case were such that the French court could reasonably infer incitement, and also such that the French state could reasonably decide that this prosecution was "necessary in a democratic society" within the meaning of art. 10 (2) ECHR.
9.8.2009 5:18pm
Rr:
@martinned

I was actually referring to the "idiotie" t-shirt and its predecessor (can't remember what that one said). To me that's a waste of tax payer money at its finest. Not to mention that it's actually not offending the good name but rather stating the truth ;)

@einhverfr

On the formation of EU law: I think the greatest challenge - and perhaps one the U.S. didn't have as much even in different form - is reconciling many hundreds of years of individual nations' laws and societal norms. While it is European fashion (much like for our cousins up in the great white north) to do things through committee and compromise, there is only so much that can be compromised on (ask the Dutch about how well this multi-cultural society building is going).


As far as I'm concerned this whole "inciting violence" and "making terrorist threats" stuff is overused way too much. The jury's still out on whether oppressing or allowing this kind of speech is more effective and why.
9.8.2009 5:43pm
martinned (mail) (www):

While it is European fashion (much like for our cousins up in the great white north) to do things through committee and compromise, there is only so much that can be compromised on (ask the Dutch about how well this multi-cultural society building is going).

One of my favourite Dutch columnists has a new book out called "Nobody Governs". That about sums it up. Like freedom of the press, this is a Dutch tradition that goes back to the Reformation. The great Johan de Witt, arguably the greatest leader the country has ever had (1653-1672), was a master at playing all the committees. He was the spider in the web. He didn't run the country by giving orders, but by pulling strings behind the scenes, by having the best records of all the precedents and all the resolutions voted by all those committees. With the brief exception of the 1814-1848 period, when we had a fairly powerful king, Dutch politics has always worked that way: low on charisma, high on endless meetings where nothing ever gets decided.
9.8.2009 5:52pm
einhverfr (mail) (www):
Martinned

I'm not sure I understand the problem. Glorifying past actions is protected speech to the extent that it does not fall under one of the established exceptions to art. 10, including "forward-looking" incitement.


"I think it is wonderful how the Christian churches worked so hard to protect society from the menaces of witchcraft and heresy. I would have loved to be there to smell the pyres."

Protected?
9.8.2009 5:54pm
einhverfr (mail) (www):
Suppose I finish it with "Maybe sometime it will happen again?"
9.8.2009 5:55pm
ChrisTS (mail):
martinned:

:-). Back atcha.
9.8.2009 5:59pm
ChrisTS (mail):
Leo Marvin:
For the nth time, the OP shows a commitment to principle over partisan interests that distinguishes this site.

Harrison Leo, Dear, are you implying something about the comments?
9.8.2009 6:03pm
MarkField (mail):

Our friends in GITMO aren't there for offending someone by publishing a cartoon.


True. Sometimes they're there for even less.
9.8.2009 6:06pm
martinned (mail) (www):
@einhverfr: That example is a world apart from what Leroy did/wrote. I don't see how this could be considered incitement, given the absence of an "impact plausible sur l’ordre public". (par. 45 of the ruling, quoted above)

The result of art. 8 of that Council of Europe Terrorism treaty, which I also posted earlier, is that an incitement charge can be brought also if the incitement is unsuccessful, if no actual criminal act resulted. But it has to be at least reasonably plausible that witches will actually be burned as a result of the statement in question.
9.8.2009 6:07pm
martinned (mail) (www):
Correction: Art. 8 applies only to incitement to terrorism. But similar rules also exist for incitement generally, including incitement to burn witches.


{22:18} Thou shalt not suffer a witch to live.

(This one I came across yesterday. I'm actually getting 14 hits for "witch" in the King James Bible.)
9.8.2009 6:10pm
Leo Marvin (mail):
ChrisTS:

Leo, Dear, are you implying something about the comments?

Not at all. I find the comments a constant source of instruction and amusement. For example, I now know that Obama has managed the previously unimaginable task of smuggling Bolsheviks into the Romanoff klan.

(Of course when I say "unimaginable," I don't mean unimaginable to me. If I thought him capable of any less I wouldn't be bowing five times a day toward Chicago.)
9.8.2009 6:33pm
einhverfr (mail) (www):
Martinned:

But it has to be at least reasonably plausible that witches will actually be burned as a result of the statement in question.


I don't think it is plausible that terrorist acts would be done due to the cartoon in the Leroy case.

I DO think it is plausible that terrorist acts would be done due to preaching moral necessity to overthow the government at some indefinite point in the future.

This is why I am having trouble with this. I think advocacy of communist revolution IN THE ABSTRACT is more likely to create terrorist attacks than expressing satisfaction about past terrorist attacks.
9.8.2009 7:44pm
einhverfr (mail) (www):
Heh. Makes me want to reproduce the cartoon in question, add flames to the cartoon, and say, "we have to burn Out-Witches somehow."
9.8.2009 7:47pm
Laura(southernxyl) (mail) (www):
Back to the question of why European countries might need Holocaust denial laws, while we have slavery and Jim Crow in our past and don't have those:

We are not they. Once again. And this goes to the question, also, tongue-in-cheek though it might have been, about why we don't dissolve our border with Canada.

As much as multiculturalism and diversity-advocating in some forms bother me, there's one very important point that ironically sometimes get lost among people who push these things. It is that people are different, groups of people are different, nations of people are different, and that's OK; it's a good thing, actually. Why should we and Canada, or we and Mexico, compromise our differences in order to merge?

Years ago I read a little publication about the ecumenical movement in Christian churches. It was written by an abbot in a Coptic monastery, and lent me by an Egyptian coworker. The abbot said that when people try to force different congregations to unite, they have to find ways to compromise their differences. Inevitably the side that gives in feels that they have lost something. The groups tend to focus on their differences, which tend to be the less important things, rather than the essential things they have in common. He said it was better for people to find the denomination where they felt best able to worship and so forth, and that if everyone would do that, then at the proper time God would bring about unity and it would be real unity. I'm not suggesting that God is going to unite the nations - I'm not sure that anything short of a full-fledged alien invasion could do that right now - but I think this is analogous in that forcing compromise in order to force unity isn't the path toward people feeling unified; and that it's best for people to have options so they can find a venue where they are comfortable and happy. If every place is like every other place there are no options.
9.8.2009 7:51pm
Jon Roland (mail) (www):
martinned:

The European Community is not a country, and its treaties are not a constitution.

Nevertheless its leaders keep pushing for adoption of a "constitution" which the people of several EU countries had the good sense to reject. As a exercise in constitutional draftsmanship it stands as a monument to incompetence. Some countries have adopted some really bad constitutions, but none of them are as bad as that one.
9.8.2009 9:15pm
martinned (mail) (www):
@Jon Roland: At the time, I insisted on calling it by its proper name: Constitutional Treaty. That's what it was, a Treaty that did for the EU what a constitution does for a country. As far as the draftsmanship goes: a) did you read it? and b) what other constitutions have you read recently? Personally, I rather like the German constitutional system. But I can't say that the German basic law is easier to read than the Constitutional Treaty.

BTW, I'm not sure why replacing all the current treaties with one, new one should be a bad thing. In terms of transfer of competences, the Constitutional Treaty was much more modest than the Maastricht, Amsterdam and Nice Treaties. That's why it was simultaneously important and unimportant: It was unimportant because it changed relatively little about the substantive law, and it was important because it was a statement saying that the EU considered itself to be travelling towards statehood.

Now that that statement has been rejected, the EU is back to having two treaties, the EC treaty and the EU treaty, that are much less accessible to the Citizens of the Union. Cui bono?
9.8.2009 10:28pm
Jon Roland (mail) (www):
martinned:

@Jon Roland: At the time, I insisted on calling it by its proper name: Constitutional Treaty. That's what it was, a Treaty that did for the EU what a constitution does for a country.

a treaty can never do what a constitution does, because a constitution is a law, and a treaty isn't. The failure to keep that clear is the beginning the incompetence of it.

As far as the draftsmanship goes: a) did you read it? and b) what other constitutions have you read recently?

Yes, and every national constitution in English, or the English translations, going all the way back to the first ones. We have most either online or linked to here.

To get a sense of the significance of our site, when East Timor adopted its first constitution it didn't have a server of its own to put it online, and didn't know how to convert it to HTML, so they asked us to host it, and we did, and converted to HTML and text. They said they looked to our site for guidance in drafting their constitution, as the best resource they could find on the subject. We get a lot of that.
9.8.2009 11:23pm
einhverfr (mail) (www):
Laura:

I tink there are two questions which get easily confused

1) Would Europe be better off with more robust free speech protections? (I think the answer is yes here)

2) How hashly can we, as Americans, judge them for not living up to our standards? (I agree with you that judgement is generally best reserved here).
9.8.2009 11:38pm
Jon Roland (mail) (www):
einhverfr:

2) How hashly can we, as Americans, judge them for not living up to our standards?

They are not "our" standards, any more than are the principles of sound design of architectural structures or space vehicles. We only discovered them first. They are not matters of arbitrary convention or taste.
9.9.2009 12:20am
einhverfr (mail) (www):
Jon Roland:

They are not "our" standards, any more than are the principles of sound design of architectural structures or space vehicles. We only discovered them first. They are not matters of arbitrary convention or taste.


That suggests that other combinations and views are not possible or reasonable. It also places way too much emphasis not on the founding fathers but on jurisprudence developed in the 20th century or my liking.

Up until Schenck (in 1919) the First Amendment was interpreted merely as a reminder of free speech rights in English common law-- that speech inciting "bad tendencies" were outside its purview. It was only really during and after the McCarthy period that free speech jurisprudence gained real teeth in cases like Yates, Brandenburg, and the like.

I agree with the development of free speech jurisprudence. However, it would be unfair to credit the revolutionaries in 1789 with the vision of what jurisprudence would develop in the 1950's through 1970's. Nor is it fair to suggest rules which have only really been around for 30-50 years have withstood the test of time sufficient to render them to be universal engineering principles.
9.9.2009 1:03am
einhverfr (mail) (www):
(and it is easy to forget that we too had our blasphemy prosecutions, and that it wasn't too long ago that some states had religious tests for office even if these were in general terms.)
9.9.2009 1:05am
/:
However, it would be unfair to credit the revolutionaries in 1789 with the vision of what jurisprudence would develop in the 1950's through 1970's. Nor is it fair to suggest rules which have only really been around for 30-50 years have withstood the test of time sufficient to render them to be universal engineering principles.

It's like I'm reliving that scene in Babylon 5 just before aged Delenn walks in and gives everybody a verbal lashing.
9.9.2009 4:25am
martinned (mail) (www):
@einhverfr: I hope you're not forgetting that there is only one place in the western world where you can get fined for swearing on TV.

@Jon Roland: Treaties are most certainly law. (There has been a discussion about this earlier this week on Prawfs, btw. Post 1, Post 2.) In fact, both in your country and in mine, treaties made are part of domestic law, and where appropriate citizens can claim their rights under treaties in court. An example of that was mentioned above: the prosecution of the OP is going to be tested against art. 10 of the European Convention on Human Rights, and if found wanting, the prosecution can not go ahead.

What's more, even if international law generally is not law, European Community Law is a legal order unlike any other, i.e. sui generis, as the ECJ said in its rulings in Costa v ENEL and Van Gend &Loos in the 1960s. The most recent example of that is the Court's ruling in Kadi, which I disagree with for that very reason.

Community Law is Law, and the Treaties do for the Community what a constitution does for a country: establish what the different institutions are, how the power of lawmaking is divided between them, and how the lawmaking power of the Community as a whole is limited by the rights of the citizens and by the powers that the Member States have seen fit to keep for themselves.

One key consequence of that is that the US Congress seems to consider the list of art. I (8) as a list of suggestions, while the Community Courts watch very carefully to make sure no law is made that is not authorised by the Treaties. (Yesterday, they ruled in Commission v. Parliament and Council about a Regulation on the international shipment of waste. Thank heavens, the Court said the correct legal basis had been used. The Regulation took 3 years to negotiate as it is, and I shudder to think what would have happened if they'd have had to do that all over again.)
9.9.2009 9:35am
Soronel Haetir (mail):
Martin,

The breech of limited delegated powers in the US is unfortunate. If there were some way to force the federal government back into that role short of armed uprising I'd love to hear it.
9.9.2009 10:45am
martinned (mail) (www):
@Soronel Haetir: Well, there is and there isn't. One way to do that would be to put more judges and justices on the courts who care about this. That's only kinda a solution, since those people are nominated by the President, who probably won't be interested in this idea. (Regardless of his party.)

Part of the problem of that would also be that a strict interpretation of that list would lead to all sorts of unworkable outcomes. While the libertarians would rejoice, most of the country probably would not. Look at the German list(s). By design, their system put somewhat more power at the federal level than in the US, but their lists also reflect a more contemporary assessment of what the best level is for various matters. If the American people were serious about limiting federal power in this way, they'd have to rewrite their list.

Which is the second option... A constitutional amendment, which rewrites the list of art. I(8) and requires the Feds, on penalty of nullity, to say in every statute which of the enumerated powers gives them the right to do what they are doing. The ECJ created that requirement in its case law, it isn't laid down in the Treaties. Instead, the Court argued that this is part of the obligation to give reasons. The standard formula is:


It should be remembered, as a preliminary point, that, according to the Court’s settled case-law, the choice of legal basis for a Community measure must rest on objective factors which are amenable to judicial review, including in particular the aim and the content of the measure.

The German list is somewhat more flexible, but there, too, the Constitutional Court annulls laws with some regularity for being ultra vires. If the list is up to date, and if the courts are willing, such a system is certainly workable.
9.9.2009 10:57am
einhverfr (mail) (www):
Martinned:

In fact, both in your country and in mine, treaties made are part of domestic law, and where appropriate citizens can claim their rights under treaties in court. An example of that was mentioned above: the prosecution of the OP is going to be tested against art. 10 of the European Convention on Human Rights, and if found wanting, the prosecution can not go ahead.


The EU is sort of an odd case. The basic treaties which form the basis of the EU essentially form your basis in Constitutional law. In exchange for being a part of the EU, countries agree to abide by certain principles. I think that this is fine in this context, as it isn't that different theoretically from our Constitution.

However, one of my major concerns relating to the use of treaties to accomplish individual rights in other contexts is that governments derive their power from the governed. For treaties to affect the governed strikes me as a sort of collusion that is problematic to the idea that we should be willing to value pluralism and instead invites cultural arrogance.

BTW, I see the Convention Against Torture as being both non-self-executing (at least from an American viewpoint) and only governing our obligations to foreigners-- i.e. it is an agreement between states relating to how we treat foreign nationals. US persons (nationals, citizens, and residents), and anyone arrested in the US for any reason, fall under a different standard (the 8th Amendment).

You may say that the 8th Amendment is broader protection than the CAT, but if we all decided that public whipping was GREAT punishment for murder in lieu of the death penalty tomorrow, I don't think the CAT would be an argument against that.
9.9.2009 11:29am
martinned (mail) (www):
@einhverfr: First of all, just to make sure you know this: The European Convention on Human Rights and the European Court on Human Rights have nothing whatsoever to do with the EU. In fact, they are both older than the EU/EC. The ECHR is an ordinary treaty, albeit one with certain supranational aspects. One of the consequences of that is that a win in Strasbourg (ECHR) doesn't get you as much as a win in Luxembourg (ECJ). That is why litigation in Italy still takes decades, why Turkey still violates the rights of the Kurds and why Russia still, well, sigh....

I think the Supremacy Clause of the US constitution establishes a monist system of international law in the US, meaning that treaties made have direct effect if - to borrow some lingo from the ECJ case law on direct effect of treaties and directives - they are intended to create rights and obligations for citizens, and if they are written with sufficient precision to be capable of doing so. Whether that is a good idea is a separate matter.

In the US the ratification process is for historical reasons different from the normal lawmaking process. I know of no other country where that is so. Assuming there is no conflict between the treaty in question and the constitution, ratifying a treaty is exactly the same as enacting a statute, except for the amendment power. So there is no reason to consider law by treaty as somehow less legitimate than law by statute.

(In the US, I'm not entirely sure whether getting 2/3 of the senate to vote for a treaty is easier or harder than getting 60 votes in the senate and a majority in the House. I'm also not entirely sure whether the answer to that question matters particularly for the legitimacy issue.)

As for whether the 8th amendment offers broader protection than CAT, that's a side question. My two cents: As written, the CAT protects individuals much more than the 8th amendment. There are any number of things that are forbidden by the former but not the latter. However, given the US reservations with CAT, the treaty is automatically incapable of doing anything the 8th amendment doesn't already do.
9.9.2009 11:46am
Jon Roland (mail) (www):
einhverfr:

it would be unfair to credit the revolutionaries in 1789 with the vision of what jurisprudence would develop in the 1950's through 1970's.

On the contrary, the writings of Madison, Jefferson, and others of like mind from that era make it quite clear they intended all that and more. It just took 150 years for most of their countrymen to catch up with them.

Thomas Cooper, cited in a previous thread, wrote an 1829 essay, "The Right of Free Discussion", that reviews the progress of the right to that day, tracing it back to Milton's Areopagitica.

We should not understand the Constitution only by the standard of the practices that prevailed at the time it was adopted or for decades thereafter. It was a discovery of principles that were poorly understood or appreciated at the time and continue to be poorly understood and appreciated to this day.

We credit Pasteur with the discovery of germs, but it is still a struggle to get people to prevent the spread of them. Discovery of knowledge is one thing. Propagation and application of knowledge is quite another.
9.9.2009 12:32pm
Soronel Haetir (mail):
Martin,

As far as I know, US law already states the power basis for where a law's authority derives from. My problem is much more akin to John Roland's in that the courts are much too deferential to legislative determination.

Saying that someone growing plants in their own home for their own use is a legitimate regulation of interstate commerce is far into the territory of bad faith. Now, if states desire to regulate such activities, and the people of the state allow the state that power, the situation is entirely different.
9.9.2009 12:41pm
martinned (mail) (www):

Discovery of knowledge is one thing. Propagation and application of knowledge is quite another.

That is one way to sum up the problem discussed in the original post. My ancestors allowed pretty much anybody to publish as they liked since before the Jamestown settlement. Like virtually all things that are now considered as part of the typically American approach to law and society, free speech was invented in Britain and the Netherlands. But yes, discovering it is one thing, holding on to it is something else entirely.
9.9.2009 12:43pm
martinned (mail) (www):
@Soronel Haetir: That's why I said "there is and there isn't". The US constitutional system on this point can be updated and reaffirmed ("We really mean it this time!"), but in the end it all depends on those in power. That cannot be fixed, it is a fact of life in all societies.
9.9.2009 12:46pm
Jon Roland (mail) (www):
martinned:

@Jon Roland: Treaties are most certainly law. ... In fact, both in your country and in mine, treaties made are part of domestic law, and where appropriate citizens can claim their rights under treaties in court.

And if domestic courts decide not to enforce them, can a central government step in to do so? No. And that is why it is not a true law, because the lawmaker, the sovereign, is each nation and not a common authority over all. Voluntary compliance is not law.


What's more, even if international law generally is not law, European Community Law is a legal order unlike any other, i.e. sui generis,

Which is only a way of saying it is in an unstable transitional state, either toward true law and government, or toward collapse and disarray.


Community Law is Law, and the Treaties do for the Community what a constitution does for a country: establish what the different institutions are, how the power of lawmaking is divided between them, and how the lawmaking power of the Community as a whole is limited by the rights of the citizens and by the powers that the Member States have seen fit to keep for themselves.

If it really did that they wouldn't be treaties, even if called that. It is transitional, creating provisional structures and procedures that are sustained only by national compliance, and that can be undone with some future national election.


One key consequence of that is that the US Congress seems to consider the list of art. I (8) as a list of suggestions, while the Community Courts watch very carefully to make sure no law is made that is not authorised by the Treaties.

So did the U.S. Congress for the first century or so. Let's see how long it takes your "community Courts" to fall off the wagon.
9.9.2009 12:48pm
Jon Roland (mail) (www):
martinned:

One way to do that would be to put more judges and justices on the courts who care about this.

We would also have to replace most members of Congress. But merely changing officials won't endure unless the incentive structures are changed, which means changing institutional structures and procedures. My Draft Amendments attempt to do that.


...a strict interpretation of that list would lead to all sorts of unworkable outcomes. While the libertarians would rejoice, most of the country probably would not.

Unpopular, perhaps, but not "unworkable". The departures are all about patronage. A lot of federal employees would be laid off but the functions that deserve doing could still be done by the states or localities.

And not all delegated powers are in Art. I Sec. 8. There are delegations throughout the Constitution.


If the American people were serious about limiting federal power in this way, they'd have to rewrite their list.

And my Draft Amendments have some proposals for that, although I would probably not support most of them.

A constitutional amendment, which rewrites the list of art. I(8) and requires the Feds, on penalty of nullity, to say in every statute which of the enumerated powers gives them the right to do what they are doing.

See my Draft Amendments.
9.9.2009 1:12pm
martinned (mail) (www):
@Jon Roland: So all the "unenforceable" parts of the US Constitution aren't law either? Just recently on VC, the question was raised whether the courts would have jurisdiction to police the minimum age for various offices. I think the conclusion was that they would not. Then there are all sorts of "political questions", not to mention cases where no one has standing, or where the would be defendant enjoys sovereign immunity. (At least here you can sue the state directly, even if that doesn't always suffice to get you a remedy.)

Ultimately, all law is voluntary. It is a game - in the game theory sense of the word - with many players, where compliance with the law is one equilibrium, but not the only one. I can be forced to comply with the law only so long as the police are willing to make me. But why do they comply with the law? Etc., etc.. The law is a coordination device, pushing the outcome of various games towards socially optimal equilibria. In another discussion on another site recently, I mentioned Macaulay's famous 1963 paper about what would later be called "Relational Contract Theory". What he did is, he went and studied how businesses use the law, and he found that only a small part of contractual breaches are resolved through law suits, or even through lawyers at all. Nevertheless, the law is useful because it provides an "outside option" for both parties during their renegotiation following breach.

In many situations, positivism is a good way to think about the law. But in many others, including questions about the fundamental structuring of society, it is highly flawed. Some of the things that I do when I'm not wasting my time writing on this blog have to do with economic theories of contracting, along the lines of this paper by the younger Volokh brother. Both from an economics point of view and from the point of view of legal theory and philosophy, your approach is much too simple.

Using positivism as a decision rule to distinguish "law" from "not law" in a constitutional context is only possible if one accepts at least one resolution for the problem of the rule that needs no justification. In the end, it is hard to avoid the conclusion that law is whatever people treat as law, which is one way to summarise Hart's Rule of Recognition.

Finally, EC law is "in transition" only because they've been messing with it so much in the last few decades. Regardless of whether the Lisbon Treaty will end up being adopted, I think it will be the last Treaty amendment for a while. The system of the Treaties as it is works pretty well, and it will work better with the Lisbon Treaty ratified, so I'd suggest we not mess with it for a while now. Whether eventually more "transition" is necessary, and if so in which direction, is for those then living to decide.
9.9.2009 1:16pm
Jon Roland (mail) (www):
martinned:

@Jon Roland: So all the "unenforceable" parts of the US Constitution aren't law either? Just recently on VC, the question was raised whether the courts would have jurisdiction to police the minimum age for various offices. I think the conclusion was that they would not. Then there are all sorts of "political questions", not to mention cases where no one has standing, or where the would be defendant enjoys sovereign immunity.

The Constitution provides for enforcement of some of its provisions by only or mainly nonjudicial procedures, which comes down to the people and what they are accustomed to enforce through elections. Those are the properly regarded "political questions". However, the courts have also been evading their duty to decide some kinds of issues. The doctrine of "standing" as we have it today only stems from Frothingham v. Mellon, 262 U.S. 447 (1923), discussed here. I regard "sovereign" or "official" immunity as unconstitutional as a bar to a suit, rather than to execution of a money judgment.


Ultimately, all law is voluntary. It is a game - in the game theory sense of the word - with many players, where compliance with the law is one equilibrium, but not the only one.

Yes, but it makes a difference whether there are enforcers in place, organized and resourced and disposed to enforce if asked to do so, and likely to be effective at doing so. No such common enforcement structure and procedures exist for the EU.
9.9.2009 1:49pm
martinned (mail) (www):

The Constitution provides for enforcement of some of its provisions by only or mainly nonjudicial procedures, which comes down to the people and what they are accustomed to enforce through elections.

Yes, and are the parts of the Constitution that are enforced in this way "law"? If so, how is this different from the people being "accustomed" to elect people who do not ignore their treaty obligations?
9.9.2009 2:01pm
Jon Roland (mail) (www):
martinned:

are the parts of the Constitution that are enforced in this way "law"?

Yes, because there is an attainable enforcement procedure, even if the enforcers are negligent.

If so, how is this different from the people being "accustomed" to elect people who do not ignore their treaty obligations?

Do voters in the EU really do that? I suspect it is special interests rather than popular demand that is operating to that effect.

Alas, ours no longer do, although some of us are working on that.
9.9.2009 2:12pm
martinned (mail) (www):
@Jon Roland: Do US voters really do that? I am told a Senator younger than 30 was already elected once. (Though admittedly not by the general voting public.) I still don't see how voting counts for (the non judicically enforceable parts of) the US constitution, but not for all other non judicially enforceable law. Law are rules that people are wont to observe out of a sense of opinio juris. That is circular, but it works.
9.9.2009 2:22pm
einhverfr (mail) (www):
Jon Roland:

Part of the problem with original intent is that the framers were not of one mind about the scope of things like whether the Alien and Sedition Acts were Constitutional or not (Jefferson clearly thought so, but he seems to have been an exception and he spent more time attacking the acts on a limited powers basis than on a free speech basis). Furthermore, Jefferson didn't seem to think that state blasphemy laws ran amok with the first amendment (this didn't become a problem until after incorporation doctrine arose with the 14th Amendment).

So it is quite clearly erroneous to think that the Constitutional Convention members in 1789 envisioned that the first amendment would be used in the way it was in Brandenburg, for example.
9.9.2009 2:38pm
martinned (mail) (www):

So it is quite clearly erroneous to think that the Constitutional Convention members in 1789 envisioned that the first amendment would be used in the way it was in Brandenburg, for example.

To paraphrase my friend Zarkhov: Maybe they were libertarians without knowing they were libertarians.
9.9.2009 2:45pm
martinned (mail) (www):
@Jon Roland: Actually, there's a better example also mentioned above: The Dutch constitution. In art. 120, it explicitly forbids the courts to examine the constitutionality of an Act of Parliament. By your logic, that means that there is no law limiting parliament in any way. But that can't be right...

(Theoretically, an executive order or act of delegated lawmaking could be found unconstitutional, but I've never heard of that happening. Autonomous Royal Decrees as a source of law may or may not exist, depending who you ask. In any case, they're extremely rare. Delegated lawmaking would not normally be found unconstitutional if it is covered by statute. After all, such a finding would involve the court doing exactly what art. 120 forbids: finding a statute unconstitutional.)
9.9.2009 4:43pm
Jon Roland (mail) (www):
martinned:

I still don't see how voting counts for (the non judicially enforceable parts of) the US constitution, but not for all other non judicially enforceable law.

It does, in large part, but there are other public duties than just voting, such as militia and jury (which should be understood as a specialized kind of militia). The founding era was about governance by jury and militia, as discussed by "The Jury and Consensus Government in Mid-Eighteenth-Century America", William E. Nelson, and that regime was supposed to continue.
9.9.2009 5:56pm
einhverfr (mail) (www):
A question for Jon Roland about your draft amendments:

You want to limit stare decisis? Is that on statutory or just Constitutional grounds? What then happens regarding laws like the Sherman Act? To those become crap shoots?

Also I didn't see in your draft amendments an attempt to repeal the 17th Amendment. In the interest of federalism, are you interested in that cause?

Finally, do you disagree with incorporation of the Bill of Rights against the States? I.e. do you think we should go back to a point where states are allowed to pass blasphemy laws?
9.9.2009 5:58pm
Jon Roland (mail) (www):
einhverfr:

So it is quite clearly erroneous to think that the Constitutional Convention members in 1789 envisioned that the first amendment would be used in the way it was in Brandenburg, for example.

No, it is erroneous to argue that the First Amendment was intended to apply to the states. Read the Documentary history of the Bill of Rights. There were two amendments proposed, one restricting Congress and one restricting the states. Only the former was sent to the states, because too many of them had establishments of religion and it was thought politically unwise to disturb that. It did make the federal Sedition Acts unconstitutional, but some, like Jefferson, chose arguments that also applied to the Alien Acts, and that was the Tenth Amendment.

Even with adoption of the 14th, it is erroneous to find the First Amendment providing jurisdiction for federal courts to decide cases between a citizen and his state concerning those rights. The logical source for those rights is the Ninth Amendment.
9.9.2009 6:04pm
Jon Roland (mail) (www):
einhverfr:

You want to limit stare decisis?

Yes, although enforcement of the limit is a problem.

Is that on statutory or just Constitutional grounds?

Constitutional. The judicial oath is to uphold the Constitution, not precedent. That means never presuming precedent is correct.

What then happens regarding laws like the Sherman Act? To those become crap shoots?

I regard the provisions that allow for governmental prosecution to be unconstitutional. Only private prosecution of civil actions is allowed under the Jurisdiction Power.


Also I didn't see in your draft amendments an attempt to repeal the 17th Amendment. In the interest of federalism, are you interested in that cause?

No. Election of U.S. senators by state legislatures never worked as intended, and had been abandoned by most states by the time the 17th was ratified, for good reason. A way to achieve that purpose might be to empower state legislatures to remove U.S. senators, not elect them.


Finally, do you disagree with incorporation of the Bill of Rights against the States? I.e. do you think we should go back to a point where states are allowed to pass blasphemy laws?

My position is that all the Bill of Rights except the First created a federal question jurisdiction for cases between a citizen and his state. In other words, I regard Barron v. Baltimore as having been wrongly decided. However, since the rights recognized in the First are also covered by the Ninth, that includes them indirectly. So no state blasphemy laws (or a lot of other laws either).

Keep in mind I am a libertarian constitutionalist. If it were up to me most of the things now being done by government would not be done by government at any level, but be left to the market or to social pressure, and I find all the authority I need for that in our established constitutions, if properly understood. There are many evils in the world that are beyond the competence of government.
9.9.2009 6:25pm
Jon Roland (mail) (www):
martinned:

The Dutch constitution. In art. 120, it explicitly forbids the courts to examine the constitutionality of an Act of Parliament.

That was a decision by its framers to leave such constitutionality to the voters. Personally, I think the voters need courts to at least render declaratory judgments so they can have a standard to rally around.
9.9.2009 6:29pm
ChrisTS (mail):
Laura:
As much as multiculturalism and diversity-advocating in some forms bother me, there's one very important point that ironically sometimes get lost among people who push these things. It is that people are different, groups of people are different, nations of people are different, and that's OK

In fact, my article was inspired by a mutli-culturally grounded rant about how awful the French decision on religious [and political] symblos in schools is. In effect, the article argued, there is only one acceptable model of "nation sharing."
9.9.2009 7:01pm
Laura(southernxyl) (mail) (www):
Are we reminded of teenagers who, in order to express their individuality, conform to the group's concept of coolness?

Except that my daughter's generation of teens struck me as much more individualist than mine was.
9.9.2009 7:43pm
martinned (mail) (www):

That was a decision by its framers to leave such constitutionality to the voters. Personally, I think the voters need courts to at least render declaratory judgments so they can have a standard to rally around.

By your logic, why does that not take away the Dutch constitution's claim to be law? Remember: No juries in Dutch law, ever, and no militia.
9.9.2009 9:32pm
Jon Roland (mail) (www):
martinned:

By your logic, why does that not take away the Dutch constitution's claim to be law? Remember: No juries in Dutch law, ever, and no militia.

It takes away from a claim of being soundly designed. It is not a constitutional republic without militia. In fact, it has militia. The Dutch just don't know it, and it is too inactive to keep the government constitutional. As for juries, it is nice that you think you can trust your judges but I suspect they are more corruptible that most Dutch realize.
9.9.2009 10:43pm
Soronel Haetir (mail):
I actually have an entirely different solution to the Senate problem. Have dual state/federal officials serve that role, the state's Governor is one logical choice. Not sure who else, perhaps let each state decide.

That official should then be empowered to appoint a deputy to perform duties of the role not being attended to at the current moment.

I once worked out a fairly complicated scheme that would make this work while retaining the Senate's staggered terms, mostly by allowing an officer to resign the state seat while keeping the federal after having won re-election, so that someone could have just the Senate seat only if they had won two consecutive terms at the state level.

This would serve to fix the problem the 17th addressed, including legislatures being unable to decide on who to elect, as well as keeping the federal officer at least somewhat beholden to their state's interests.

I do think recall provisions for congressional members would be a good thing as well.
9.10.2009 4:30pm
Jon Roland (mail) (www):
Soronel Haetir:

I actually have an entirely different solution to the Senate problem. Have dual state/federal officials serve that role, the state's Governor is one logical choice. Not sure who else, perhaps let each state decide.

That official should then be empowered to appoint a deputy to perform duties of the role not being attended to at the current moment.

Not workable. Each is more than a full-time job for one person, and they require different skillsets. Each also requires years to get up to speed, even for the most brilliant.

I have done volunteer work for members of Congress, and was often the only subject-matter expert in the area. It is not a job for amateurs.
9.10.2009 6:45pm

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