Posted by Eugene Volokh:
Does a Move To Greater Internationalism Jeopardize American Free Speech Values?
http://volokh.com/archives/archive_2009_04_05-2009_04_11.shtml#1239142185
Well, let's listen to Yale Law School Dean Harold Koh, now nominated
to be the Legal Advisor to the State Department, in his On American
Exceptionalism, 55 Stan. L. Rev. 1479 (2003):
By distinctiveness, I mean that America has a distinctive rights
culture, growing out of its peculiar social, political, and
economic history. Because of that history, some human rights, such
as the norm of nondiscrimination based on race or First Amendment
protections for speech and religion, have received far greater
emphasis and judicial protection in America than in Europe or Asia.
So, for example, the U.S. First Amendment is far more protective
than other countries' laws of hate speech, libel, commercial
speech, and publication of national security information. But is
this distinctive rights culture, rooted in our American tradition,
fundamentally inconsistent with universal human rights values? On
examination, I do not find this distinctiveness too deeply
unsettling to world order. The judicial doctrine of �margin of
appreciation,� familiar in European Union law, permits sufficient
national variance as to promote tolerance of some measure of this
kind of rights distinctiveness.
Good to hear that American free speech tradition isn't "too deeply
unsettling to world order." But wait -- check out the footnote
following this paragraph:
See generally Louis Henkin, Gerald L. Neuman, Diane F. Orentlicher
& David W. Leebron, Human Rights 564 (1999). Admittedly, in a
globalizing world, our exceptional free speech tradition can cause
problems abroad, as, for example, may occur when hate speech is
disseminated over the Internet. In my view, however, our Supreme
Court can moderate these conflicts by applying more consistently
the transnationalist approach to judicial interpretation discussed
infra Part III.C.
And what is this "transnationalist approach" that can help "moderate
these conflicts" caused by American constitutional protection for
"hate speech ... disseminated over the Internet"? Here are the opening
paragraphs of the discussion of "the transnationalist approach" is
Part III.C:
What is transnational legal process? While most legal scholars
agree that most nations obey most rules of international law most
of the time, they disagree dramatically as to why they do so. As I
have explained elsewhere, I believe that nations obey international
law for a variety of reasons: power, self-interest, liberal
theories, communitarian theories, and what I call �legal process�
theories. While all of these approaches contribute to compliance
with international law, the most overlooked determinant of
compliance is what I call �vertical process�: when international
law norms are internalized into domestic legal systems through a
variety of legal, political, and social channels and obeyed as
domestic law. In the international realm, as in the domestic realm,
most compliance with law comes from obedience, or
norm-internalization, the process by which domestic legal systems
incorporate international rules into domestic law or norms.
Under this view, the key to understanding whether nations will obey
international law, I have argued, is transnational legal process:
the process by which public and private actors -- namely, nation
states, corporations, international organizations, and
nongovernmental organizations -- interact in a variety of fora to
make, interpret, enforce, and ultimately internalize rules of
international law. The key elements of this approach are
interaction, interpretation, and internalization. Those seeking to
create and embed certain human rights principles into international
and domestic law should trigger transnational interactions, that
generate legal interpretations, that can in turn be internalized
into the domestic law of even resistant nation states.
In my view, �transnational legal process� is not simply an academic
explanation of why nations do or do not comply with international
law, but, more fundamentally, a bridging exercise between the
worlds of international legal theory and practice. My time in
government confirmed what I had suspected as a professor -- that
too often, in the world of policymaking, those with ideas have no
influence, while those with influence have no ideas. Decisionmakers
react to crises, often without any theory of what they are trying
to accomplish, and without time to consult academic literature,
which, even when consulted, turns out to be so abstract and
impenetrable that it cannot be applied to the problem at hand. On
the other hand, activists too often agitate without a clear
strategy regarding what pressure points they are trying to push or
why they are trying to push them. Scholars have ideas, but often
lack practical understanding of how to make them useful to either
decisionmakers or activists.
And so it is with American exceptionalism. Like so many aspects of
international relations, this phenomenon has generated a tragic
triangle: Decisionmakers promote policy without theory; activists
implement tactics without strategy; and scholars generate ideas
without influence. If transnational legal process is to bridge this
triangle, how can we use that concept to press our government to
preserve its capacity for positive exceptionalism by avoiding the
most negative features of American exceptionalism? Let me
illustrate my approach with respect to three examples from the
September 11 context: first, America and the global justice system;
second, the rights of 9/11 detainees; and third, America's use of
force in Iraq....
Maybe I'm missing something -- Prof. Koh's discussion of just how the
Court can "moderate ... conflicts" between First Amendment law and
foreign countries that disapprove of American free speech on the
Internet is rather vague here. But it sounds to me quite a bit like
the predictions that [1]Prof. Peter Spiro, another internationalist
legal scholar, made about how international norms could reduce the
scope of American constitutional rights: The President and the Senate
can, in the long run, "insinuat[e] international law" that would
create "a partial displacement of constitutional hegemony" (for
instance, with "an international norm against hate speech ...
supply[ing] a basis for prohibiting [hate speech], the First Amendment
notwithstanding"). "As transnational society develops a common rights
culture, one in which the disaggregated United States enjoys a voice,
the supremacy of international rights may be normatively sustainable.
In the short term, this argues for the relevance of international
norms in domestic constitutional interpretation. In the long run, it
may point to the Constitution's more complete subordination."
In any case, I thought I'd note this, so you folks can read it and
decide for yourselves. Thanks to [2]Ed Whelan (National Review Online)
for the pointer.
References
1. http://volokh.com/archives/archive_2005_05_29-2005_06_04.shtml#1117559166
2.
http://corner.nationalreview.com/post/?q=MGM4ODQ5NDhlMmFhMjlmNDViNTE0NjcxOTQ0NTkwZDU=
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