Obama, International Law, and Free Speech
Stuart Taylor has a very good article this week about the Obama administration, international law, and free speech. This excerpt begins with a quote from Harold Koh, Obama’s top lawyer at the State Department:
“Our exceptional free-speech tradition can cause problems abroad, as, for example, may occur when hate speech is disseminated over the Internet.” The Supreme Court, suggested Koh — then a professor at Yale Law School — “can moderate these conflicts by applying more consistently the transnationalist approach to judicial interpretation” that he espouses.
Translation: Transnational law may sometimes trump the established interpretation of the First Amendment. This is the clear meaning of Koh’s writings, although he implied otherwise during his Senate confirmation hearing.
In my view, Obama should not take even a small step down the road toward bartering away our free-speech rights for the sake of international consensus. “Criticism of religion is the very measure of the guarantee of free speech,” as Jonathan Turley, a professor at George Washington University Law School, wrote in an October 19 USA Today op-ed.
Even European nations with much weaker free-speech traditions than ours were reportedly dismayed by the American cave-in to Islamic nations on “racial and religious stereotyping” and the rest.
Read the whole thing.
New York Mayor Opposes Closing Schools for Muslim Holidays
I have been trying for years to make people understand that a single system of government schools is fundamentally at odds with American values, especially individual liberty and equal treatment under the law. New York City Mayor Michael Bloomberg, in opposing a move to let city public schools close for Muslim holidays as they do for Christian and Jewish holidays, recently made my point in one, simple sentence:
One of the problems you have with a diverse city is that if you close the schools for every single holiday, there won’t be any school.
Exactly. So which religions, and which people, will get to be more equal than others, Mr. Mayor?
With universal school choice, we wouldn’t have to grapple with such terrible questions.
“If You’re Not Having Fun Advocating for Freedom, You’re Doing it Wrong!”
The health care debate has catalyzed a wonderful national clash of cultures centering on freedom versus control. Here’s one example that’s both complex and delightful.
Progressive site TalkingPointsMemo ran a story yesterday about a man named “Chris” who carried a rifle outside an event in Phoenix at which President Obama appeared. “We will forcefully resist people imposing their will on us through the strength of the majority with a vote,” Chris said.
To many TPM readers, this kind of thing is self-evidently shocking and wrong: Carrying a weapon is inherently threatening, Second Amendment notwithstanding. And vowing to resist the properly expressed will of the majority—isn’t that an outrageous denial of our democratic values?
Well, . . . No. Our constitution specifically denies force to democratic outcomes that impinge on freedom of speech and religion, on bearing arms, and on the security of our persons, houses, papers, and effects, to name a few. Our constitution also tightly circumscribed the powers of the federal government. Those restrictions were breached without abiding the supermajority requirements of Article V, alas.
There are many nuances in this clash of cultures, and it’s fascinating to watch the battle for credibility. One ugly issue is preempted rather handily by the fact that Chris is African-American.
Next question, taken up by CNN: Was the interview staged? Hell, yeah! says Chris’ interviewer. And they know each other—big deal.
Finally, they were laughing and having a good time. Isn’t this serious? Yes, it is serious, says Chris’ interviewer, but “If you’re not having fun advocating for freedom, you’re doing it wrong!”
It’s a great line—friendly, in-your-face advocacy that might just succeed in familiarizing more Americans with the idea of living as truly free people.
Today Talking Points Memo is charging that the man who interviewed Chris was a prominent defender of a militia group in the 90s, some members of which were convicted of crimes. I know nothing of the truth or falsity of this charge, and I had never heard of the militia group, the interviewer, or his organization before today.
This struggle over credibility is all part of the battle between freedom and control that is playing itself out right now. It’s an exciting time, and a chance for many more Americans to learn about liberty and the people who live it.
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Filed under: Government and Politics; Law and Civil Liberties; Political Philosophy
Maybe Europe Isn’t Lost to Islamic Terrorism
Europe has come into a lot of criticism lately. Much of it is justified. For instance, cutting military forces while expecting the U.S. to maintain security guarantees is more than little irritating for Americans facing trillions of dollars in deficits and tens of trillions of dollars in unfunded liabilities for various bail-outs and social programs.
However, predictions of a radical Islamic takeover of Europe look less realistic these days. Forecasting the future is always risky. Nevertheless, the feared growing population of Islamic extremists hasn’t appeared. Reports the Guardian:
A district of derelict warehouses, red-brick terraces, and vibrant street life on the canals near the centre of Brussels, Molenbeek was once known as Belgium’s “Little Manchester”. These days it is better known as “Little Morocco” since the population is overwhelmingly Muslim and of North African origin.
By day, the scene is one of children kicking balls on busy streets, of very fast, very small cars with very large sound systems. By night, the cafes and tea houses are no strangers to drug-dealers and mafia from the Maghreb.
For the politically active extreme right, and the anti-Islamic bloggers, Molenbeek is the nightmare shape of things to come: an incubator of tension and terrorism in Europe’s capital, part of a wave of “Islamisation” supposedly sweeping Europe, from the great North Sea cities of Amsterdam and Rotterdam to Marseille and the Mediterranean.
The dire predictions of religious and identity-based mayhem reached their peak between 2004 and 2006, when bombs exploded in Madrid and London, a controversial film director was shot and stabbed to death in Amsterdam, and angry demonstrators marched against publication of satirical cartoons about the Prophet Muhammad.
For Bruce Bawer, author of While Europe Slept, the continent’s future was to “tamely resign itself to a gradual transition to absolute sharia law”. By the end of the century, warned Bernard Lewis, the famous American historian of Islam, “Europe will be Islamic”. The Daily Telegraph asked: “Is France on the way to becoming an Islamic state?” The Daily Mail described the riots that shook the nation in the autumn of 2005 as a “Muslim intifada”.
Yet a few years on, though a steady drumbeat of apocalyptic forecasts continues, such fears are beginning to look misplaced. The warnings focus on three elements: the terrorist threat posed by radical Muslim European populations; a cultural “invasion” due to a failure of integration; and demographic “swamping” by Muslim communities with high fertility rates.
A new poll by Gallup, one of the most comprehensive to date, shows that the feared mass radicalisation of the EU’s 20-odd million Muslims has not taken place. Asked if violent attacks on civilians could be justified, 82% of French Muslims and 91% of German Muslims said no. The number who said violence could be used in a “noble cause” was broadly in line with the general population. Crucially, responses were not determined by religious practice – with no difference between devout worshippers and those for whom “religion [was] not important”.
“The numbers have been pretty steady over a number of years,” said Gallup’s Magali Rheault. “It is important to separate the mainstream views from the actions of the fringe groups, who often receive disproportionate attention. Mainstream Muslims do not appear to exhibit extremist behaviour.”
Obviously, the future is uncertain. Terrorism will remain a threat to both America and Europe. However, we must reduce the number of those hostile to the the U.S. and allied countries as well as stop those already determined to do us ill. So far, thankfully, the news from Europe in this regard appears to be good.
Hate Crimes Bill Becomes an Amendment
Unsure about prospects on passing the Local Law Enforcement Hate Crimes Prevention Act as a stand-alone bill, proponents intend to attach it as an amendment to the Department of Defense Authorization bill. As I have said previously, this bill is an affront to federalism and counterproductive hater-aid.
Federal Criminal Law Power Grab
This legislation awards grants to jurisdictions for the purpose of combating hate crimes. It also creates a substantive federal crime of violent acts motivated by the “actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person.”
This is a federalization of a huge number of intrastate crimes. It is hard to imagine a rape case where the sex of the victim is not an issue. The same goes for robbery – why grab a wallet from someone who can fight back on equal terms when you can pick a victim who is smaller and weaker than you are?
This would be different if this were a tweak to sentencing factors.
If this were a sentence enhancement on crimes motivated by racial animus – a practice sanctioned by the Supreme Court in Wisconsin v. Mitchell – then it would be less objectionable if there were independent federal jurisdiction.
Thing is, the federal government has already done this, with the exception of gender identity, with the Federal Sentencing Guidelines (scroll to page 334 at the link):
If the finder of fact at trial or, in the case of a plea of guilty or nolo contendere, the court at sentencing determines beyond a reasonable doubt that the defendant intentionally selected any victim or any property as the object of the offense of conviction because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person, increase by 3 levels.
The contrast between a sentence enhancement and a substantive crime gives us an honest assessment of what Congress is doing – federalizing intrastate acts of violence.
If Congress were to pass a law prohibiting the use of a firearm or any object that has passed in interstate commerce to commit a violent crime, it would clearly be an unconstitutional abuse of the Commerce Clause.
Minus the hate crime window dressing, that is exactly what this law purports to do.
Robert Wright at Cato Unbound
This month’s Cato Unbound features Robert Wright, who offers us an excerpt from his new book, The Evolution of God. He looks at the possibility of religious tolerance from a game theoretic and evolutionary psychology perspective: Is there a fundamental “clash of civilizations” between Islam and the West? Or just a communication failure? Wright argues that we can work toward understanding by realizing the limits and biases of human moral reasoning:
You might not guess it to read the headlines, but by and large the relationship between “the West” and “the Muslim World” is non-zero-sum. To be sure, the relationship between some Muslims and the West is zero-sum. Terrorist leaders have aims that are at odds with the welfare of Westerners. The West’s goal is to hurt their cause, to deprive them of new recruits and of political support. But if we take a broader view—look not at terrorists and their supporters but at Muslims in general, look not at radical Islam but at Islam—the “Muslim world” and the “West” are playing a non-zero-sum game; their fortunes are positively correlated. And the reason is that what’s good for Muslims broadly is bad for radical Muslims. If Muslims get less happy with their place in the world, more resentful of their treatment by the West, support for radical Islam will grow, so things will get worse for the West. If, on the other hand, more and more Muslims feel respected by the West and feel they benefit from involvement with it, that will cut support for radical Islam, and Westerners will be more secure from terrorism.
This isn’t an especially arcane piece of logic. The basic idea is that terrorist leaders are the enemy and they thrive on the discontent of Muslims—and if what makes your enemy happy is the discontent of Muslims broadly, then you should favor their contentment. Obviously. Indeed this view has become conventional wisdom: if the West can win the “hearts and minds” of Muslims, it will have “drained the swamp” in which terrorists thrive. In that sense, there is widespread recognition in the West of the non-zero-sum dynamic.
But this recognition hasn’t always led to sympathetic overtures from Westerners toward Muslims. The influential evangelist Franklin Graham declared that Muslims don’t worship the same god as Christians and Jews and that Islam is a “very evil and wicked religion.” That’s no way to treat people you’re in a non-zero-sum relationship with! And Graham is not alone. Lots of evangelical Christians and other Westerners view Muslims with suspicion, and view relations between the West and the Muslim world as a “clash of civilizations.” And many Muslims view the West in similarly win-lose terms.
So what’s going on here? Where’s the part of human nature that was on display in ancient times—the part that senses whether you’re in the same boat as another group of people and, if you are, fosters sympathy for or at least tolerance of them?
It’s in there somewhere, but it’s misfiring. And one big reason is that our mental equipment for dealing with game-theoretical dynamics was designed for a hunter-gatherer environment, not for the modern world. That’s why dealing with current events wisely requires strenuous mental effort—effort that ultimately, as it happens, could bring moral progress.
Some Early Thoughts on Obama’s Speech
I listened live to the president’s Cairo speech this morning on my ride into work. I know that it will be parsed and dissected. Passages will be taken out of context, and sentences twisted beyond recognition. At times, it sounded like a state of the union address, with a litany of promises intended to appeal to particular interest groups.
That said, I thought the president hit the essential points without overpromising. He did not ignore that which divides the United States from the world at large, and many Muslims in particular, nor was he afraid to address squarely the lies and distortions — including the implication that 9/11 never happened, or was not the product of al Qaeda — that have made the situation worse than it should be. He stressed the common interests that should draw people to support U.S. policies rather than oppose them: these include our opposition to the use of violence against innocents; our support for democracy and self-government; and our hostility toward racial, ethnic or religious intolerance. All good.
Two particular comments jumped out at me (the speech text can be found here):
1. The president clearly stated his goals for the U.S. military presence in Iraq. He pledged to “honor our agreement with Iraq’s democratically-elected government to remove combat troops from Iraqi cities by July,” “the removal of our combat brigades by next August,” and “to remove all our troops from Iraq by 2012.”
This might not seem like much. As noted, it is the established policy of the U.S. government and the Iraqi government under the status of forces agreement. Some recent comments by Army Chief of Staff Gen. George Casey, however, implied that U.S. troops might remain in Iraq for a decade. I’m glad that the president cleared up the confusion.
2. President Obama wisely connected U.S. policy in the 21st century to its founding principles from the earliest days to remind his audience — or perhaps to teach them for the very first time — that the United States was not now, nor ever has been, at war with Islam, or with any other religion. George Washington affirmed the importance of religious equality in his letter to the Hebrew Congregation in Newport, Rhode Island. President Obama quoted John Adams, who saw no reason why the United States could not enjoy good relations with Morocco, the first country to recognize the United States. When signing the Treaty of Tripoli, Adams wrote, “The United States has in itself no character of enmity against the laws, religion or tranquility of Muslims.”
But the president also drew on the Founders to convey a broader message. They believed that the new nation should advance human rights and the cause of liberty by its example, not by military force. Some of our recent leaders seem to have forgotten that, and a few pundits have actually scorned the suggestion. The president wisely cast his lot with the earlier generation, quoting Thomas Jefferson who said “I hope that our wisdom will grow with our power, and teach us that the less we use our power the greater it will be.”
It is a good quote. I use it in my book, too.
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