I had the pleasure this month of writing a piece on free speech in the leading policy magazine in Switzerland, “Schweizer Monat.” The piece is published in German (Charlies falsche Freunde or Charlie’s False Friends), which is particularly cool for my son Benjamin who is taking German at McLean High School in Virginia. The German version can be found here. Germany is currently our fifth highest supplier of readers with Switzerland close behind. Ironically, Harvard Professor Cass Sunstein also wrote a piece in the same issue this month. The translated column is below:
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Posted in Academics, Columns, Constitutional Law, Courts, Criminal law, Free Speech, International, Media, Politics, Religion, Society, tagged Charlie Hebdo, Francois Hollande, Free Speech, Je suis Charlie, President Hollande on 1, February 6, 2015 | 25 Comments »
Below is my column in the Sunday Washington Post on the free speech implications of the massacre in Paris and what it means to “stand with Charlie.” Rather the piece explores the status of free speech in France and The murders themselves are clearly the work of Islamic extremists who need little reason to kill innocent people in their twisted view of faith. However, the victims were journalists who had struggled with rising speech limitations and regulations in France as well as other European nations. (Indeed, at least one surviving journalist express contempt for those who now support free speech but remained silent in the face of past efforts to shut down the magazine). We have previously discussed the alarming rollback on free speech rights in the West, particularly in France (here and here and here and here and here and here) and England ( here and here and here and here and here and here and here and here and here and here). Much of this trend is tied to the expansion of hate speech and non-discrimination laws. We have seen comedians targets with such court orders under this expanding and worrisome trend. (here and here).
As many on this blog know, I have a particular affection for France and its people. I was moved to see the protest spontaneously protest as thousands can out to defend liberty and French culture. It was a quintessential moment for the French. Indeed, it reminded many of us of how the French once voiced the “Rights of Man” and rallied around civil liberties at a defining moment for all of Western Civilization. We all felt victims of these attacks and most of us were moved to see our French counterparts joining together in one voice to support free speech. However, there needs to be some frank discussion of threat posed by increasing speech regulations and prosecutions. Ironically, while thousands have demonstrated against immigration as a threat to national identity, the real threat is not the immigrants themselves but the loss of national identity from these prosecutions. What is France if it is not its liberties and freedoms? France cannot simply be defined by brie and baguettes. Those who want to join Western countries must accept their core commitment to free speech as part of a social convenant not just with the government but with each other.
(The title of the piece is selected by the Post, not the author. (We usually learn of the titles when the reader does). The print version includes a title that the “threat” comes not terrorism but the French. Many may conclude that the piece somehow blames the French for these attacks which is obviously not true. Rather, with the rallies (including the huge rally today) in support of free speech, the column explores the primary cause of the erosion of free speech in France — and what can be done to restore it. Likewise, this article is not meant to suggest that any criticism of religion is no longer tolerated in France. After all, the magazine continued to publish despite efforts to prosecute the editors and journalists. Moreover, French courts have ruled in favor of free speech in some critical cases. However, while some efforts have been curtailed by the French courts, government censorship has been increasing, particularly when the challenged speech is directed at living individuals. Other restrictions are broader and the appetite for such regulation appears to be increasing. For example, a few years ago, when the government made the denial of the genocide of Armenians by Turkey a crime, the drafter of the law Senator Valerie Boyer dismissed the objections and said “That’s democracy.” Indeed, Boyer exemplified why John Adams warned that “ democracy never lasts long. It soon wastes, exhausts, and murders itself. There is never a democracy that did not commit suicide.” The clash between democracy and free speech is growing as different groups demand that others be silenced in the name of pluralism and tolerance.
Here is the column:
Below is my column on the resignation of Eric Holder as United States Attorney General. For civil libertarians, Holder’s tenure as Attorney General under President Obama has been one of the most damaging periods in our history with a comprehensive attack on various constitutional rights and principles from free speech to the free press to international law. In recent polling by NBC and the Wall Street Journal, Holder was the second most unpopular government official after the positively radioactive Arizona Sheriff Joe Arpaio.
As someone who previously called for Holder’s firing after the investigation of various journalists under national security powers, I am hardly one who can offer congratulatory sentiments for such a record. However, much like President Obama, one has to wonder what could have been if Holder had chosen a more principled and less political approach to his office. Holder is resigning the same week that a federal judge ordered the release of “Fast and Furious” documents after the Justice Department was accused of a pattern of delay and obstruction. Holder was previously held in contempt by Congress for his withholding documents and conflicting accounts to an oversight committee looking into the scandal. Indeed, Holder was looking at an even more aggressive period with the possible loss of the Senate and increased GOP seats in the House.
Ironically, Holder came into office trying to distinguish himself from such disastrous predecessors as Alberto Gonzales but proved no less political or blindly loyal to his own president. Indeed, both men fought aggressively to expand the powers of the presidency and national security laws over countervailing individual rights and separation of powers principles. It will be civil liberties and not civil rights that will be the lasting, and troubling, legacy of Eric Holder. The column is below:
Below is my column today on the Perry indictment. I have previously raised my serious reservations about the factual and legal basis for a criminal charge. We obviously do not know what evidence will be presented, particularly evidence of back channel communications that might have occurred over the threatened veto. Such conversations can have a highly damaging effect on jurors as shown by the trial of Illinois Democratic Gov. Rod Blagojevich. They can also damage someone politically by exposing uninhibited moments or comments. I have heard from reporters in Texas that there might have been communications between Perry and Lehmberg about her resigning but I have yet to see clear accounts of such communications. However, at the moment, I cannot see the basis for these charges. Perry publicly stated his intent to use his lawful power to veto the line item for the office budget if Lehmberg did not resign. I do not see how the use of such a lawful power in this case would rise to the level of a criminal act.
At the moment, I see a compelling case for dismissal as a threshold legal question for the court. However, the degree to which the court views this matter as turning on the factual allegations as opposed to the legal questions, it could be held over for trial. That is the problem with such ambiguously written provisions is that the court may feel more constrained in dismissing the counts. The result for Perry can be damaging even if he is acquitted as was former U.S. Senator Kay Bailey Hutchison two decades ago. Hutchinson was charged with using state employees to plan her Christmas vacation in Colorado and write thank-you notes. The case was so weak that it took only 30 minutes for the jury to find her not guilty on all charges. The political danger is the exposure of private communications. Few of us are as crude as Blagojevich or his wife even in private but none of us is likely to look good if our unguarded comments were played out for a national audience. Once again, only time will tell what type of evidence was heard by the grand jury. Yet, my view is that this indictment is very problematic from a constitutional standpoint and offers little to support such a major prosecution.
Here is the column:
This month, Washington seems caught in some strange time loop. The President allegedly fighting off an attempt to remove him while Members of Congress are denouncing his “Imperial Presidency” and contempt for constitutional law. It must be enough to give Bob Woodword and Carl Bernstein vertigo.
As one of the legal experts who testified during the Clinton Impeachment and lead defense counsel in the last judicial impeachment trial in the Senate, I have been struck by the replication of a number of misconceptions surrounding impeachment. That led to Sunday’s column on certain myths regarding impeachment. According to a CNN/ORC poll last week, some 33 percent of Americans think the president should be impeached. Over a majority now disapprove of his conduct in office according to other polls. However, that is not enough for impeachment. As many of you know, I am highly troubled about the actions taken by President Obama in violation of the Separation of Powers. I testified (here and here and here) and wrote a column on President Obama’s increasing circumvention of Congress in negating or suspending U.S. laws. I ran another column recently listing such incidents of executive over-reach. Some like the violations of the power of the purse in the shifting of hundreds of millions of dollars raise extremely serious challenges to our system. However, I do not believe that these violations have yet reached the point of impeachable offenses. Ideally, a federal court will review some of these violations and show that the system can work in the maintenance of the lines of separation though the Administration is clearly going to fight hard to block any review of the merits by any federal court. That is where such matters should, in my view, be heard and resolved. In the meantime, the President’s threat to continue to act unilaterally is playing a dangerous game of chicken in our system and, if he goes too far in an act defying clear congressional or judicial authority, he could cross over from interpretive disagreements into impeachable offenses. Yet, the current array of conflicts have divided lower judges on the merits. Such interpretive disagreements are not the thing that impeachments are made off. Having said that, one should not take the lack of impeachable offenses to take away from what some of us view as very serious violations by this President — a usurpation of authority that all citizens should denounce in the interests of our constitutional system. (more…)