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Harold Koh and the First Amendment
The State Department lawyer has a less-than-robust commitment to free speech.

State Department lawyer Harold Koh

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Betsy Woodruff

And that new interpretation would probably condone the questioning of filmmakers who offend the religious feelings of others.

“Certainly there’s a clear connection between Koh’s desire to use international law as a vehicle for limiting the First Amendment rights of Americans and this recent action,” says Ed Whelan, president of the Ethics and Public Policy Center, referring to Nakoula’s questioning. He added that it’s hard to say whether Koh has influenced the State Department’s transnationalist bent or just fit nicely into its preexisting milieu.

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Either way, “Harold Koh is not an aberration,” Whelan tells National Review Online. “His views are very commonplace on the left, in part because he’s a leader and in part because that’s the environment that he swims in. I don’t see it as surprising that a State Department that would have him as a legal adviser is not interested in a robust protection of First Amendment rights.”

Groves characterizes Koh’s positions as “Yes, yes, yes, we believe in free speech, but if you insult someone because of their race or their religion or because of their gender, we’re going to criminalize that and you can be fined and imprisoned for it.”

We’re not Europe yet, but that’s where Koh and his like-minded colleagues want to take us. “It’s certainly an agenda on the part of Koh and others to get there,” Whelan says. “Whether that will succeed depends on a lot of things, including this coming election.”

— Betsy Woodruff is a William F. Buckley Fellow at the National Review Institute.



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