The Corner

Re: “Freedom of speech is an American concept, so I don’t give it any value”

Andy, at least Dean Steacy, in denigrating freedom of speech as “an American concept” that he won’t accord any value, has the excuse of being Canadian — and of not being a nominee to a high-level position in President Obama’s foreign-policy apparatus. 

Not so for State Department nominee Harold Koh, who praises a “penetrating essay” by Michael Ignatieff that criticizes (in Koh’s summary) “America’s human-rights narcissism, particularly in its embrace of the First Amendment and its nonembrace of certain rights — such as economic, social, and cultural rights — that are widely accepted throughout the rest of the world.” 

But don’t worry:  Koh proceeds to “distinguish among four somewhat different faces of American exceptionalism . . . in order of ascending opprobrium.”  The first face — the one that Koh finds least opprobrious, is America’s “distinctive rights culture,” which gives “First Amendment protections for speech and religion . . . far greater emphasis and judicial protection in America than in Europe or Asia.”  Fortunately, Koh does “not find this distinctiveness too deeply unsettling to world order” or “fundamentally inconsistent with universal human values.”  So it can be tolerated, at least to some extent and at least under existing “European Union law”:

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.

But, Koh warns in a footnote, “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 “can moderate these conflicts by applying more consistently the transnationalist approach to judicial interpretation” that Koh advocates (and which I’m exploring in an ongoing series of posts on Bench Memos).  Gee, I wonder what that would mean for our pesky First Amendment distinctiveness.

Why has Koh been nominated for a position that would enable him to advance his Europeanist agenda?  Is this the sort of person Americans want as the State Department’s top lawyer?  

(Quotes above are from Koh’s “On American Exceptionalism,” 55 Stan. L. Rev. 1479, 1482-1483 & n. 14 (2003).)

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