Muslim Legal Defense Fund files complaint against Dershowitz

[Volokh, Eugene]

    1)  Bryan Wildenthal has cogently explained why an American government
agency may not punish Americans for their speech abroad (assuming that the
speech doesn't fit within the standard exceptions).  I should just add that
the few courts that have considered the matter have to my knowledge all
agreed with Bryan's position, even in situations where they are simply asked
to enforce a foreign judgment based on speech overseas.  See Matusevitch v.
Telnikoff, 877 F Supp 1 (DDC 1995), aff'd on other grounds by the DC Cir;
Bachchan v. India Abroad Pubs., 585 N.Y.S.2d 661 (Sup. Ct. 1992); Abdullah
v. Sheridan Square Press, 1994 WL 419847 (SDNY).

    2)  Of course the First Amendment does protect "incitement," unless the
speech is intended to and is likely to cause imminent unlawful action.  I
can't imagine that Dershowitz's op-ed, either in a New York paper or an
Israeli paper, is likely to cause any action (op-eds by lawprofs aren't that
effective!), and certainly not *imminent* unlawful action.  Cf., e.g., Hess
v. Indiana, showing the limits of this very narrow category.  Say that Prof.
Martin wrote an op-ed in the Boston Globe urging that Dershowitz be
disbarred, and a court later found that such disbarment would be
unconstitutional (violative of the First Amendment) and therefore unlawful.
Would Prof. Martin be potentially punishable for "inciting" a violation of
the First Amendment?  Certainly not.  Likewise with Prof. Dershowitz.

    3)  I too share Prof. Martin's desire to prevent atrocities; and yet
consider what we're discussing in this very case:  Prof. Martin is taking
the view that under international law -- which I believe he would much like
to see adopted as the domestic law of the U.S. -- Alan Dershowitz could be
*criminally punished* for dissenting from what Prof. Martin sees as the
international law consensus.  As I've mentioned before, the proper role of
collective punishment and torture as tools to prevent mass murder, and as
tools to fight the gravest of threats to a nation, is a complex and
unresolved question.  The issue is:  Are citizens of democracies going to
debate this question freely (in a debate that, if freely conducted, might
lead some people to be persuaded, rather than just legally bludgeoned into
submission)?  Or will one side be gagged not just with the risk of loss of
livelihood, but of prison time for expressing a view on what a government
ought to do?

    Eugene

Francisco Martin writes:

I am not even sure if the First Amendment would protect such speech.  Does
the First Amendment extend extraterritorial  protections (such as
Dershowitz's publication in the Jerusalem Post)?  Does the First Amendment
protect incitement offenses?  Does the First Amendment allow the restriction
of speech in territories inflamed by armed conflict and racial/religious
hatred? Should it?

Prof. Volokh continues:  "Whether and when collective punishment (or for
that matter torture) are permissible responses to repeated mass murder, and
to other grave national security threats, is an important and difficult
question.  The moral, legal, and pragmatic arguments on both sides of this
question deserve to be publicly debated -- not suppressed through the threat
of criminal punishment.But, some may ask, isn't it good that people are
trying to prohibit, say, the incitement of outright genocide, in the
traditional sense of mass murder?  Well, it seems to me that Prof. Martin's
theory shows the weakness in that scheme:  These speech restrictions may be
sold as being focused on the most extreme! , appalling speech that most of
us would likely to find some way of punishing -- but they then end up being
applied to a much wider range of speech, including much that needs to be
aired.  That's what we saw with attempts to suppress Communism in the 1950s,
campus speech codes in the 1980s and 1990s, and European "hate speech"
restrictions; that's what we seem to be seeing here as well."

Although I am sympathetic to the slippery slope argument, I believe that the
reason why incitement is recognized as an offense under the international
law governing crimes against humanity and genocide (and not other
international crimes) is because such incitement is often the cause of such
crimes being committed and because such crimes are by definition (in the
case of crimes against humanity) widespread or systemic atrocities, or most
often cause widespread or systemic atrocities. Accordingly, international
law draws the line at the very top of this slippery slope where genocide and
crimes against humanity are.  Hopefully, the line is high enough on this
slope to act as a sufficient barrier for overcoming any momentum towards
greater limitation on the freedom of expression.  Whether it is, we can
discuss off-list.

Perhaps we can (and do) debate such subjects from a safe distance that
allows us and others not to suffer the very real and harmful repercussions
of our opinions.  However, in places where people are using guns and bombs
to solve their differences, urging one group to commit crimes upon the other
does not promote public debate so essential for the proper functioning of
democracies and other good things.  It just promotes further death that, in
turn, obviously prevents people from exercising their freedom of expression
and other fundamental rights.

Francisco Forrest Martin

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