Supreme Court Confronts Free Speech, Animal Cruelty, Gun Rights, Violent Crime, and National Sovereignty Issues

by Hans Bader on October 6, 2009 · 2 comments

in International, Legal, Nanny State, Personal Liberty, Precaution & Risk

The Supreme Court is back in session. Today, it is hearing a challenge to a federal law banning depictions of cruelty to animals brought by a defendant convicted of selling pit-bull dogfight videos. A federal appeals court struck down the 1999 law as a violation of the First Amendment. The government is asking the Supreme Court to reinstate the law, and rule that animal cruelty depictions are not protected speech, the way some other kinds of speech, like obscenity, are considered unprotected by the Supreme Court.  (While the Supreme Court has ruled that obscenity is not protected speech, it has required that obscenity be defined narrowly so as not to reach sexually-oriented speech that either has artistic, literary, or political value, or is not patently offensive.)  At oral argument today, the Justices suggested that the law is overbroad and vague.

The Supreme Court also recently agreed to hear a challenge to Chicago laws banning handguns, in a case called McDonald v. City of Chicago. I explained earlier why the lower court ruling upholding the ban was based on flawed reasoning about how Second Amendment rights apply to state and local governments.

The court will also hear a challenge to the imposition of life sentences without parole on teenage offenders who have repeatedly committed violent crimes (like rape and sexual battery) against victim after victim, but not yet succeeded in killing someone. If the challenge is successful, it may be harder for states to deter violent crimes by minors against children and adults alike. (The death penalty and life sentences are significant deterrents to those who commit violent crimes, reducing the murder rate.  For example, a recent Emory University study says that each execution deters approximately 18 murders.)

The Heritage Foundation explains why life sentences without parole are appropriate, and why it would be a bad idea for judges to make up limits on such sentences.

A gaggle of left-wing lawyers and religious groups are asking the Supreme Court to rule that the Eighth Amendment’s ban on cruel and unusual punishment restricts the imposition of life without parole on juveniles, even when they have repeatedly committed violent crimes. Their long-run goal is to make it as difficult to impose life sentences as it currently is to impose the death penalty, which cannot be carried out without years of endless and expensive appeals, most of which focus on aggravating or mitigating factors, rather than the defendant’s guilt or innocence (even admittedly-guilty death row inmates often succeed in delaying for years, or even overturning, their death sentences).  (Most murderers never even get the death penalty, even when they outrageously torture the dying victim.)

The left-wing lawyers and religious groups are also unjustifiably seeking to use fuzzy notions of “customary international law” to override U.S. law, as the Cato Institute and others have pointed out in their court brief.

“Customary international law” threatens America’s security and civil liberties.  Piracy flourished in the crucial shipping lanes off the coast of Somalia partly due to a treaty that the U.S. has not ratified yet — but which is often described as “customary international law” binding on all nations. Partly as a result of the LOST Treaty, billions of dollars worth of cargo, and human lives, have been lost due to piracy. Harold Koh, appointed by Obama to be the State Department’s chief lawyer, argues that “customary international law” like LOST is binding on the U.S., even when it is reflected in treaties that the U.S. has refused to sign.  (European human-rights conventions and an indecisive White House also have delayed action against the pirates.)  That’s just one reason U.S. policymakers should think twice before following vague “international norms.”

Since customary international law is vague, liberal lawyers invariably use that ambiguity to claim that it dictates a host of controversial requirements that few countries would voluntarily adopt on their own, like banning Mother’s Day as sexist, and mandating quota-based affirmative action. For example, the CEDAW equal-rights treaty has been construed by an international committee as requiring “redistribution of wealth,” “affirmative action,” “gender studies” in academia, government-sponsored “access to rapid and easy abortion,” “comparable worth,” and “the application of quotas and numerical goals and measurable targets aimed at increasing women’s political participation.”

One of the arguments in the animal-cruelty video case — that the government can prohibit an entire category of speech to promote a “compelling interest” — is quite dangerous, because courts now routinely find even trivial government goals to be “compelling interests.” It is almost considered bad manners for a judge to candidly say that a law passed by a legislature is not supported by a compelling interest, which is why judges usually strain to find that the other Supreme Court requirement for upholding a ban on speech (“narrow tailoring”) is missing instead. (In my 2007 law review article, I listed some of the not-very-crucial interests widely recognized by the courts as “compelling,” like “preventing splintered political parties and establishing professional standards.”  Courts sometimes find interests to be “compelling” even when they logically contradict each other — for example, courts have found “compelling” interests justifying both governmental discrimination against gay people, and governmental bans on discrimination against them (even purely private discrimination by religious groups or clubs).  Some court rulings finding “compelling interests” are just wrong.)

The Supreme Court cases challenging life without parole are Graham v. Florida and Sullivan v. Florida. The animal cruelty video case is U.S. v. Stevens.

Hans Bader October 9, 2009 at 11:53 am

Honduras also illustrates how “international consensus” can supplant national sovereignty and a democratic country’s own laws.

Honduras's legislature and courts removed and replaced that country's left-wing ex-president, a follower of Venezuela's anti-American dictator Chavez, in a way that satisfied Honduras’s Constitution, but offended international sensibilities.

Honduras’s Constitution does not require impeachment to remove presidents who seek to change constitutional term limits, but automatically removes them from office under Article 239 of Honduras’s Constitution. And it gives the military, rather than police, an enforcement role under Article 272). So it was perfectly legitimate under Honduran law for Honduran troops to carry out the Honduran Supreme Court’s order to arrest the ex-president. (The ex-president, a power-hungry bully, had sought to rewrite his country’s constitution in violation of court orders, and had repeatedly refused to enforce a host of laws passed by the Congress, as well as spending government funds not authorized by any budget, and threatening citizens and public employees with firings and the cut-off of basic services if they refused to assist his unconstitutional plans.)

But the ex-president’s removal nonetheless offended international sensibilities (by using the military to arrest the ex-president).

International lawyers have said that they are not interested in whether the ex-president's removal was legal under Honduras's domestic law, and are judging its actions based solely on how it looked overseas to have soldiers arrest the ex-president and to have the ex-president removed without more “judicial process.”

(The classic example being the Dutch legal scholar Martin Holterman, who posts on the issue above as the commenter “Martinned,” who argues that he is as uninterested in whether the ex-president’s removal was legal under Honduran law as he is about whether Bush v. Gore was correctly decided).

In backing Honduras's ex-president, demanding that Honduras allow him to return to office, and imposing sanctions on Honduras's people when its supreme court refused to allow the ex-president's return to Office, Obama may have catered to that international "consensus" at the expense of America's interests — and at the expense of the rule of law and democracy in Honduras — while delighting anti-American rulers like Castro and Chavez, who back the ex-president, and also pleasing many socialists in Europe, who seem to prefer socialism without democracy to democracy without socialism (even if, unlike Castro, they would rather have both).

(The exile of the ex-president – as opposed to his arrest upon removal from office – was not authorized by the Honduras Supreme Court, and thus may have been illegal, even though his removal from office was perfectly legal).

Hans Bader October 9, 2009 at 11:56 am

Many legal scholars and foreign policy experts have said that Honduras's removal of its ex-president was legal, including lawyers Dan Miller, Octavio Sanchez, and Miguel Estrada, Stanford's William Ratliff, and former Assistant Secretary of State Kim Holmes.

The Law Library of Congress suggests that his removal from office was legal, although his exile was not.

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