European Courts Relating to Free

¶ … EUROPEAN COURTS RELATING to FREE SPEECH and DISCUSSING MEIN KAMPF or NEO-NAZI IDEAS or ORGANIZATIONS, COMPARING to U.S. APPROACH and DISCUSSING POLICY IMPLICATIONS

The objective of this work is to discuss cases in European courts relating to free speech and discuss Mein Kampf or neo-Nazi ideas or organizations, comparing to U.S. approach and discussing policy implications. "Mein Kampf" was a work written by Adolf Hitler and is a work, which incidentally was and still in banned for sale in Germany. There is an "ongoing struggle over this 'vile text'" according to Paschal (2001) in the work entitled: "Unbanning Hitler." Paschal states of this work in writing that it would likely "...Certainly, it would offend many survivors if Mein Kampf were to be on open sale in Germany. The question here is less about freedom of speech, more about the living nerve of survivors' sensitivity." (2001)

LITERATURE REVIEW

Freedom of Speech Following World War II

The work of Kisatsky (2005) entitled: "The United States and the European Right 1945-1955" states that Nazi Germany's unconditional surrender "to Allied forces on 7 May 1945 inaugurated a decade-long occupation by German's conquerors. All four victor power - the United States, France, Britain, and the Soviet Union - resolved 'to destroy the National Socialist Party' and to bar 'more-than-nominal' Nazi Party members from public life." (Kisatsky, 2005) Stated top be the most "ambitious of all four occupation regimes in cleansing totalitarian remnants from postwar Germany" were U.S. forces that are stated to have "assiduously examined and punished thousands of ex-Nazis and collaborators, most notably in the high profile Nuremberg trails of 1945-49." (Kisatsky, 2005)

II. Freedom of Speech - the U.S. Approach

Kisatsky (2005) states that these undertaking "reflected an idealistic and sincere desire on the part of American leaders to cultivate democracy on the ashes of a brutal dictatorship" However, it was not very long until the U.S. "an idealistic and sincere desire on the part of American leaders to cultivate democracy. (Kisatsky, 2005) Kisatsky states that Klaus Barbie, Wernher von Braun, and Walter Dornberger, were all employed by the United States Army and incidentally all of these individuals were "wanted for war crimes." (Kisatsky, 2005) Kisatsky asks the questions of precisely what provides an explanation for what is an "apparent contradiction between the spirit and practice of American denazification?" Also asked is the question of "Why did the United States re-empower some servants of Hitler's regime at the same time that it officially punished and discredited others?" (Kisatsky, 2005)

Kisatsky states that the goal stated by the U.S. State Department was "to obtain the type of German nation which...will not again cause the United States to be plunged into war..." (Kisatsky, 2005) to this point in time, the Federal Republic had stood in resistance to both the 'extreme Right' and 'extreme Left' however the likelihood of 'irritating' Germany by the "protracted Allied control..." was described as an "unproductive emotion..." with the potential to "foster 'extreme natiotionalism'. (Kisatsky, 2005)

The recommendation of "Byroade..." As cited in Kisatsky's report came in the form of a warning next followed by the idea that the Western powers should completely hand across the reins to Germans enabling them to guide and direct the control of both "foreign and domestic affairs." (Kisatsky, 2005) This framework was constructed upon the conviction that the only method that the United States could ensure that power was retained by the West and that the global objective's of the major powers identified in this study was the convince the Germans "that they are equals." (Kisatsky, 2005) in fact, it is explained by Kisatsky (2005) that the U.S. effectively transformed the "former Nazi dictatorship into a reliable partner of the West. Denazification and related programs, helped expunge totalitarian practices and promote democratic governance."

Through the integration of Europe with German economics as well as Germany's military, the risk of World War III being started was effectively minimized through the enhancement of "mutual interdependence among the major Continental states." (Kisatsky, 2005) This is important since the goals of the United States were potential at risk to be "undermined by extreme nationalism." (Kisatsky) the U.S. has tended since World War II to have a policy stance that reflects the fear of both left- and right-wing extremism." (Kisatsky, 2005) the U.S. was in a battle with the 'international Left - understood to mean communism and socialism, which is stated to have "affirmed anticapitalist action as a means to social change -- on behalf of the Right, the worldwide agent of stability, which defended property rights and power hierarchies central to capitalism itself. Democratic rhetoric and ideology sometimes complemented this American "search for order," insofar as the free flow of wealth, goods, ideas, and technology apparently advanced "liberal-developmentalism" globally. However, U.S. leaders readily sacrificed lofty ideals to political expediency. This moral pragmatism resulted in American alliances with numerous authoritarian governments that used brutal, antidemocratic means to preserve an economic climate conducive to production and profit." (Kisatsky, 2005)

III. Chief Objective of American Policy & Central Goal of U.S. Power

The chief objective of American policy was not to defend political order, per se. Nor was it to promote anticommunism as an end in itself. The central goal of U.S. power was, quite simply, to perpetuate itself. By maximizing American influence overseas, the United States could enhance and defend its growth-based political economy at home. Where desirable conditions for investment already existed, policymakers worked to preserve continuity in economic and political relations abroad. Where indigenous conditions proved hostile to a U.S. presence, the United States readily engineered coups and other forms of destabilizing change in order to achieve a more hospitable climate. That American officials regularly sought occasion to remake societies abroad into acquiescent clients of the United States suggests that a search for opportunity, not order, drove U.S. foreign policy after World War II." (Kisatsky, 2005)

The Subcommittee on Intelligence Information Sharing and Terrorism Risk Assessment of the Committee on Homeland Security House of Representatives document entitled; "The Homeland Security Implications of Radicalization" (2006) states that 'radicalization' is a problem that is not new and neither is 'violent extremism' new. Radicalization is generally witnessed in male subjects and specifically young American Muslims who "become radicalized overseas" and the individuals in which "radicalization is predominantly homegrown." (Subcommittee on Intelligence Information Sharing and Terrorism Risk, 2006) it is stated that the attempts of Al Qaida to "broaden its appeal to English -speaking Western Muslims by disseminating violent Islamic extremist propaganda via media outlets and the Internet. " (Subcommittee on Intelligence Information Sharing and Terrorism Risk, 2006)

IV. Radicalization: Historically and Presently

It is stated that the 'key' to the success of stopping the spread of radicalization is identifying patterns and trends in the early stages." (Subcommittee on Intelligence Information Sharing and Terrorism Risk, 2006) the Internet is stated to be "a venue for radicalization of young, computer-savvy Westerners, both male and female, who identify with Islamic extremist ideology. An older generation of supporters and sympathizers of violent Islamic extremism, in the post-9/11 environment of increased law enforcement security, have migrated their radicalization, recruitment material, and support activities online." (2006) for those who have taught college classes, worked for a newspaper, and other such pursuits are concerned about 'freedom of speech'. It is related that between freedom and security exists a "balancing act...between civil liberties and the right to be safe or to expect to be safe. We know there are limits on free speech, that fighting words, for example, are not protected, libel is not protected, hate speech is not, or words that could lead to harm, to damage." (Subcommittee on Intelligence Information Sharing and Terrorism Risk, 2006)

V. FBI & Freedom of 'Speech' and 'Expression'

The work of Zechariah Chafee at Harvard Law School is noted and which is a work entitled: "Free Speech." The statement of Chafee that "your freedom to swing your arm ends where someone's nose begins" manages to "capture how we have to address the issue of freedom, of speech, civil liberties and the right to be secure and safe. Van Duyn of the F.B.I. states that the Federal Bureau of Investigation is "very aware of the rights of freedom of religion and also freedom of speech. That is why we focus our efforts on actual connections to terrorist activities and predication that there is activity and intent to harm the United States. However, we are not looking at any particular node or venue in particular. We are looking at the activities that occur there that would be reflective of some type of harm that is to be a plan for the United States." (Subcommittee on Intelligence Information Sharing and Terrorism Risk, 2006)

VI. Comparison of the EU & the U.S. On 'Free Speech'

The work entitled: "The U.S. Supreme Court and the European Court of Human Rights on Freedom of Expression" states that the U.S. Supreme Court and the European Court of Human Rights on Freedom of Expression: A Comparative Perspective on Substantive Law" relates that European human rights laws are emerging only recently and that the ECHR's "applications application of the European Convention on Human Rights helps elucidate the legal protection of the rights of individuals as a whole. It also illustrates how many of the same human rights that the U.S. Supreme Court has interpreted and applied are protected by others in a similar way." (Youm, 2007)

It is noted that Louis Henkin stated of the U.S. constitutional system and international human rights, that each of these continue to influence each other. U.S. constitutional jurisprudence is invoked by international bodies, in particular by the European and the Inter-American human rights courts. U.S. courts are only beginning to look at the growing jurisprudence in the judgments of foreign constitutional courts or of international human rights courts. The texts of the U.S. Constitution and the European Convention on Human Rights are far from the final words on freedom of expression. Various free speech theories influence and shape legal doctrines through judicial interpretations of the First Amendment and Article 10. Case law on the First Amendment and Article 10 thus is essential to find the meaning and scope of freedom of expression. Free speech law of the United States and Europe, as epitomized by the First Amendment and Article 10, respectively, is more evolutionary than revolutionary. The American constitutional law of freedom of expression is 'a common-law story.' Although the principle of stare decisis is not equally established in European human rights law, the ECHR gives great weight to precedents." (Youm, 2007)

Youm relates that "American courts have also developed several substantive standards for freedom of expression" one example is the "...two-level approach -- free vs. unfree speech." (Youm, 2007) Youm states that the case of Chaplinsky v. New Hampshire resulted in the U.S. Supreme Court's articulation of this categorical approach: 'There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words....' Among the types of unprotected speech besides those on the Chaplinsky list are false advertising, incitement to 'imminent' lawless action, and publication of national security information." (Youm, 2007)

Youm states that another way that the Supreme Court "demarcates First amendment protection is the speech vs. action dichotomy...It protects pure speech but allows restriction of expressive conduct, also known as 'symbolic speech' or 'speech-plus,' such as burning draft cards. The hierarchy of freedom of protected speech has been established. For example, political speech is more highly valued than any other expression, and it requires a compelling interest to justify a government regulation. Less protected is commercial speech and sexual expression that is not necessarily obscene. First Amendment standards of these types of speech are met by a substantial governmental interest. The judicial distinction among different kinds of speech restrictions has been a major characteristic of First Amendment jurisprudence. This is true especially where the restrictions relate to the government's methods of content regulation. There is the strongest of presumptions against viewpoint- based content restrictions, and they almost never survive a constitutional scrutiny. By contrast, content- neutral restrictions are more readily accepted by the Supreme Court."

Youm relates that the Supreme Court holds that "prior restraint is highly suspect" and that the Supreme Court held in the case New York Times Co. v. United States, '[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.' But subsequent punishment does not. The judicial distinction between prior restraint and subsequent punishment is derived from the differing impacts of the two on freedom of expression. In balancing freedom of speech with its conflicting societal interests, the Supreme Court applies the 'clear and present danger' test and the incitement test." (Youm, 2007)

Reformulation of the test of 'clear and present danger' is reported liberally in Brandenburg v. Ohio and Youm (2007) relates that the incitement test of Brandenburg "...allows advocacy of the use of force or criminal violation unless it 'is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Freedom of expression is recognized by the European Court of Human Rights', in Category-averse Balancing Article 10 of the European Convention on Human Rights as "foundational to a political democracy. Its inclusive definition of freedom of expression is self-explanatory: '[F]reedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers." (Youm, 2007)

Under the Convention 'freedom of expression' is stated by Youm (2007) to be a broader term than is 'freedom of speech and the press under the First Amendment" in that the conceptual boundaries of the same are "distinguished from freedom of speech." Youm states of 'freedom of expression' that it "clearly embraces the freedom to speak, write, print, and publish, but it also means that purely physical acts can attract the same kind of protection.' Freedom of expression is balanced with its possible abuse. The overwhelming majority of ECHR case law has been concerned with how to define the restrictions on free speech. Thus, the European court is no different from the U.S. Supreme Court in that they both focus their free speech adjudication on the weighing of competing interests." (Youm, 2007)

VII. The European Court of Human Rights - Three -prong Test

Youm relates that in a review of Article 10(2)'s restrictions, "...the ECHR applies he three-prong test:

1) Is the restriction on freedom of expression 'prescribed by law'?

2) Does the restriction have a legitimate aim or aims?

3) Is the restriction 'necessary in a democratic society' for the aim or aims? (Youm, 2007)

Youm states that required first is the design which ensures "fair and even-handed governmental action vis- a-vis the restriction of the rights of citizens," and is a requirement that "...mandates a sufficient legal basis for the restrictive action of the government. Hence, it is similar to the precision principle of the First Amendment. The requisite legitimate objective of the free speech restriction is established if it relates to any of the specific goals stipulated by Article 10(2). This requirement prevents the state from restricting freedom of expression without good motives and justifiable ends. The 'prescribed by law' and 'legitimate aim' requirements of Article 10 jurisprudence are rarely a formidable challenge for the state to meet. But whether the interference with freedom of expression is 'necessary in a democratic society' is less formalistic and more demanding." (Youm, 2007)

Youm additionally relates that the ECHR has developed a test, which is a three-prong test focused on this critical issue and asks the questions of:

1) Did the interference correspond to a 'pressing social need'?

2) Was the interference 'proportionate to the legitimate aim pursued'?

3) Were the reasons presented by the state to justify the interference 'relevant and sufficient'? (Youm, 2007)

Application of this three-prong test is through use of the "principle of proportionality' and is a principle that reflects the "overbreadth doctrine of the free speech law of the United States: the government restriction should not overreach what is justifiably regulated. The margin of appreciation varies from case to case" and this mirrors the ECHR's value judgment on the subject matter." (Youm, 2007) wider margin is allowed in cases that involve speech of a commercial nature and in those, which involve morality however " a narrower margin of appreciation is allowed in relation to political expression. To a certain extent, this parallels the U.S. Supreme Court's giving priorities to political expression over other types of expression.

Eric Barendt, professor at University College London reports that the courts in London "have considered free speech questions for longer than those of any other jurisdiction.' He might have added that American courts have more often addressed a wider range of free speech issues than any others in the world. The volume and variety of U.S. case law on freedom of expression are quite substantial. Indeed, it somewhat defies a one-to-one comparison of the U.S. Supreme Court and the ECHR in their case law. This is true despite the fact that a substantial body of case law has been established by the European court in recent years." (Youm, 2007)

VIII. The U.S. Supreme Court

Established in the late 1919s and the U.S. Supreme Court begin adjuration of free speech cases. In fact, laws relating to free speech in the U.S. "arose from persecution of political dissidence, but such subversive expression is no longer at the center of the Supreme Court's First Amendment docket. Rarely does the U.S. government seek to punish dissident criticism." (Youm, 2007)

Political expression such as Seditious Libel, Hate Speech, and Blasphemy Protected Political speech are stated to hold a place that is higher than any other expression in the hierarchy of the First Amendment and while it is not "...the exclusive objective of the First Amendment on freedom of expression, protection of political speech has defined the free speech jurisprudence of the Supreme Court. 'Whatever differences may exist about interpretations of the First Amendment,' the Supreme Court stated, 'there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs." (Barendt, 2006)

Barendt (2006) relates that the "...preferred position of political speech is illustrated in the Supreme Court's explicit repudiation of seditious libel. The Court in New York Times Co. v. Sullivan 29 held seditious libel incompatible with 'the central meaning of the First Amendment.' This should be no surprise because seditious libel is the 'hall mark of closed societies,' where criticism of government is punished as a crime. The political speech doctrine of the First Amendment applies to, among other types of expressions, hate speech, group libel, and blasphemy." (Barendt, 2006) the Brandenburg incitement test is applied by the U.S. Supreme Court "to hate speech, group libel, and blasphemy unless they constitute 'fighting words' which 'inflict injury to tend to incite an immediate breach of the peace."