Liberté, égalité, censure… and the First Amendment?

Last week Reuters “news” service reported about the pending request by Yahoo! for a what appears to be a declaratory judgment (I have not seen the papers) barring domestic (U.S.) enforcement of a French court’s order forbidding the sale of Nazi paraphernalia. Enforcement would entail not only a big constitutional problem in the U.S. but massive potential damages.

After the original French decision came down, I told an interviewer in November, 2001, “”It’s not surprising, because you have here a classic conflict between national legal principles. In the U.S. system, the First Amendment is guarded jealously by the vast majority of American judges. There is virtually no way an American judge could enforce a French ruling [banning Nazi paraphernalia] … just as a French judge would not extradite a suspect to the U.S. who faced the death penalty because it is fundamental to French concepts of justice in 2001 that the death penalty is immoral.”

I still think this is true, though it’s not 2001 any more, and a number of things that no one ever dreamed would happen in the law, have happened. One of them is that the U.S. Supreme Court upheld the patently unconstitutional McCain-Feingold law. Secondly, the Supreme Court — theme for the week, I know — has more than once endorsed the controversial principle that the decisions of foreign courts may be considered in ruling on cases previoiusly thought to be subject only to the U.S. precedent, statutes and the U.S. Constitution. That Justice O’Connor would introduce a formula such as, “‘The impressions we create in this world are important” as a factor entitled to any weight whatsoever in constitutional jurisprudence is particularly distressing. Not only is “impressions” in the “world” not a constitutional principle, nor a democratic one, but the statement itself is not even necessarily true as an empirical matter.

So I still like my 2001 prediction, but unlike when I made it, right now it would be a breath of welcome fresh air. And it’s not because I like Nazis.

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Ron Coleman

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