Posted on by Mark Movsesian

Why Armenia Stands Alone

Last week, an aspiring democracy–Armenia–was invaded by an authoritarian neighbor–Azerbaijan. The invasion threatens to reduce Armenia by half and start a new round of ethnic cleansing in the South Caucasus. And yet the West, so eager to defend Ukraine, has mostly turned a blind eye. The reason, I argue today in Compact, lies in a combination of hypocrisy, cynicism, and shortsightedness. Here’s an excerpt:

Yet the initial Western reaction to Azerbaijan’s aggression has been tepid, limited mostly to expressions of concern and calls for calm on both sides. American neoconservatives have generally been disgraceful, mocking Armenian losses and rooting for the Azeri dictatorship, mainly because they see Baku as a useful speartip against Iran and Russia. The Christian right in America, which one might think would feel affinity with the world’s first Christian nation, has remained silent.

Indifference doesn’t quite capture the Western posture. On the contrary, the West has been courting Azerbaijan in recent years, inking new gas deals and supplying millions of dollars in military assistance annually.

The contrast with the Ukraine crisis, another conflict in which an authoritarian state has attacked an aspiring democracy, is jarring. President Biden has described that war as part of an existential struggle “between democracy and autocracy, between liberty and repression”—a grandiose framing shared by the hawkish usual suspects on the American right. The United States alone has committed a staggering $50 billion to Kiev since the Russian invasion, in the name of democracy, self-determination, and international borders. Blue-and-yellow flags fly everywhere. So why ignore Armenia?

The answer lies in a combination of hypocrisy, cynicism, and shortsightedness. The West’s indifference to Armenia reveals once more that its concerns for democracy are highly selective, operative only where the West sees its interests at stake. Here, the West has concluded that its interest lies in appeasing Azerbaijan, which can help supply gas to Europe and check Russia and Iran in the South Caucasus.

You can read the whole article here.

Posted on by Marc O. DeGirolami

Lugato on the International Legal Framework for Hate Speech and Its Limits

This past July, the Center co-hosted a conference in Rome, “Liberalism’s Limits: Religious Exemptions and Hate Speech.” The conference, which addressed the challenges that religious exemptions and hate-speech regulations pose for liberalism, was divided into three workshops, for which participants submitted short reflection papers. Professor Monica Lugato (LUMSA), who co-organized the conference with us, submitted the following paper for Workshop 3, on hate speech, which we are delighted to publish here:

1. Is ‘hate speech’ legitimately to be excluded from the scope of freedom of expression?Or is it protected speech? How does its admissibility or inadmissibility relate to liberalism? My short answer is that the legal regulation of hate speech is not incompatible with liberalism’s basic assumption about the priority of individual rights and the need to shield them from State interferences; provided an agreement on what ‘hate speech’ is; and provided that limitations to freedom of expression remain the exception to the fundamental right to freedom of expression. The international legal framework on freedom of expression provides a useful point of observation on how and to what extent bans on hate speech may be compatible with liberalism. So, first, I will briefly describe its main components, and then discuss its consequences for the debate on hate speech and liberalism.

2. International law protects freedom of expression, while also prohibiting what is currently called ‘hate speech’. Under art. 20, par. 2, of the ICCPR, Contracting States are required to prohibit by law any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. Under art. 4 of ICERD, Contracting States are required to “declare an offence punishable by law all dissemination of ideas based upon racial superiority or hatred,” incitement to racial discrimination and to acts of violence motivated by race, ethnic origin, and color. According to the same provision, they have to do so with due regard to freedom of expression. So, structurally, speech, or more broadly expression, as characterized in each of the two instruments, is not protected by freedom of expression. However, its legal prohibition has to respect the conditions established by international law for the limitation of freedom of expression: legality, necessity in the interests of enunciated public interests, and proportionality (art. 19 ICCPR).

The European Convention on human rights does not contain a specific provision on ‘hate speech’: its art. 10 protects freedom of expression (par. 1), and sets the conditions under which it can legitimately be restricted by the Contracting States (par. 2). The ECtHR has endorsed the ‘hate speech’ terminology in dealing with manifestations of freedom of speech, that, verbal or non verbal, allegedly stir up and justify violence, hatred, or intolerance. It has ruled that Contracting States can restrict such expression, under the criteria established by art. 10, par. 2: again, legality, necessity in the interests of enunciated public interests, and proportionality. In a few cases, it has held that certain allegedly extreme manifestations of freedom of speech are altogether excluded from the scope of the Convention (under its art. 17, prohibition of abuse of rights), as incompatible ratione materiae with it.

3. The monitoring bodies established by the three treaties have clearly recognized that freedom of expression is among the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfillment. They therefore also affirm that prohibited speech is to be construed as an exception to the rule on freedom of speech. For this reason, any limitations to freedom of expression under art. 10 ECHR, or measures adopted by States to implement art. 20, par. 2, ICCPR and/or art. 4 ICERD, have to remain within strictly defined parameters, have to be convincingly established, are subject to restrictive interpretation, and must not “put in jeopardy the core of right itself.” When the restriction does not satisfy those criteria, therefore, the expression, verbal or otherwise, is protected speech under the general rule. However, the practice of the monitoring bodies is hardly consistent with those standards. One may reasonably ask why.

Read more
Posted on by Marc O. DeGirolami

The Terror of “the Rights of Man”

A new book, Robespierre: The Man Who Divides Us the Most (Princeton UP), by the French historian, Marcel Gauchet, looks very interesting in connecting the light side of the revolutionary leader (the ardent and uncompromising crusader for human rights) with the dark features of his zealous commitment in the coming of the Terror. They were two sides of the same coin, in this telling, it seems. Interestingly, the blurb below suggests that it is part of the author’s thesis that the transition occurred at the point where governing, rather than revolutionizing, became necessary.

Maximilien Robespierre (1758–1794) is arguably the most controversial and contradictory figure of the French Revolution, inspiring passionate debate like no other protagonist of those dramatic and violent events. The fervor of those who defend Robespierre the “Incorruptible,” who championed the rights of the people, is met with revulsion by those who condemn him as the bloodthirsty tyrant who sent people to the guillotine. Marcel Gauchet argues that he was both, embodying the glorious achievement of liberty as well as the excesses that culminated in the Terror.

In much the same way that 1789 and 1793 symbolize the two opposing faces of the French Revolution, Robespierre’s contradictions were the contradictions of the revolution itself. Robespierre was its purest incarnation, neither the defender of liberty who fell victim to the corrupting influence of power nor the tyrant who betrayed the principles of the revolution. Gauchet shows how Robespierre’s personal transition from opposition to governance was itself an expression of the tragedy inherent in a revolution whose own prophetic ideals were impossible to implement.

This panoramic book tells the story of how the man most associated with the founding of modern French democracy was also the first tyrant of that democracy, and it offers vital lessons for all democracies about the perpetual danger of tyranny.

Posted on by L&R Forum

Around the Web

Here are some important law-and-religion news stories from around the web:

  • A petition for certiorari was filed with the Supreme Court in Klein v. Oregon Bureau of Labor and Industries. At issue is a finding by the state Bureau of Labor and Industries that Sweetcakes bakery violated the state’s public accommodation law when it refused on religious grounds to design and create a wedding cake for a same-sex wedding. 
  • In Yeshiva University v. YU Pride Alliance, the Supreme Court vacated the stay issued on September 9 by Justice Sotomayor of a New York state trial court’s injunction that required Yeshiva University to officially recognize as a student organization an LGBTQ group, YU Pride Alliance. In a 5-4 vote, the Court directed the University to first seek expedited review and interim relief from New York trial courts. 
  • In Doster v. Kendall, the Sixth Circuit refused to grant an emergency stay of a class-wide injunction issued by an Ohio federal district court in a suit by Air Force and Space Force members who object, on religious grounds, to receiving the COVID vaccine. The district court enjoined the military from taking enforcement measures, while litigation is pending, against service members who have submitted confirmed requests for a religious accommodation from the military’s vaccine mandate. 
  • In Bush v. Fantasia, a Massachusetts federal district court dismissed claims that a COVID mask mandate imposed by a town Board of Health and a public library violated plaintiffs’ free exercise rights. Plaintiffs claimed they “have sincerely held religious beliefs that proscribe [their] wearing face masks and/or submitting to coerced medical devices/products such as face masks.” 
  • The New York Board of Regents approved the Final Substantial Equivalency Regulation, which implements NY Education Law §3204(2), requiring instruction in nonpublic schools to be at least “substantially equivalent” to that in public schools in the same city or district. The Regulation provides multiple pathways for private and religious schools to demonstrate compliance. 
  • Faith leaders–including rabbis, Christian ministers, Buddhists, and Quakers–are challenging newly enacted abortion bans, arguing that the restrictions infringe on their religious beliefs. Plaintiffs contend that the bans are preventing them from exercising their own religious views about when abortions are permissible and have made clergy afraid to counsel their parishioners on abortion for fear of legal penalties.