The American Spectator

Is America in an entirely different place? One reason for worry is that we have not yet seen Muslim advocacy groups mobilizing on behalf of official speech restraints in American localities or even on university campuses. Ezra Levant, publisher of the Western Standard (which has now ceased print publication), warns that Canada is “more like Europe” in many ways, including its experience with Islamist political campaigns, but Canada is often an “experimental lab for a lot of bad ideas that are then imported into the States.” We have seen this before. Speech codes sprang up on college campuses across the United States in the 1990s, as liberal opinion (including in much of the legal academy) embraced the notion that minorities and women needed to be protected from “hostile environments.” Meanwhile, the federal civil rights agencies insisted that institutions might be charged with “discrimination” if they did not prevent minorities and women from feeling “harassed” by hostile comment—even when such comment was not directed at any individual person.

Courts did put some limits on campus speech codes at public universities. The Rehnquist Court tried to apply brakes to the more outlandish versions of “sexual harassment” claims based on “hostile environment.” But the Court always sidestepped the question of whether the First Amendment really allows government to demand that corporate managers and school officials suppress free speech just because it offends some employees or students. It is not, in fact, a large leap from the ideology of the sexual harassment cases of the 1990s to the sorts of claims Islamists have been pursuing in Europe. But perhaps the most worrisome concern is that a lot of American legal commentators, and now a narrow majority of Supreme Court justices, hold that the meaning of our own Constitution should evolve in some response to trends in “the world community.”

Over the past six years, the Court has cited international conventions the U.S. did not ratify, admonitions of UN and European human rights bodies, and rulings of foreign courts (including the European Human Rights Court) in support of changed interpretations of the U.S. Constitution on a number of disputed social issues. A number of serious scholars have interpreted the Court’s most recent rulings on the rights of Guantanamo detainees as a nod to “international” opinion. Harvard Law professor Noah Feldman recently urged, in the pages of the New York Times, that courts have an obligation to convert the Constitution into an “outward looking document” by assuming responsibility for judicial foreign policy.

To defend free speech in America, we may find it more and more important to insist that we have the right—and under our inherited Constitution, the duty—to hold to our own ideas about what we can be allowed to say among ourselves.