Free Speech or Hate Speech?

Can limits be put on free speech? When does free speech stop being a right and becomes harmful to others? After reading many news articles recently about Westboro Baptist Church, I have wondered about the limits that can be put on free speech in the United States. In this case, the issue is protesting at the funerals of fallen soldiers. Some people find this act repulsive; others think that the church is simply exercising their right to free speech as Americans. US Appellate courts have rules on the side of Westboro, stating that protesting at military funerals is acceptable under the first amendment. To add insult to injury, the court even ordered the father of a fallen marine to pay Westboro’s court fees.
The type of protest that is occurring here is shocking. The church claims that “God Hates Fags” and that the war, and resulting deaths, is the fault of sinners in the world. I am wondering where the right to free speech ends and hate speech that hurts others begins? Is there a clearly defined line, or are the definitions blurred? To me, saying that God hates fags or that someone’s son deserved to die is hateful. The courts seem to disagree here. When the right to free speech conflicts with a human’s right to live without persecution, who wins? It seems that it would be easier to rule on the side of free speech, because it is more easily defined, but I think it is important to examine the issue. I don’t think it is right for someone to protest any funeral, but there is a human right to express one’s feelings. Who wins in this situation?

Cultural Laws and Punishments in Muslim Countries

Two recent cases, one taking place in Dubai and the other in Malaysia, have recently drawn the world’s spotlight, highlighting the sometimes extreme laws and punishments in Muslim countries. The first case in Dubai saw a British man and woman jailed for kissing in public. They were sentenced to one month in prison for the offense. The two claim that they only kissed on the cheek, a common European greeting, but their punishment remains. Furthermore, the only person who actually saw them kiss and whose testimony has been used, is a two year old child.

The second case involves a Malaysian woman who was sentenced to caning for drinking a beer. Of course, it is illegal in Muslim countries to consume alcohol, and she was caught by the morality police. The initial sentence of caning caused outrage in the international community, and her punishment was changed to community service. The New York Times Article said Malaysia's Bar Council called caning "anachronistic and inconsistent with a compassionate society". However, Malaysia has punished women in the past with caning for breaking Islamic laws including three women in February who had extra-marital affairs.

Both of these cases involve Islamic law, which is often controversial to the Western world. It is recurrently viewed as extremist and sexually oppressive. It also deprives citizens from freely practicing religion as they please. The court hearings in both of these cases as well, were far from fair and balanced. Especially in Dubai, the woman who reported the couple being indecent in public did not actually see the act herself, but instead used the testimony from her two year old child. And with the caning of Malaysian women for offenses not even illegal in other countries, how cruel and unusual is the punishment? Should a woman be sentenced to a beating for having one beer? What about having sex with a man she is not married to?

Islamic law and the treatment of citizens and prisoners is often where many universalists justify their position on international human rights. These governments violate several key parts of the Declaration of Human Rights. Personally, I think that certain aspects of Islamic law are difficult for cultural relativists to defend. Do any cultural relativists out there agree with the rulings in either the Dubai kissing case or the Malaysian caning case and care to defend the rulings?

If you want to read the full stories, here are the links:
Dubai Kissing Couple: http://news.bbc.co.uk/2/hi/uk_news/8602449.stm
Malaysian Caning Case: http://news.bbc.co.uk/2/hi/asia-pacific/8598190.stm

By Chelsea Thompson

Human Rights and the Environment: Environmental Racism

Are poor people more susceptible to environmental pollution? The Inter-American Commission on Human Rights seems to think so. They are bringing the first case of so-called “environmental racism” to the United State’s courts. Environmental racism means that there are systemic issues that place minorities in areas that are polluted. This pollution can cause major health problems, long-term complications, and even cancer and death.
The case that the Inter-American Commission is litigating involves a city in Louisiana, 200 miles away from New Orleans. “Mossville, a community of about 375 households that traces its roots to the 1790s, is surrounded by 14 industrial facilities and has become a poster child of alleged environmental injustice” (Burdeau). The residents of this area are mostly minorities and from lower socio-economic statuses.
Despite the fact that the Environmental Protection Agency (EPA) has begun testing the levels of toxicity in the area, people are denying the existence of contamination in the area. Some area leaders have even said that allegation of pollution are completely unfounded. Still, the EPA is determining if the site should be designated a “superfund,” which would then allow large amounts of government funds to be put into relocating the residents, cleaning the area, or reducing the levels of pollution emitted by the corporations in Mossville.
If the Inter-American Commission is correct in its findings, then over four million pounds of pollution are emitted into the air from 14 plants in Mossville. This pollution goes into the air, ground, and water. It is virtually impossible for the residents to avoid the pollution. The socio-economic statuses of the residents of the city also make it nearly impossible to move out the area, to get away from the pollution.
Is this a human rights violation? If so, then how can it be stopped?
According to a study done by the Agency for Toxic Substances and Disease Registry in 1999, the amount of toxins in the residents of Mossville’s blood was, on average, three times higher than normal. It seems like this is a human rights violation, because the residents do not have their right to a safe home.
But I do see a problem in this argument. There is obviously difficult to regulate how much pollution a business or businesses release into one area. Stopping these problems may prove very difficult. It is also a human right to have free movement. It can easily be argued that this is a right for situations just like this one. If a human does not like where they live, they have the right to move to another area, where their life can be better.
Here, the question arises, how much does socio-economic status play into human rights? If someone cannot afford to utilize their human rights as they wish, like in this case, does the government have a duty to step in and pay for those rights? If the government does end up paying for these people to be relocated to another area, it can cause many other instances where human rights violations lead to government assistance needs. Maybe this should happen, but only if the human rights violations are strong enough. The problem I see here is in how to decide what the threshold is for determining the strength of the violation. This would be a very difficult and daunting task. Even if a threshold could be agreed on, there would always be people arguing for why it should be raised or lowered. Would the relocation of citizens who have their rights violated lead to a dangerous precedent?
A similar pollution problem exists in Omaha, but with lead pollution. In 1889, ASARCO, a mineral refining company, began operations in Omaha. The company stayed there until 1997, after the United States Supreme Court ruled against ASARCO for their polluting practices, fining them millions of dollars and declaring all of North Omaha a “superfund” site.
Lead pollution can cause many of the same problems associated with the pollution in Mossville. And, like Mossville, Omaha’s lead polluted land is in an area that has a predominant minority population. Omaha now has the task of cleaning the lead out of every yard affected, which involves digging up all the soil and replacing it with fresh, clean dirt. It is then necessary to re-sod the grass. After paying multiple fines, ASARCO has filed for bankruptcy, so they cannot pay for the cleanup efforts, which are moving very slowly. So, it is up to someone else to pay the bill.
Right now, minorities are paying the price, both in Omaha and Mossville. But how can the government efficiently counteract this problem of “environmental racism?” Does environmental racism actually exist, or are these examples exceptions to the rule? If this type of racism does exist, how do we stop it from happening in the future?

Death Penalty Discussion

When discussing the death penalty in class the other day, we listed numerous reasons why the death penalty is ineffective and a violation of human rights. One of the most intriguing to me what the "corruption" or lack of training for lawyers regarding capital offense trials. Professor Kohen remarked that up until very recently, lawyers needed no special training when it came to defending and prosecuting capital offenses. While reading the Omaha World Herald this morning, I stumbled upon this article:

http://www.omaha.com/article/20100404/NEWS0802/704049983#jacob-sullum-a-disappearing-bloodstain

In this article the columnist tells the story of John Thompson, a man who served 18 years in the Louisiana prison system for a crime he did not commit. There were a simple piece of evidence that could clear him of his crimes ( I will let you read the article to find that piece of evidence), however, the prosecution held that information and convicted Thompson of a crime he did not commit. This article shows that the lawyers who were prosecuting Thompson were looking for the easy conviction, especially on a high profile case. They were willing to hide the one piece of evidence that would clear this man, to ensure they got a conviction.
Read the article and let me know: What would you do to reform the legal system? Do you think the prosecutors hid the piece of evidence or simply did not know they had to disclose it to the defense?

West Should Modify Approach to Building Gender Equality, Fighting FGM

As we wrapped up our conversation about female genital mutilation (FGM), we discussed the Seattle compromise and the ways in which the West has been working to do away with FGM practices in the world. It seems virtually impossible – and really would be outrageous – to seek a compelling argument in support of FGM the way it continues to be performed around the world; and I wouldn't attempt that. Where I see the lapse is in the Western universalist mindset applied to the discourse regarding the tactics of handling this problem as one of the battles against female oppression in the "third world."

In an earlier blog post, Alex DeBrie briefly outlined the schism between opposing FGM because of its inexorably violent nature and because it is interpreted as a manifestation of a social and cultural message of male domination. Undoubtedly, genital mutilation per se is appalling to those of us who grew up in the Western world and can quite naturally fathom all of its psychological and physiological ramifications. Also, oppression of women and their freedoms, even subliminal or hidden behind a religious smokescreen, definitely appears not only unfair or unjust to a Westerner but is also a human rights violation. And yet, I will argue, Western attempts to solve the issue of FGM – just like the West's efforts to eradicate burqas, which they see as another manifestation of female inferiority – will continue to be extremely limited until (1) these countries recognize the power of a cultural relativist approach and (2) deal with their own problems of gender disparities.

Let's consider the two cultural practices of FGM and the Muslim head-to-toe-covering garment with a face-veil, burqa. Going beyond the physical implications of FGM, the commonly listed reasons for the procedure all point to the underlying tradition of suppression of female freedom of choice: The process is rarely voluntary, limits sexual life choices and physical abilities, and effectively is meant to make a woman submissive and suited for a man to marry (Dorkenoo and Elsworthy, 13-14). Although quite a bit less intrusive, the burqa worn by Muslim women ultimately seems to the West to send the same fundamental message of female subjugation by forcing women into an outfit that limits physical abilities, immediately establishes status and rids a woman of any visible unique features. Of course, women who wear burqas or take their daughters in for FGM have better reasons to offer, including the fact that both actually empower women by protecting them from the sexual objectification and the materialistic values of the Western culture. According to some, even a hijab (Muslim head scarf) elicits more respectful treatment of women by men, who "did not try to flirt with them or make 'leering' comments, and treating them as 'persons,' not 'sex-objects.'" In the same vein, a Seattle Somali woman juxtaposed her people’s FGM custom that "calms down' girls' sexual desires with the "American disease" of corrupting sexuality that has become a norm (Coleman, 742).

Until Western Europe, Canada and the U.S. can dispel those stabs at the Western culture, they won’t have enough authority to successfully condemn either FGM or "oppressive outfits" as simply wrong or savage. We talked a bit in class about the way the Western world conceives of Africa, which is similar to the common view of the Islamic countries of the Middle East: as dark, unintelligible, uneducated, poor, prone to extremist views and violence; the West, in turn, is an educator, the world of a more enlightened people, who know better. Well, yes, higher education is easier to achieve; science and technology are on a level completely incomparable with that in small African village. But is the West really more enlightened? As far as Africans and Middle Easterners are concerned – especially those who live in the Western countries – morally, it's not at all. Virtually never can women escape the ubiquitous "male gaze" of the Western culture that sets the stage for low self-esteem, body image issues, sexual objectification and materialistic evaluation of one's self-worth. Besides, a growing number of women in the West is choosing to have female genital plastic surgery; and who is one to argue that their reasons (fitting the mold of what a 'normal' person's genitals would look like? being attractive to a male?) are better or more enlightened than those of an African girl undergoing some level of FGM (fitting in with everyone else, being an attractive partner for a male)? Certainly, the issues of voluntary choice and the differing health risks separate the two examples, but if we focus on the underlying message, are the two procedures really that different?

Having considered that, I would argue that a universalist approach to the eradication of FGM – or burqas, for that matter – only adds to the understanding barriers between the West and the Global South. With the Muslim female dress, Belgium keeps moving closer to banning it, while some observers point out the growing bitterness of the Muslims, including women, who say the Westerners have got it all wrong in their (mis)understanding of the issue at question. With FGM, misunderstanding is what Somalis may say leads anti-FGM activists to adopt a principled position that recognizes no possibility of compromise. As The Seattle Compromise shows, anti-FGMers say any version of the traditional practice, even as non-intrusive as a symbolic cutting, legitimizes the general goal of FGM, which is to "disempower women" and in this case to "them out of American mainstream" (Coleman, 747).

What did that position achieve? There are a number of much more severely injured girls than they would have been with a compromise, more bitterness in the relationship with the Somalis, perhaps less respect for the authority of the U.S. in this question. The pressure applied on the African governments by the West to legally criminalize FGM in African countries has yielded uncertain results and possibly hasn’t really decreased the number of mutilation cases in Africa (Dorkenoo and Elsworthy, 12). What is more, in the Western countries themselves, especially in the U.S. and the UK, immigrants have found ways to continue the technically illegal practice (Coleman; Dorkenoo and Elsworthy, 35-36).

Maybe cultural relativism is the better paradigm for building a strategy for FGM eradication. In The Seattle Compromise, what gets me most is the false dichotomy offered by Meserak "Mimi" Ramsey of an international anti-FGM group: "What the Somalis, what the immigrants like me need," she said, "is an education, not sensitivity to culture"(Coleman, 746). To that my question is: Does the choice truly have to lie between one and the other? Isn’t the best education one that is built around sensitive understanding of the culture? Dawit and Mekuria seem to agree: "Superior Western attitudes do not enhance dialogue or equal exchange of ideas," while that cross-cultural dialogue that spurs an internal discourse (An-Na‘im, 39) may be the necessary driving force. As we see outsider pressure clash with traditional habits and deeply-rooted beliefs, the local groups in some regions have successfully developed non-violent alternatives to FGM with those habits and beliefs in mind (Mwaura; Reaves). As An-Naim (27) underscores,

Change is induced by internal adjustments as well as external influences. Both types of change, however, must be justified through culturally approved mechanisms and adapted to preexisting norms and institutions. Otherwise, the culture would lose the coherence and stability that are vital for its socializing and other functions.

The 'alternativists' are also by no means blind to the underlying message of gender disparities, remaining aware of the fact that FGM "does not exist in a vacuum but as a part of the social fabric" (Dawit and Mekuria). So, instead of blanketing the entire symbolism of FGM and any of its alternatives as simply wrong, reproachable and despicable, perhaps instead a more effective way to battle this violent practice and inch toward gender equality in the affected areas would be to build trust by understanding the culture and support alternatives that would, working from the inside, bring about internal changes.

A New Idea: Humanitarian Interventions

A major part of international law studies includes the development of human rights laws. Human rights laws have developed over the past century stemming from the horrible genocide that occurred in World War II. Post World War II and even more so after the end of the cold war there have been more and more so called “humanitarian interventions”. I read a book in my International Law class recently called Humanitarian Intervention by Thomas Weiss and found many parallels with our discussion in International Human Rights. In this blog post, I hope to explain the idea of humanitarian interventions, the main point of Weiss’ book: Responsibility to Protect and how this applies to our class discussion in international human rights.

First, it is important to explain what exactly is meant by the word humanitarian intervention. Weiss defines it as “coercive action by one for more states involving the use of armed force in another state without the consent of its authorities and with the purpose of preventing widespread suffering or death among the inhabitants. (5)” The most important part to notice about this definition would be the italicized part that says without the consent of the state that is being invaded. This goes against the idea of national sovereignty that many states hid behind when they refuse to intervene on humanitarian behalf.

It is also important to note that humanitarian interventions are widely unpopular throughout the world. Many states do not engage in such military missions and prefer to work with the UN peacekeeping troops instead. Weiss believes that this is a result of state self-interest. Citizens of a state do not like to see their troops killed in conflict where the state is getting nothing in return. An example of this would be the 1994 removal of US troops from Somalia after the death of 19 US troops. President Bill Clinton was under enormous pressures to remove the troops from this “barbaric” land because there was nothing to gain from them being there in the minds of the citizens. Those who have studied human rights understand the importance of protecting a failed/failing state. However, normal citizens do not understand that putting a democratic government in place would prevent the backlash we are facing now from Somalia.

The main argument from Weiss’ book is called Responsibility to Protect or R2P for short. The idea of R2P is that a sovereign nation has the responsibility to protect its citizens from internal conflict, threats against humanity, etc. If a sovereign state cannot protect its citizens the international community has the responsibility to intervene and protect the citizens of the world. Another important part of R2P is “that the essential element of R2P is the international responsibility to act with or without the approval of the host country. (Weiss 56)” I believe that R2P was fall under a Universalist’s point of view concerning human rights because Weiss argues that R2P covers all peoples.

I think that the idea of R2P is fantastic. As a person who believes that there should be some sort of guideline for basic human rights, I think R2P is a good way to ensure those rights. With R2P however, there needs to be rules of when it can be used and when it cannot be used. Weiss gives an example of when R2P was misused. “Is humanitarian intervention a convenient slight of hand to conceal hidden- and in the case of Iraq, not so hidden- Western agendas? (128)” President George W Bush first indicated that he planned on invading Iraq to protect the United States in pre-emptive self defense. When UN taskforces determined there were no weapons of mass destruction in Iraq, the Bush administration fell back on R2P for the Iraqi people. While I do agree that R2P can be misused, that is why there should be certain criteria that have to be met before one can use R2P as a basis for use of force.

For me, I believe that the idea of R2P fits into our class discussions very nicely. Throughout our class discussions, I felt that there needs to be some sort of universal standards everyone is entitled to simply because they are human. As someone who is not a theorist, I can say while it is interesting to think about where our human rights came from, I am more interested in how we protect them in our current world climate. I do believe that there are certain instances in which military intervention is necessary to save those who can not save themselves. It is foolish to think that we can intervene in every situation; however, the R2P principle lays good groundwork for that idea. R2P to me means that every state around the world should be responsible for the well being and basic maintenance of it’s citizens. If they cannot meet those standards, we as citizens of the world have a responsibility to protect those in need.

Overall, Weiss’ book is a very interesting one. I highly recommend it for anyone who wants to understand the legal ramifications of undertaking humanitarian interventions. This blog post just scratches the surface of what Weiss has to offer in his book regarding human rights. It is a fast read and one necessary for those who question the use of force in humanitarian situations.

My question for the class would be: Do you think the Responsibility to Protect principle is a valid one? Does it matter at this point in time where human rights come from or should we simply fight abuses as they happen?

Marking off the area of Debate on the Death Penalty

    In class today, we had an enlightening discussion on reasons the death penalty is problematic. Innocence, cost, lack of deterrence and the arbitrary application of the ultimate punishment were among the most salient reasons to oppose the death penalty. For this post, I would like to further examine some of these reasons, coming to the conclusion that some of these problems constitute problems with the death penalty as it is currently utilized. In effect, I will argue that the death penalty is presently used in a manner that is difficult to reconcile with any notion of rights and justice. Finally, I will look at the death penalty when used in a more limited manner, finding that though I disagree with the use of the death penalty, there is more room for reasonable disagreement than in the broader practice as exists today.

    The death penalty in current practice has a number of problems. As shown in Actual Innocence, many individuals on death row are not guilty of the crime they were accused of. These breakdowns in the criminal justice system arise for a number of reasons, be it racism, pressure on prosecutors, judges, and governors, inept public defenders, or other circumstances. Fortunately, as noted in class, the United States does not know of any time in which an innocent person has been executed in the modern era. Unfortunately, an unwillingness to uncover innocence of already executed individuals may be the reason, and while one could imagine that we have not executed any innocents, there is at least a decent probability that we have. Whether for humanitarian or simply self-interested reasons (for one certainly wouldn't want to run the risk of being executed for a crime he didn't commit), this presents obvious problems.

    Another issue arises with the arbitrary application of the death penalty. Minorities and the poor are considerably more likely to be executed for their crimes. Since 1976, 35% of the executions have been carried out on African-Americans; a number nearly three times their representation in American society in 2008 (12%). Furthermore, African-Americans constitute 41.6% of the current death row population, a number barely lower than the Caucasian population (44.4%). In addition to race, access to resources plays an important role. Many of those condemned to death are using public defenders that are overworked and underpaid. The reality is that an individual who can afford good legal counsel has a minimal to non-existent chance of landing on death row. These factors combine to ensure that the only people being executed are the poor, a disproportionate number of them black.

    Finally, some will argue that the death penalty is used in a cruel or inhumane way, violating the 8^th Amendment prohibition against such punishments. This argument tries to violate certain methods of the death penalty, such as execution by hanging, electrocution, or other methods (there are others who contend that any method of execution is cruel and unusual, thus violating the Constitution. This will be addressed later.). Keeping the 8^th Amendment in mind, death penalty advocates should at least be cautious to enact a procedure that does not result in cruel or unusual punishment.

    In reviewing the noted problems with the death penalty, it is apparent that it currently has some problems as it is currently practiced. Yet is this a refutation of the entire practice? Certainly we should work to avoid executing the innocent or killing criminals in a cruel manner. And most who took an honest look at the facts would be forced to conclude that the death penalty discriminates against minorities and the poor. However, none of these make the death penalty off-limits in all cases, unless one is willing to argue that any statutory enactment of the death penalty will necessarily result in some of these problems, an argument that would be a discourse on man and society more than on the death penalty itself. I am arguing that these aforementioned problems mean that, at the very least, we should be careful with our use of the death penalty. We should designate the wiggle room within the debate. The death penalty cannot be defended unless it is carefully enacted to avoid ensnaring the innocent or discriminating on the basis of race. Additionally, we should work to provide better representation to those accused of a capital crime. These constraints, and perhaps others that I did not address, must be included in any morally defensible use of the death penalty.

    How much further beyond this limit can we go? Can we ban the death penalty outright? Can we use it freely beyond this point? Imagine a scenario in which an individual is clearly guilty of murder of a particularly heinous sort. One could use Scott Roeder, who shotgunned George Tiller, an abortion provider, in a church full of people. Or, one could use Timothy McVeigh, who detonated a bomb and killed 168 innocent civilians. I believe this is the point where reasonable people can diverge into different opinions on the death penalty. Each individual will have to weigh the relative costs and benefits of the death penalty before coming to a decision. In this section, I would like to refute two arguments for outright bans on the death penalty, as well as the main reasons that factored into my calculus for rejecting the use of the death penalty.

    It has been argued on our class blog that the death penalty violates our right to life, one of our fundamental rights to life, liberty and the pursuit of happiness as declared in our Constitution. By declaring the state able to execute an individual convicted of a capital crime, one is saying that the right to life in conditional on other actions rather than inalienable. However, as I responded, I think all of our rights are conditional on us obeying the laws of society. By comparison, the entire notion of restorative justice would be in jeopardy if we said one could not imprison or fine a criminal due to his fundamental right to liberty. These rights are retained and protected as part of a contract, and the penalty for breaking this contract may be the forfeiture of your fundamental rights.

    A second Constitutional criticism comes from those, like Justices Brennan and Marshall in Furman v. Georgia, who argue that any enactment of the death penalty constitutes cruel and unusual punishment and thus is incompatible with the 8^th Amendment. Yet this criticism seems to run afoul different portions of the Bill of Rights, specifically the Due Process Clause of the 5^th Amendment. The clause states that no person "shall be deprived of life, liberty, or property, without due process of law." This implies that a person may be deprived of life so long as there is due process of law. One should keep in mind that the 5^th and 8^th Amendments were enacted at the same time, so it is unlikely that the 8^th was meant to refute certain portions of the 5^th. Of course, one could get into the debate of the dead vs. the living Constitution, but it is clear that at least as the Founders intended, the death penalty is not unconstitutional on its face.

    In contrast to the blunt instruments used by Constitutional arguments against the death penalty, I would like to put forth the proposal that we do away with the death penalty because it is not particularly useful. Two of the major arguments for the death penalty, cost and deterrence, are at best inconclusive and at worst not true. In effect, we're left with a system that costs more than life imprisonment and may or may not have a deterrent effect, while also dealing with all of the practical problems that we've teased out of this theoretical exercise. Additionally, there are significant moral issues involved with state-sanctioned killing, and, in the absence of true benefits, the math does not add up for me. For this reason, I will not advocate for the death penalty, and I hope it dies out through normal democratic means.

    In sum, I hope I've helped to get you to think deeply about the death penalty. I think we need to strip out some of the auxiliary problems noted at the beginning before getting to the heart of the matter and making a decision. It is important to discover what issues surrounding the death penalty are indefensible on any grounds before each individual makes up his or her mind regarding the death penalty and the truly guilty.

 

One thing to think about:

If the death penalty was abolished and we saw a large spike in violent crime that most experts conceded was due to the lack of the death penalty as an effective deterrent, would this change your mind? Would you fight to get it reinstated? Note: this assumes that the evidence on deterrence becomes clear-cut and accepted by both sides. Admittedly, this is highly unlikely.