FREEDOM OF SPEECH AND FREEDOM OF EXPRESSION - WHERE ARE THE BOUNDARIES? Текст научной статьи по специальности «Философия, этика, религиоведение»

Сравнительное правоведение / Comparative Law

Научная статья УДК 1.12.122/129

DOI: 10.37399/2686-9241.2021.4.68-93

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Freedom of Speech and Freedom of Expression - Where are the Boundaries?

Charles Goddard

Kutafin Moscow State University of Law, Moscow, Russian Federation For correspondence: [email protected]; [email protected]

Introduction. We are all too aware of people freely expressing their opinions, often via social media, on other media channels, and in public. Often such opinions are unpalatable to others, and when challenged, the speaker defaults to well-worn phrases along the lines of "but I have the right to free speech" or "I can say what I want, I have the freedom of expression". However, these are not absolute rights without limit, and the purveyors of such opinions publicly expressed would be well advised to consider the legal boundaries to so called "free speech". Notwithstanding this advice, however sound, there remains the practical problem of where exactly those boundaries lie.

Theoretical Basis. Methods. The research was based upon comparative and analytical methods of law in the European and American jurisdictions.

Results. An advocate appearing before a Court, arguing either for a party who claims this right has been infringed, or for a state party attempting to justify why there should be a restriction on their ability to speak their mind - has to be able to grapple with where the boundary is and how it should be defined. That "it depends" as to where this boundary is almost goes without saying -dependent for example upon the internal laws of a given State. Yet such laws can be in conflict with wider principles adopted by that State.

The ability to explore the boundaries of a rule or law - and not simply know the wording of the law or rule - and to be able to present persuasive arguments to a decision maker or a decisionmaking panel is a key skill for an advocate. Our students need to acquire this, and its absence may be easily discerned by asking what they think about a particular matter - and noting whether the opinions are backed up with reasons or whether they are simply personal subjective views with no rationale.

Discussion and Conclusion. As regards Freedom of Expression, two main cases are currently used to teach this skill amongst students undergoing preparation for participation in English language moot court competitions. One is from a European perspective and the second from a comparative law perspective from the USA. These cases (and the principles involved) are discussed in this article. A third European case shows how the European Court might have itself made a mistake. In conclusion there are remarks about how this might be useful in a context that is rather wider than student education.

Keywords: freedom of expression, freedom to receive information, freedom to impart information, duties and responsibilities, interference by public authority, licensing of broadcasting, safeguards against abuse in a democratic society, national security, territorial integrity, public safety, prevention of disorder, prevention of crime, protection of health, protection of morals, protection of the rights of others, authority and impartiality of the judiciary

For citation: Goddard, Ch., 2021. Freedom of Speech and Freedom of Expression - where are the boundaries? Pravosudie/Justice, 3(4), pp. 68-93. DOI: 10.37399/2686-9241.2021.4.68-93.

Abstract

© Goddard Ch., 2021

Свобода слова и свобода самовыражения -где же границы?

Ч.Годдард

Московский государственный юридический университет имени О. Е. Кутафина, Москва, Российская Федерация [email protected]; [email protected]

Аннотация

Введение. Мы все хорошо знаем, что люди свободно выражают свое мнение через социальные сети, по каналам СМИ. Содержащаяся в таких выступлениях информация может вызывать споры. Тогда тот, кому высказали претензии, заявляет: «У меня есть право на свободу слова» или «Я могу говорить, что хочу, у меня есть свобода выражения». Тем не менее это не абсолютные права без ограничений, и все, кто публично высказывает какие-либо мнения, должны знать о существовании юридических границ так называемой «свободы слова». Остается практическая проблема: где именно лежат эти границы? Теоретические основы. Методы. Исследование основывалось на сравнительных и аналитических методах права в европейской и американской юрисдикциях. Результаты исследования. Адвокат, выступающий в суде на стороне, которая утверждает, что это право было нарушено, либо за государство-участника, пытающееся обосновать, почему должно быть ограничение способности выражать свое мнение, должен уметь установить, где граница и как она должна быть определена. То, что «это зависит» от того, где проходит эта граница, почти само собой разумеется, например, зависит от внутренних законов данного государства. Однако такие законы могут противоречить более широким и общим принципам, принятым этим государством.

Способность исследовать границы нормы или закона, а не просто знать формулировку закона или правила, и иметь возможность представить убедительные аргументы лицу, принимающему решение (судье), или группе, принимающей решение, является ключевым навыком для адвоката. Будущим юристам необходимо усвоить это, поэтому в процессе обучения необходимы тренинги по конкретным вопросам с оценкой того, подкреплены ли их мнения доказательствами, или это лишь личные субъективные взгляды, не имеющие четкой аргументации.

Обсуждение и заключение. В настоящее время используются два основных случая для обучения навыку свободы выражения мнения студентов, готовящихся к участию в учебных соревнованиях по английскому языку: с европейской точки зрения и с точки зрения сравнительного права США. Третий случай - европейское дело, показывающее, как Европейский Суд мог совершить ошибку. Эти ситуации (и соответствующие принципы) обсуждаются в статье.

Ключевые слова: свобода выражения мнения, свобода получения информации, свобода распространения информации, обязанности и ответственность, вмешательство органов государственной власти, лицензирование вещания, гарантии от злоупотреблений в демократическом обществе, национальная безопасность, территориальная целостность, общественная безопасность, предотвращение беспорядков, предупреждение преступности, защита здоровья, защита нравственности, защита прав других лиц, авторитет и беспристрастность судебной власти

Для цитирования: Годдард Ч. Свобода слова и свобода самовыражения - где же границы? // Правосудие/Justice. 2021. Т. 3, № 4. С. 68-93. DOI: 10.37399/2686-9241.2021.4.68-93.

Introduction

T wo recent cases have examined the concept of being able to say what you want - in America this is usually referred to as the "Freedom of Speech" and in Europe as "Freedom of Expression." At a time when the world is more and

more connected than ever before, with media such as social internet platforms, people's opinions can be widely shared almost without restriction. Further, the sharing of certain opinions can inflame situations and polarise viewpoints to extreme positions. Political considerations can weigh in - with views as to what is allowable in a given society - which is perhaps dangerous.

The Rule of Law1 surely demands that laws are properly made by persons truly accountable to those who elected then - and arguably also that there should be mechanisms to challenge laws where reasonable to do so, and to challenge the decisions of those empowered to make decisions under those laws where those decisions have been made unlawfully. This begs the question, as to whether there should be limits to what people can say and if so where do those limits lie?

These two main cases - Baldassi v France (in the European Court of Human Rights) and Amawi v Pflugerville Independent School District (in the Texas District Court) - explore these ideas. The judgements - respectively in French and English - offer insights into judicial thinking around this topic, and are worth studying. The European Court has considered Freedom of Expression many times - and a contrasting contemporary (third) case from the European Court is also important (Willems v France) because it highlights a possible mistake in judicial thinking. Courts after all are not infallible and this should not be forgotten when reading judgements.

Before turning to the facts of these two cases, some general words on this so called "Right" are worthwhile.

Freedom of Expression under the UN Declaration of Human Rights

The United Nations Declaration of Human Rights (UDHR), in article 19 recognises the right of freedom of expression as a human right:

"Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers."

Few people seem to challenge this wide-ranging statement. Should there really be a complete absence of interference in seeking, receiving and imparting information and ideas? Politically, the Allies2 during the Great Patriotic War,

1 The Rule of Law, by Lord Thomas Bingham [Bingham, T., 2010], former Lord Chef Justice of the United Kingdom is a paperback sized book, highly readable, and arguably the most important law book ever published. The Bingham Centre for the Rule of Law at Cambridge University continues the work espoused in this book. It contains Lord Bingham's view of what the Rule of Law means, and how we recognise it -and also how we can recognise its absence. For anybody considering a career related to justice this book gives much food for thought.

2 The Soviet Union of Socialist Republics, United Kingdom, America, (the big three), another eleven allied combatants with governments-in exile (including France, Greece, and the Philippines), and another nine other combatant states (including China, Canada, Australia and New Zealand)

(or Second World War as it is known outside the former Soviet Union territories) adopted as their basic war aims the so called "Four Freedoms." These were Freedom of Religion, Freedom from Fear, Freedom from Want, and finally, Freedom of Speech. These grand ideas found their realisation in the UHDR, arguably without too much thought as to where boundaries might exist.3 The UHDR is of course not a binding legal document on the signatories.

Freedom of Expression under the International Covenant on Civil

and Political Rights

Later, the Right to Freedom of Expression was also recognised in the International Covenant on Civil and Political Rights, (ICCPR)4 adopted by the United Nations General Assembly on 16 December 1966, (entering force on 23 March 1976). This document binds its signatories to respect political and civil rights of individuals - which includes the Right to Life, Freedom of Assembly, Electoral Rights, Rights to a Fair Trial, and Freedom of Speech. Currently, this is signed by 173 parties. Russia is a signatory, thanks to the Soviet Union signing it on 18 March 1968, and ratifying it on 16 October 1973 (with it entering force on 23 March 1976 when the requisite number of signatories had ratified it). Articles 18, 19, and 20 cover the field of Freedom of Expression, namely:

Article 18

1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

2....

3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

4....

Article 19

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

In passing it is worth noting that the UHDR was signed at the Palais de Chaillot in Paris, France. The location has never been, to my knowledge, explained or thought about. This is the building that stands behind the camera in the iconic photograph of Hitler in Paris where we see the Eiffel Tower in the background. Hitler of course only visited France once, so this photograph in one of the capitals of Europe is particularly powerful. I think it might well have been chosen as a location for signing a document which stands so fundamentally against everything that Hitler espoused.

The ICCPR is part of the International Bill of Human Rights, otherwise known as UN General Assembly Resolution 217. Thus It consists of the Universal Declaration of Human Rights (adopted in 1948), the International Covenant on Civil and Political Rights (ICCPR, 1966) with its two Optional Protocols and the International Covenant on Economic, Social and Cultural Rights (ICESCR, 1966). The two covenants entered into force in 1976, after a sufficient number of countries had ratified them.

3

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of

public health or morals.

Article 20

1. Any propaganda for war shall be prohibited by law.

2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

We see here the more sensible provisions, almost twenty years later, almost certainly brought about the exigencies of the world order at the time. There is a recognition that the freedom of expression is not without boundaries, yet the articulation of reasons for curtailing this right are arguably rather broadly and vaguely drawn - with words such as "special duties and responsibilities" and thus may "be subject to certain restrictions."

Freedom of Expression under The European Convention on Human Rights

The European Convention on Human Rights (ECHR)5 sees perhaps the strongest encapsulation of the ideas in the UHDR. It was first drafted in 1950 by the Council of Europe which had just been formed. It entered force on 3 September 1953. It is currently signed by the original ten states, and a further 37 including Russia (which signed on 28 February 1996). Those critical of any state's reputation or record on democratic and human rights standards amongst these 47 states would do well to remember that membership of the Council is open to any European country, provided that they meet specific democratic and human rights standards6 - failure to do so can bring sanctions under Chapter 2 Article 8.7 Whilst the Council of Europe is by its very nature political, there can sometimes be strong disagreements between alliances.8

6

5 Formerly the Convention for the Protection of Human Rights and Fundamental Freedoms.

See Statute of the Council of Europe, Chapter 2 - Membership, Article 3 "Every member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms, and collaborate sincerely and effectively in the realisation of the aim of the Council as specified in Chapter I."

"Any member of the Council of Europe which has seriously violated Article 3 may be suspended from its rights of representation and requested by the Committee of Ministers to withdraw under Article 7. If such member does not comply with this request, the Committee may decide that it has ceased to be a member of the Council as from such date as the Committee may determine."

A notable example is was the suspension of Russia by the Council of Europe following what was in some circles referred to as Russia "seizing" Crimea and in other circles, known as the voluntary decision of the Crimean people to exercise their right to

Perhaps the most notable provision of the Convention was the establishment of the European Court of Human Rights (ECtHR). This is a well known institution, where any citizen of a Member State can take their case to this Court if they believe their rights under the Convention have been violated by a State party. In the event that the Court finds that a violation has taken place, then the judgement is binding on the state concerned and the State is obliged to execute it. Naturally, all judicial options in the citizen's home country must be exhausted9 before an application to this Court can be made - which usually means their case being heard in the relevant domestic Supreme Court.10

The provisions regarding Freedom of Expression are found in Article 10(1), with the grounds allowing a State to restrict those rights covered in Article 10(2), namely:

"ARTICLE 10 Freedom of expression

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

The Court helpfully publishes what it calls "case law guides" on specific articles. The latest guide for Article 10 was published on 31 December 2020.

rejoin Russia. It is notable that for the latter group, this was clearly an exercise by the Crimean people of Freedom of Expression in so stating this wish. Other Members of the Council disagreed, resulting in Russia's suspension - with readmission to full voting rights only occurring after a five year suspension had concluded on 25 June 2019, despite predictable stalling motions by Ukraine and Georgia.

Rules of the European Court of Human Rights, Rule 47 clause 3.1(b) requires an applicant to submit with their application "copies of documents and decisions showing that the applicant has complied with the exhaustion of (the) domestic remedies requirement and the time-limit contained in Article 35§ 1 of the Convention."

A useful direction of further research would be to examine cases which were submitted for appeals to relevant Supreme Courts, but which were not accepted due to there being an absence of a point of law which the Court felt demanded its attention. Correspondingly, was the (allegedly) injured party denied an opportunity for redress in the ECtHR? For example, the circumstances of whether a party can appeal to the Unite Kingdom Supreme Court is covered in the document "A guide to bringing a case to the Supreme Court" which summarises various statutory provisions which themselves may be found in the Administration of Justice (Appeals) Act 1934, the Administration of Justice Act 1960, the Administration of Justice Act 1969, the Judicature (Northern Ireland) Act 1978, the Court of Session Act 1988 and the Access to Justice Act 1999.

9

10

Within its 132 pages, one will find the key principles which the Court follows, and includes case law from the leading major cases and recent judgements and decisions. It is worth noting that the decisions of the Court not only decide the cases brought before it, but also clarify, develop rules and safeguard the Convention provisions. This of course supports the entire body of the Contracting Parties - raising the standards of the protection of human rights throughout the community of the Convention States as well as extending human rights jurisprudence within this community.11

In passing, it should be noted that the United Kingdom, through its Human Rights Act 1988 Schedule 1 has incorporated, verbatim, the provisions of Article 10 of the ECHR.

There is a general view in the ECtHR that Article 10 is important, and is applicable not only to "information" or "ideas" that are received favourably or regarded as being inoffensive, or even a matter of indifference. The Article also applies where such communications can offend, shock or disturb. This might come as a surprise, yet the Court firmly opines that a "democratic society" demands broadmindedness, tolerance and pluralism.12

The Case-Law Guide to Article 10 is well worth reading for its depth and breadth of judicial thinking on this topic. It covers topics such as applicability and admissibility, and the steps that are considered in coming to a decision. These include:

1. Whether there was an interference with the exercise of the right to freedom of expression and the forms of interference.

2. The "three tests", namely the lawfulness of the interference, its legitimacy and its necessity in a democratic society.

3. Whether there is any conflict between two rights protected by the Convention and the exercise of balancing here - the leading case being Perinçek v Switzerland13.

4. The protection of rights of others.

5. The role of any public "watchdog' and any increased protection, duties and responsibilities thereby accruing.

6. Protection of journalistic sources.

7. Preventing disclosure of information received in confidence.

8. Specific protections for so called "whistle-blowers" and for reporting on alleged irregularities by public officials.

9. Freedom of expression and the right of access to State held information.

11 Three cases are particularly noteworthy in this regard: Ireland v. the United Kingdom, § 154, 18 January 1978, Series A no. 25, and, more recently, Jeronovics v. Latvia [GC], no. 44898/10, § 109, ECHR 2016, and Nagmetov v. Russia [GC], no. 35589/08, § 64, 30 March 2017).

12 See Handyside v. the United Kingdom, [1976] ECtHR 5493/72, § 49; and Observer and Guardian v. the United Kingdom,[1991] 51/1990/242/313 § 59. (Spycatcher case)

13 15 October 2015 (27510/08).

10. Protection of the authority and impartiality of the justice system and freedom of expression. The right to freedom of expression in the context of judicial proceedings and the participation of judges in public debate.

11. Freedom of expression and the legitimate aims of national security, territorial integrity or public safety, and the prevention of disorder of crime.

12. Freedom of expression and the protection of health or morals.

13. Freedom of expression and the Internet.

14. Pluralism and freedom of expression.

15. Article 10 and its relationship to other provisions of the Convention and its Protocols and related issues of interdependency and overlapping.

The American Right of Freedom of Speech

This predates the UN Declaration of Human Rights by some 159 years, and is one of Lord Bingham's "important historical milestones" in the development of the Rule of Law.14 His reasons are insightful and incisive. He notes that whilst it was not the first attempt to create a document which defined the powers of the different branches of government, it was the first where we see - as the product of high-quality debate and democratic processes - an "enlightened" attempt at creating a strong and effective central government whilst at the same time preserving each State's individual autonomy and the fundamental rights of every citizen within the United States.

The history of the evolution of the American Constitution need not concern us here15, save to note that a guiding principle was to establish a government with sufficient power for operation on a national level, without infringing fundamental rights. This included the separation of governmental power into three divisions, each with so called checks and balances on those powers to be sure that no one division of government attained supremacy over another. It entered legal effect on the 4th of March 1780, together with ten amendments.16 The First Amendment to the US Constitution reads:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

Thus the government is not only prohibited from making any law which establishes an official religion, but also from making any law which prefers one

14 Discussed: [Bingham, T., 2010, p. 32].

15 An interesting introduction to its genesis can be found on the White House website https://www.whitehouse.gov/about-the-white-house/our-government/the-consti-tution/.

16 The opening words of the US Constitution - "We the People" is an affirmation that the government of the United States exists to serve its citizens. The Russian Constitution is similar, and arguably better drafted, encompassing as it does the diverse, yet unified, nature of its citizens "We, the multinational people of the Russian Federation, united by a common fate."

religion over another - or even over an absence of religion.17 The Pledge of Allegiance to the Flag of the United States - including reference to "under God" is not without controversy, because many Americans in positions of authority -mostly over young schoolchildren and themselves possessing a petty dictator mentality - believe it to be a legal requirement to make it.18

As regards Freedom of Speech, Cornell Law School has this to say:

"Freedom of speech may be exercised in a 'direct' (words) or a 'symbolic' (actions) way. Freedom of speech is recognized as a human right under article 19 of the

17 The Pledge of Allegiance to the Flag, is itself controversial as regards the First Amendment. This pledge, made every day by schoolchildren across America, was first introduced by Colonel George Balch in 1887 "We give our heads and hearts to God and our country; one country, one language, one flag!" By 1892, thanks to the Reverend Francis Bellamy, this had been amended to the arguably more reasonable "I pledge allegiance to my Flag and the Republic for which it stands, one nation, indivisible, with liberty and justice for all". Legal requirements for the Pledge first entered force in Public Law 77-623, enacted by the 77th Congress of the United States June 22, 1942. Section 7 reads "That the pledge of allegiance to the flag, 'I pledge allegiance to the flag of the United States of America and to the Republic for which it stands, one

Nation indivisible, with liberty and justice for all be rendered'....." God is absent, here,

although it had periodically been proposed by various parties, starting with Louis Bowman, in the late 1940s, supported by the lineage-based society "The Daughters of the American Revolution". Bowman argued that including the words "under God" originated from Lincoln's Gettysburg Address although not every manuscript version of this Address contains these words. Various religiously connected groups started to use the words "under God", but the first governmental move to do so came with Representative Rabaut introducing a resolution in 1953 to include these words. No such push had previously succeeded, but President Eisenhower (recently baptised as a Presbyterian in 1953) heard a sermon from the Scottish minister George MacPherson Docherty on the 7th of February 1954. Docherty maintained that the Pledge could be a sentiment of any nation, opining "There was something missing in the pledge, and that which was missing was the characteristic and definitive factor in the American way of life." He cited Lincoln's words "under God" as defining words that set the US apart from other nations. The result was an Amendment to the Pledge of Allegiance to the Flag by the 83rd Congress, Public Law 83-396, which was signed into law by President Eishenhower on Flag Day, June 14, 1954. Section 7 reads "The following is designated as the pledge of allegiance to the flag, 'I pledge allegiance to the flag of the United States of America and to the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all'".

18 It is not, ever since the case of West Virginia State Board of Education v Barnette (1943) where the Supreme Court ruled that students could not be forced to salute the US flag or say the Pledge because it would violate their First Amendment Rights. "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein," - (Justice Robert Jackson). Further notable cases include Frazier v. Winn, (1976) and the arrest of an 11 year old Florida schoolboy in 2019 for refusing to say the Pledge in a Polk County School (charges were subsequently dropped, arguably due to robust social media campaigning and the realisation by the authorities that there were incorrect).

Universal Declaration of Human Rights. The right to freedom of speech allows individuals to express themselves without government interference or regulation. The Supreme Court requires the government to provide substantial justification for the interference with the right of free speech where it attempts to regulate the content of the speech. Generally, a person cannot be held liable, either criminally or civilly for anything written or spoken about a person or topic, so long as it is truthful or based on an honest opinion......

The Supreme Court has also recognized that the government may prohibit some speech that may cause a breach of the peace or cause violence. . less protected categories of speech (include) advocacy of illegal action, fighting words, commercial speech and obscenity. The right to free speech includes other mediums of expression that communicate a message. The level of protection speech receives also depends on the forum in which it takes place."19

As might be imagined there is a considerable case law built up over the subject of Freedom of Speech under the First Amendment. The well-known media layer, Ian Rosenberg, in his recent book has outlined a number of the principal cases which define First Amendment freedoms20.

This round up highlights the principle sources of the concept of Freedom of Speech and Freedom of Expression and gives a basic outline of some of the issues which can bear upon and restrict this right. This forms the backdrop to the discussion of the two cases.

Background to the Freedom of Expression cases

As is well known, there is a long-established conflict between Arab people and Jewish people, notably in - but not limited to - the Middle East. Humans have an unpleasant tendency to categorise people by some defining characteristic -for example by nationality, colour, gender, sexual preference, race, or religion -and then to apply discriminatory practices to those people who are different to themselves. One nadir, of many, (and sometimes thought with good reason to be the worst example) is the Holocaust which befell the Jewish people of Europe under Hitler. Quite rightly, the modern State of Israel and various Jewish groups ensure that this is not forgotten.21 A notable figure here is Avner Shalev, Chairman of the Yad Vashem Directorate, who has said:

"The presence of witnesses - the remnant who survived - has always ensured a certain moral strength; their increasing absence creates a moral, cultural and educa-

19 See https://www.law.cornell.edu/wex/first_amendment.

20 [Rosenberg, I., 2021]. For Russian students, learning legal English as an entry point into professional working in the English language, it ranks with Tom Bingham's book as a powerful and incisive insight into concepts such as the value of liberty, the price of freedom, and what it means to be a lawyer championing the rights of those who stand up to be counted. Highly recommended.

21 There are two notable examples. The first is the Auschwitz Memorial and Museum (see http://auschwitz.org/en/) ("There is no way to understand post-war Europe and the world without an in-depth confrontation between our idea of mankind and the remains of Auschwitz"). This organisation tells the story and provides education of the Nazi extermination camp. The second is Yad Veshem, the World Holocaust Remembrance Centre. (see https://www.yadvashem.org)

tional vacuum. How will Holocaust commemoration remain relevant to members of the fourth and fifth generations, both Jewish and non-Jewish? What place will it occupy when the survivor generation is no longer with us? Will remembrance be meaningful in

the context of contemporary events?..........

We live in an age of instant communication and progressive technology. The world is rapidly advancing through the third millennium under the pressure of an open-market economy, hyper-consumerism, a world communications revolution and a flood of boundary-reducing tourism. However, the benefits to be garnered from the free flow of diverse information are counterbalanced by an unavoidable side effect: the creation of short memories. Many youths today regard history not in the sense of where they have come from, but rather as a bygone series of events that are 'past', while they themselves are living 'post'. This viewpoint is dangerous in that it is disjunctive rather than connective."22

These insightful comments have much to do with the responsibilities that Freedom of Expression demands. No sane person can have anything but revulsion for the Holocaust and the Nazi regime which operated it. The stain of anti-semitism, discrimination (and worse) against Jewish people, is abhorrent to any right-thinking person who values their position in a pluralistic, democratic, and respectful world society where true human values and rights applicable to all such as described above are considered essential to the Rule of Law.

It should also be mentioned that any such right thinking person must also espouse the full range of rights within the documents described above, including the Freedom of Expression. This perhaps finds its sharpest and arguably most emotional difficulty when we consider whether the State of Israel can be legitimately criticised by a person or body without that person (or body) making such a criticism being labelled as being anti-semitic. In certain cases this can lead to being liable to civil or criminal sanction for making these criticisms. Such criticisms can be verbal, written, or physical such as when protesting.

The Israeli - Palestinian conflict is surely one of the world's most enduring conflicts, and there has been an occupation by Israel of the Gaza Strip and West Bank for some 54 years. For those of us who are not from this region, it is probably impossible to fully understand the depth and ramification of this conflict, let alone try to contribute meaningfully to any process which might help bring peace to this part of the world. This year's outbreak of further violence, on Qadr Night (observed by Muslims on 8 May) and Jerusalem Day (9-10 May, an Israeli national holiday) was perhaps more widely reported and covered than ever before with worldwide reactions in all the mainstream media and on social media platforms.

Unsurprisingly, for those from this part of the world, or who have their heritage roots there (both physical familial, and/or on religious grounds), this conflict is a permanent part of their life (and those of their parents and grandparents), and not simply an episode on the news. Palestinians, whose State is

22 These insightful comments surely highlight a major drawback to the modern interconnected world, and the negative effects it can bring.

H. rifífl&pfí

79

economically and militarily less strong than Israel, have created a group, called the BDS movement23 which states:

"The Boycott, Divestment, Sanctions (BDS) movement works to end international support for Israel's oppression of Palestinians and pressure Israel to comply with international law."

The BDS movement is based upon the example of the opposition movement which arose against the South African apartheid regime, and it compares the plight of Palestinians to those of apartheid era black South Africans.

By resolution ES-10/14, adopted on 8 December 2003 at its Tenth Emergency Special Session, the General Assembly of the United Nations decided to "urgently" request the International Court of Justice for an advisory opinion on the following question:

"What are the legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, as described in the Report of the Secretary-General, considering the rules and principles of international law, including the Fourth Geneva Convention of1949, and relevant Security Council and General Assembly resolutions?"

The full text of the Advisory Opinion - which found Israel to be in breach of international law - is a sobering read.24 Whilst it is a very well known opinion, what is perhaps less well known is that there was one judicial dissent-ment by Dr. Thomas Buergenthal - which does not form part of the main ICJ judgement. What is even less well known is that the he was himself a Holo-

23 See https://bdsmovement.net.

24 See https://www.icj-cij.org/public/files/case-related/131/131-20040709-ADV-01-00-EN.pdf. The court found a) by fourteen votes to one, that the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, and its associated régime, are contrary to international law, and b) by fourteen votes to one, epe Israel is under an obligation to terminate its breaches of international law. Moreover, that it is under an obligation to cease forthwith the works of construction of the wall being built in the Occupied Palestinian Territory, including in and around East Jerusalem, to dismantle forthwith the structure therein situated, and to repeal or render ineffective forthwith all legislative and regulatory acts relating thereto, in accordance with paragraph 151 of this Opinion; c) by fourteen votes to one, Israel is under an obligation to make reparation for all damage caused by the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem; d) All States are under an obligation not to recognize the illegal situation resulting from the construction of the wall and not to render aid or assistance in maintaining the situation created by such construction; all States parties to the Fourth Geneva Convention [...] have in addition the obligation, while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention; e) by fourteen votes to one, The United Nations, and especially the General Assembly and the Security Council, should consider what further action is required to bring to an end the illegal situation resulting from the construction of the wall and the associated régime, taking due account of the present Advisory Opinion.

caust survivor before becoming one of the foremost human rights lawyers of his time.25

Where there are BDS supporters, there are also opponents, who frame laws against them, so called anti-BDS laws the specific provisions of which vary widely. That there should be such widespread provision of such laws strongly suggests that the BDS movement is succeeding in its goals, at least partially, to the point where Israel feels the pressure and pro-Israel supporters feel galvanised to act.

Anti-BDS laws are designed to make it difficult for people and organisations to participate in boycotts of Israel whilst elsewhere anti-BDS resolutions are symbolic and non-binding parliamentary condemnations, either of boycotts of Israel or of BDS itself. Generally, such condemnations accuse BDS of being anti-Semitic and are often followed by laws targeting boycotts of Israel.

Proponents of anti-BDS laws claim that BDS is a form of anti-Semitism, and therefore such laws legislate against hate speech. However, is it really anti-Semitic to support a movement whose peaceful goals find their foundation in an ICJ Advisory Opinion, the content of which was largely supported by a distinguished Judge who was also a Jewish Holocaust survivor? Opponents of anti-BDS laws claim that Israel and its supporters are engaging in so called "lawfare" by lobbying (very powerfully) for anti-BDS laws that infringe upon the right to free speech. It is against this background that I now turn to two very interesting cases.

Baldassi v France

On September 26th, 2009 and May 22nd, 2010, eleven Palestinian activists led by a Mr Baldassi, of the so called "Palestine 68 Collective", a group supporting BDS, took part in peaceful and non violent demonstrations using supermarket trolleys filled with Israeli goods. They did so inside and outside the Carrefour supermarket in Illzach, France. They urged customers not to buy these goods imported from Israel, and handed out leaflets which said:

25 Some might consider it predictable that the one Judge, with Jewish roots (and himself being a Holocaust survivor), would cast a dissenting vote to the Opinion of the Court. That would be a great disrespect to the Judge. His Declaration (surprisingly and inexplicably not part of the ICJ document noted above) can be found at https://www.un.org/unispal/document/auto-insert-178825/. One his phrases stands out: "Since I believe that the Court should have exercised its discretion and declined to render the requested advisory opinion, I dissent from its decision to hear the case. My negative votes with regard to the remaining items of the dispositif should not be seen as reflecting my view that the construction of the wall by Israel on the Occupied Palestinian Territory does not raise serious questions as a matter of international law. I believe it does, and there is much in the Opinion with which I agree." His famous, and jaw droppingly staggering autobiographical book, "A Lucky Child" [Buergenthal, T., 2010] describes how as a nine year old child he witnessed great cruelty and executions. Many acts of bravery on the parts of the victims gave rise to his conviction that "moral resistance in the face of evil is no less courageous than physical resistance." This is surely part of the foundation for non violent Freedom of Expression.

"You can oblige Israel to respect human rights. Boycott Israeli imports. Buying

imported Israeli products amounts to legitimising the crimes in Gaza and endorsing

Israeli government policy."

They also wore shirts with the words "Long live Palestine, boycott Israel" written on them.

In line with a number of other governments around the world, President Macron sought to outlaw the BDS movement, undoubtedly as a result of pro-Israeli lobbying by strong pressure groups. In 2011, the French Minister of Justice Michèle Alliot-Marie issued an internal memorandum instructing French prosecutors to prosecute any citizens calling for boycotts of Israeli products. So far, the reasons for this memorandum - including any lobbying - do not appear to be in the public domain.

Following this memorandum, prosecutors charged the BDS activists with inciting discrimination under article 24 (8) of the Law on the Freedom of the Press of 1881. Article 24 of the 1881 Act imposes criminal penalties on "those who, by one of the means set forth at Article 23, incite hatred or violence against a person or group of persons on account of their origin or membership or non-membership of a given ethnic group, nation, race or religion, or his true or supposed sexual orientation or gender identity." The purpose of the incitement must be to cause those to whom it is addressed to behave in a discriminatory way against the protected persons. The means referred to in Article 23 are "speeches, shouts or threats expressed in public places or meetings, or by written words, printed matter, drawings, engravings, paintings, emblems, pictures or any other written, spoken or pictorial aid, sold or distributed, offered for sale or displayed in public places or meetings, either by posters or notices displayed for public view, or by any means of electronic communication." (This last item was no doubt a much later amendment to the 1881 law).

The trial court of first instance, the Tribunal Correctionel de Mulhouse, actually acquitted the defendants. But the ruling was appealed by four powerful pro-Israeli groups - The France-Israel Chamber of Commerce, Avocats sans Frontières, L'Association France-Israel and the Bureau National de Vigilance Contre l'Antisemitisme (the Simon Wiesenthal Centre's French associate), to the appeals court, Cour d'appel de Colmar. The Court of Appeal convicted the defendants in November 2013 and fined them each 1000 Euros. They were also ordered to pay the court expenses of 28,000 Euros.

They appealed to the Supreme Court, the Cour de Cassation, which in October 2015 upheld their conviction. They did so, citing a law that prescribes imprisonment or a fine for parties that "provoke discrimination, hatred or violence toward a person or group of people on grounds of their origin, their belonging or their not belonging to an ethnic group, a nation, a race or a certain religion." In other words, the protesters, including Mr Baldassi, were held to not have the right to freely express their opinions.

Baldassi and others then, having exhausted their domestic remedies, appealed this decision to the European Court of Human Rights (ECtHR). This had to decide whether it was justified to restrict the defendants right to freedom of expression as defined by article 10(1) of the European Convention on Human

Rights. As we saw before, Article 10(2) of the Convention allows for such restrictions if they are "in accordance with law" and "necessary in a democratic society."

Baldassi v France - European Court Decision26

The main issue that the Court had to consider was whether the clear interference by the French State with the applicants' ECHR Article 10(1) right to freedom of expression (the imposition of criminal penalties) was "necessary in a democratic society" (and therefore justified) for the protection of the "rights of others" under Article 10(2) of the ECHR.

The clear interference referred to was the French law under which they were convicted, namely article 24, subparagraph 8 of the 29 July 1881 Press Law. It is often regarded as the foundational legal statement on freedom of the press and freedom of speech in France, inspired by Article 11 of the (French) Declaration of the Rights of Man and of the Citizen of 26 August 1789.

At the same time, the law imposes legal obligations on publishers and criminalises certain specific behaviours (called "press offences"), particularly concerning defamation. One of the most important reforms instituted by the Press Law was a major reduction in the previously extensive range of activities deemed libelous.

Libel (actually economic libel in this context) is defined therein as "any allegation or imputation of fact striking a blow at the honour or the consideration of a person or a body to which that fact is imputed." It is generally possible to defend oneself from a libel accusation by demonstrating that the libelous facts are true, though this is not accepted in all cases. An insult (injures) is defined as "an outrageous express, terms of despise or invectives that do not charge any fact to the insulted person."27 The Court unanimously found that under the French Law they had been convicted under a law which applied to them.

However, was the interference legitimate by reference to the European Convention on Human Rights? The Court, applied its three-part test according to which an interference is justified only if it is prescribed by law, it pursues a legitimate interest and it is necessary in a democratic society - so as to make it lawful within the meaning of Article 10(2) of the ECHR. The test which is generally used is the so called Peringek28 3 stage test.

26 https://hudoc.echr.coe.int/eng#%7B%22itemid%22:%5B%22001-202756%22%5D %7D.

27 It is difficult to equate the peaceful protest actions and statements of Mr Baldassi with an "outrageous express, terms of despise or invectives that do not charge any fact to the insulted person." That is, they are not scurrilous statements which have no basis in fact. A prosecution which alleges that it was, and a conviction that confirms this in the eyes of the State is arguably inconsistent with the Rule of Law.

28 Peringek v. Switzerland is a 2013 judgment of the European Court of Human Rights concerning public statements by Dogu Peringek, a nationalist political activist and member of the Talat Pasha Committee, who was convicted by a Swiss court for publicly denying the Armenian genocide. The judgement was praised by some legal schol-

1. Prescribed by law

With regard to the first condition, the Court found that French law contained such a restriction recalling its previous findings of non-violation of Article 7 (a parallel submission by Baldassi, which was unanimously rejected, that he should not have been punished because there was no applicable law). It is not the task of the Court to substitute itself to the competent national authorities, but it falls within its role to assess whether the reasons adduced were proportionate, relevant, and sufficient to justify a restriction of a right protected by the Convention.

2. Pursuance of a legitimate restriction

The French measure was in pursuance of a legitimate aim, namely protecting commercial rights - in this case the rights of the producers or the suppliers of products coming from Israel. In Baldassi's case, the Court observed that as interpreted and applied in this case, French law prohibits any call for a boycott of products because of their geographic origin, whether Israeli or not. The Court observed that a boycott is above all a means to express political opinions, and that a call for a boycott is aimed at communicating these opinions while calling for specific actions related to them.

3. Is the restriction necessary in a democratic society?

However, when looking at this question, the Court considered that such a restriction was not necessary in a democratic society, and thus amounted to a violation of Article 10 (despite it being necessary in French eyes for its own internal rules). To come to this conclusion, the Court used the principles in the Perinçek v. Switzerland judgement and held the following for Baldassi:

i) Freedom of expression also applies to information and ideas that can offend, shock or disturb. The Court noted that political discourse (as in this case) is by its very nature, a source of controversial arguments and can be acrimonious, and

ii) The adjective "necessary" implies that there is a pressing social need, which leaves Contracting States some leeway in deciding where the boundary lies, but that the Court can ultimately review this in order to assess its compliance with the requirements of the Convention, and

iii) Nonetheless, despite the heated temperatures that can exist in making arguments, it is of public interest - and lawful - that these arguments should take place and exist, except where it degenerates into a call for violence, hate, or intolerance. That is the limit not to be crossed - and where the boundary lies. Crucially, inciting by protest for someone to treat differently is not necessarily the same as inciting to discriminate, and

ars for strongly upholding the freedom of speech. On the other hand, it was widely criticised for overlooking anti-Armenianism and making a double standard between the Holocaust and other genocides. See https://hudoc.echr.coe.int/eng#%7B%-22fulltext%22:%5B%22perincek%22%5D,%22languageisocode%22:%5B%22FRE% 22%5D,%22itemid%22:%5B%22001-158216%22%5D%7D.

iv) The Court firmly rejected the argument put forward by the French Government that Mr Baldassi's actions (and those of his colleagues) could fall into a category where they were calling for hate, violence, discrimination, or intolerance. It was noted that the actions of protest and the words on the leaflets and tee-shirts for which the applicants were criticised concerned a subject of general interest, namely that Israel should respect public international law and the human rights situation in the occupied Palestinian territories. This was, and remains a major contemporary debate, both in France as in the whole international community. These actions and words were a form of political and activist expression;

v) However, where such a call to boycott is joined with an expression of a protesting opinion together with an incitement to differential treatment, that can constitute a call for discrimination against others. If so, any such call for discrimination is instead a form of calling for intolerance. This is, similar to a call for violence or a call for hate, is one of the limits not to be crossed in exercising freedom of expression. Furthermore, with regard to the distinction between incitement to a differential treatment and incitement to discrimination, the Court highlighted that the applicants were never convicted for racist or anti-Semitic remarks, and that their actions did not cause any violence or damage in the supermarket;

vi) In addition, since the actions and statements of the applicants were political and militant in nature, they were particularly protected by Article 10 and could be limited only in exceptional circumstances. In light of the above, the Court concluded that the conviction of the applicants, and thus the restriction on their right of freedom of expression, was not based on a relevant and sufficient ground, and that Article 10 had thus been violated. The Court observed that Article 10(2) leaves very little room for a State restriction on freedom of expression in the area of political discourse or questions of general interest. This must be a key part of the judgement which Member States should take note of.

Finally, France was ordered to pay each applicant 7380 EUR29 in compensation for breaching their Article 10(1) rights under the European Convention on Human Rights.

A third case was mentioned at the beginning of this article. This was a contemporaneous case in the European Court, namely Willem v. France.30 This concerned the criminal conviction of a French mayor who had asked the municipal restaurant services to boycott Israeli products. It was held that there was no breach of Article 10.

In this regard, the Court highlighted that a public servant such as a mayor has particular duties and responsibilities, including maintaining a degree of

29 It should be recalled that each one of the litigants in Baldassi was fined 1000 Euros and ordered to pay 28000 Euros costs, some 29000 Euros in total. The damages award thus leaves them rather out of pocket - which given the magnitude of the moral victory is perhaps disappointing.

30 Willem v. France - EctHR - 10883/05 Judgment 16.7.2009 [Section V] see https:// hudoc.echr.coe.int/fre#%7B%22itemid%22:%5B%22002-1409%22%5D%7D.

neutrality and reserve with regard to the territorial community which he represents as a whole. The Court further noted that the mayor had not promoted a debate or a vote on the matter, thus not encouraging a free discussion on a matter of general interest The Court stated that ordinary citizens are not bound by the same duties and responsibilities of public authorities, and thus the outcome of Willem could not have been analogically applied to this case.

Was Willem v France wrongly decided? This is an interesting question to debate within discussion groups on the basis of law, not least on the basis of how a regional mayor comes to office, who are the voters, and the legitimacy of an opinion both as a private citizen and as a public elected official. This exercise is fruitful in encouraging students to expand their ability to forensically dissect judgements and make differentiations and arguments.

Amawi v. Pflugerville Independent School District

This 2019 case involved a lady, Bahia Amawi, who together with a number of other people, found themselves unable to receive Texas State contracts without the requirement to first sign a document certifying that they would not participate whatsoever in any BDS activities. For convenience and brevity, whilst the case involved other parties, I restrict my narrative to Ms Amawi . She is a United States citizen of Palestinian origin, with family members living in Palestine

Bahia Amawi is a speech therapist, and provides speech therapy for three-to five-year-old children in a school district under contract to the Pflugerville Independent School District. She had been doing this for nine years, and her contract came up for its ten-year renewal. However, before she could renew her contract, Texas State authorities told that she had to sign an addendum which required her to certify that she does not boycott Israel and furthermore will not boycott Israel during the term of her employment.

She refused to sign this addendum because she believed that the "No Boycott of Israel" paragraph "violate[d] [her] First Amendment right protecting her right to advocate for human rights in Palestine." She was therefore forced to terminate her contractual relationship with the school district. She sued - like any good American.

The root cause was Texas State Senate House Bill 89, passed in 2017. This prevents state entities, such as a school district, from contracting with companies that "boycott Israel". It states:

A governmental entity may not enter into a contract with a company (or person) for goods or services unless the contract contains a written verification from the company (orperson) that it:

(1) does not boycott Israel; and

(2) will not boycott Israel during the term of the contract.31 The term "boycott Israel" is defined to mean

"refusing to deal with, terminating business activities with, or otherwise taking any action that is intended to penalize, inflict harm on, or limit commercial relations

31 Tex. Gov. Code § 2270.002.

specifically with Israel, or with a person or entity doing business in Israel or in an Israeli-controlled territory."32

The term "company" includes

"a for-profit sole proprietorship, organization^, association, corporation, partnership, joint venture, limited partnership, limited liability partnership, or any limited liability company, including a wholly owned subsidiary, majority-owned subsidiary, parent company or affiliate of those entities or business associations that exist to make a profit."33

It was referred to as an "Anti-BDS bill" by both Representative King, the Bill's sponsor and by Governor Gregg Abbott. Representative King described the BDS movement as "economic warfare" and stated that H.B.89 reflects Texas's disapproval of the movement because "[t]he BDS movement is directed at harming and destroying Israel, pure and simple." Upon signing the bill, Governor Abbott proclaimed that

"[a]nti-Israel policies are anti-Texas policies, and we will not tolerate [boycott] actions against an important ally."

Similarly, King stated that

"[t]he bill sends a strong message that Texas stands with its friends," and Abbott responded to a news report about this litigation by tweeting "Texas stands with Israel. Period."

When asked by a media outlet what motivated him to introduce H.B.89, King provided four reasons:

"First, as a Christian, my religious heritage is intrinsically linked to Israel and to the Jewish people. Second, as an American, our national security is dependent in great part on a strong Israel, often our only friend in the Middle East. Third, as a Texas legislator, our state has a substantial Jewish population and this issue is important to them. Texans have historical ties and do a lot of business with Israel. Fourth, it's just the right thing to do."

On the other hand, Ms Amawi said that she took part in the BDS movement because she

"advocate[s] for Palestinian human rights and justice", and to that end, "support[s] peaceful efforts to impose economic pressure on Israel, with the goal of making Israel recognise Palestinians' dignity and human rights".

In court documents she stated that she has "seen and experienced the brutality of the Israeli government against Palestinians." She testified that the Israeli government cuts off main roads for Palestinians but not Israelis in the West Bank, imposes "curfews that last for weeks" despite the need to obtain groceries or health treatments, closes schools, subjects Palestinians to constant searches, and takes Palestinian children into custody during the night. She noted that she "frequently make[s] economic decisions on the basis of [her] support for Palestine and [her] ethical objections to Israel's mistreatment of

32 Tex. Gov. Code § 808.001.

33 Tex. Gov. Code § 808.001.

Palestinians", including buying Palestinian olive oil and refusing to buy the Sabra brand of hummus because of the company's connections to Israel.

Amawi v. Pflugerville Independent School District 2019, District Court of Texas Decision34

At trial in the District Court, Ms Amawi (and others) applied for a Preliminary Injunction against the enforcement of H.B.89, alleging that it violated the First and Fourteenth Amendments to the United States Constitution. The First Amendment of course provides that there shall be no Congressional Law abridging the freedom of speech. The Fourteenth Amendment binds the State of Texas to the First Amendment. The State of Texas filed to dismiss the case which under US law is subject to the same standard of review. I will concentrate on Ms Amawi's motion and the court's consideration. (Before moving to Ms Amawi's motion, the court had to consider whether it had so called "subject matter jurisdiction" - which is outside the scope of the topic of this paper, being largely procedural in nature).35

As to the motion, under US Law, in order to grant a preliminary injunction (which is considered an extraordinary remedy), the Court has to consider a number of matters - specifically, the likelihood of success on the merits, whether there is the suffering of harm, considers the balance of equities, and finally has regard to public interest. In this case, the court gave extensive consideration to the first criteria, which is where law on freedom of speech in their jurisdiction can be found.

Firstly the Court looked at whether Ms Amawi has a likliehood of success on the merits of her case. To do this, it considered whether her boycotts are a

34 The full judgement can be accessed at https://casetext.com/case/amawi-v-pfluger-

ville-indep-sch-dist?__cf_chl_jschl_tk__=pmd_XKFENklrGLHRBPIMm8ZXeDm-

6l2esMmuTJkUtsQbW6M8-1633195985-0-gqNtZGzNAjujcnBszQg9.

35 The consideration of "subject matter jurisdiction" involved the Court determining whether it can hear these claims Firstly does the Court have "standing" under Article III of the Constitution (which limits the jurisdiction of federal courts to "cases" and "controversies." To meet the Art III standard a plaintiff must demonstrate that she has "(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Secondly, is there Eleventh Amendment Imminity where an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another state. This sovereign immunity, however, does not extend to suits brought against state officers in their official capacities for alleged violations of federal constitutional rights and seeking only prospective and injunctive relief. doctrine allows federal jurisdiction over a suit against a state official in certain situations where that suit seeks only prospective injunctive relief in order to end a continuing violation of federal law. Thirdly, the court considered "ripeness", which enforces the Constitution's limit of federal court jurisdiction to 'cases or controversies' by preventing premature litigation. A claim is not ripe for adjudication if it rests on contingent future events that may not occur as anticipated, or indeed may not occur at all. Fourthly, the court considered causation showing a causal link between the actions of the School District and the Claimants.

First Amendment protected activity (by reference to whether they are speech, and then whether they are protected speech)?

As to whether Amawi's boycott's were speech, the court considered what students and advocates will undoubtedly encounter, namely dueling prece-dents.36 The court concluded that Ms Amawi's boycott - her refusal to sign -was indeed speech as it was political. This was the central issue in Claiborne (refer below) due to the express holding in that case that the "non violent elements of petitioners activities are entitled to the protection of the First Amendment." Moreover, it did not support the pleadings of Texas that Amawi's boycott was a "mere refusal to buy things" because Claiborne recognised that that

"...boycotts are 'deeply embedded in the American political process' - so embedded not because 'refusing to buy things' is of paramount importance, but because in boycotts, the 'elements of speech, assembly, association and petition ... 'are inseparable' and are magnified by the 'banding together' of individuals to' make their voices heard."

However, just because Amawi's boycott was speech, does not necessarily mean it is protected speech - which is what the Court had to consider next. The Court opined that as Amawi's BDS boycotts as they were a form of expression on a public issue rested on what they called the "highest rung of the hierarchy of First Amendment values." Texas challenged Amawi on this issue, citing two cases, one of which interestingly covered political protest by longshoremen (dockside freight handlers) in protest against the Soviet Union's invasion of Afghanistan.37 The court held that Longshoreman represented the exception, not the rule on carefully distinguished grounds.38 Texas then tried

36 NAACP v. Claiborne Hardware Co. [1982] 458 US 886 regarding black activists, support the proposition that it is, where a boycott sought to achieve "racial equality and integration" - and the other precedent is Rumsfeld v FAIR [2006] 547 US 47 involved several law schools' challenge to the Solomon Amendment, which conditioned the receipt of federal funds on permitting military recruiters to enter campuses. After a lengthy review, the Court considered Claiborne, not FAIR governed the case. The reasons will be interesting to more advanced students.

37 International Longshoremen's Association v. Allied International, Inc [1982] 447 US 455, 467. This involved a secondary boycott under § 8(b)(4) of the National Labor Relations Act wa s not protected by the First Amendment. Under that statute, a "secondary boycott" is an "unfair labor practice by [a] labor organization," in which a "union ... induc[es] employees to refuse to handle goods with the object of forcing any person to cease doing business with any other person." The secondary boycott in Longshoremen took the form of a union directive "to stop handling cargoes arriving from or destined for the Soviet Union." The Court in that instance held that the secondary boycott, though political, was not protected by the First Amendment because it "threaten[ed] neutral parties with ruin or substantial loss" and was "conduct designed not to communicate but to coerce."

38 The view was held that government may prohibit secondary boycotts "by labor unions... as part of Congress' striking a the delicate balance between union's freedom of expression and the ability of neutral employers, employees, and consumers to remain free from coerced participation in industrial strife." In Amawi's case,

to argue that Amawi's boycotts were not protected speech because their interpretation of Claiborne was that the First Amendment protection extends only to boycotts that vindicate a Constitutional right. The Court did not accept this argument39, and tellingly held that to have Constitutional protection does not turn upon "the truth, popularity, or social utility of the ideas and beliefs which are offered."

Texas then tried another rather cleverer differentiation, namely that Claiborne was not in relation to a boycott directed at a foreign nation. The Judge gave this short shrift, saying that not only was there no authority whatsoever to support the notion that speech has to be concerned only with domestic matters - but went to add that the Supreme Court had held just the opposite.40

In doing so, the Judge was referring to a landmark decision by Justice Sandra Day O'Connor (the first woman to sit on the US Supreme Court bench), whose analysis started by explaining that protests at governments were "at the core of the First Amendment" as it was "classically political speech." The Court clearly had no difficulty in holding that Amawi's boycott was indeed a political boycott falling within the ambit of protected speech.

Next, the Court had to consider both content and viewpoint-based discrimination. (When the government engages in content discrimination, it is restricting speech on a given subject matter. When it engages in viewpoint discrimination, it is singling out a particular opinion or perspective on that subject matter for treatment unlike that given to other viewpoints). In doing so, it referred to a 1972 case where it was held that

"...the First Amendment means that government has no power to restrict expression

because of its message, its ideas, its subject matter, or its content."41

On this citation, the Judge noted that content-based laws are presumptively unconstitutional and may be justified only if the government proves that they

her BDS boycotts are not a labor union practice coercing participation in industrial strife - thus rendering Longshoreman as inapposite

39 Specifically, the Court in Amawi noted that in Claiborne, nowhere did the Court suggest that the vindication of a constitutional right is a necessary condition of bringing a boycott within the ambit of First Amendment protection. It further noted that such a requirement would in fact contradict the Supreme Court's recognition that "constitutional protection does not turn upon 'the truth, popularity, or social utility of the ideas and beliefs which are offered' ". - referring to NY. Times Co. v. Sullivan [1964] 376 US 254, 271. This is a key point.

40 See Boos v Barry [1988] 485 US 312, 318-19. The Supreme Court struck down a District of Columbia law as being unconstitutional that prohibited the display of signs criticizing a foreign government within 500 feet of an embassy. The display clause prohibited signs from being displayed if the signs tended to bring the government of the embassy's country into "public odium" or "public disrepute." The congregation clause banned any gathering of three or more people within 500 feet of an embassy, in this case, the Chinese embassy.

41 Police Dept. of the City ofChicago v Mosley [1972] 408 US 92, 95.

are narrowly tailored to serve compelling state interests - and pointed to an even more explicit judgement which said

"If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."'42

The political nature of the BDS boycotts was explicitly noted by the Court, who said

"...BDS boycotts express a view on a matter of serious public concern. 'The relationship between Israel and Palestine is an internationally significant political conflict" and is "the subject of intense international debate.'.....; see generally (the) United Nations Report on the Israel-Palestine Conflict.....Only two years ago, the United Nations

Security Council unanimously adopted a resolution condemning Israeli settlements in Palestinian territory as 'a flagrant violation under international law' ".

Texas tried to point out that some twenty-five states have, since 2015, adopted prohibitions on boycotts against Israel, and on the other hand Amawi submitted that this - specifically H.B.89 - licences one side of the contentious Israeli - Palestinian debate by singling our those who participate in boycotts against Israel for disfavoured treatment. However, the Court found that H.B.89 in this case (it did not consider the other 25 states upon which there was apparently no submission) did not amount to government speech advancing permissible goals. In particular, it found H.B.89 to be

".presumptively unconstitutional and may be justified only if (Texas) proves that it is narrowly tailored to serve compelling state interests."

To establish a compelling state interest, Texas maintained that H.B.89 served a compelling interest in prohibiting national-origin discrimination and prohibiting state contractors from violating anti-discrimination principles. The Judge gave this even shorter shrift:

"...It is not....., the Court finds that H.B.89's plain text, the statements surrounding

its passage, and Texas's briefing in this case reveal the statute to be a viewpoint-based restriction intended not to combat discrimination on the basis of national origin, but to silence speech with which Texas disagrees."

The statements of Representative King and Governor Abbott were clearly evidence of the intention to silence speech with which they (and their supporters and lobbyists) disagree.43 In a clear unpicking of the statements of King and Ab-

42 Texas v Johnson [1989] 491 US 397 414.

43 Further comments of the lawmakers were noted, including "Its purpose in enacting it (H.B.89) was to 'prevent taxpayer resources from supporting businesses which work to isolate Israel from global trade because Israel is a key ally and trading partner of the United States and Texas.'" Further, King describes the BDS movement as "economic warfare that is not something most Texans approve of when it's aimed against afriend of Texas." King reiterates that the nation of Israel is a "friend" of Texas when he states that H.B. 89 "sends a strong message that Texas stands with its friends." Although King does state that "[w]e will not tolerate national-origin discrimination

bott, the most essential point stands out - namely that there is a clear difference between a state (in this case Israel) and national-origin (in this case Jewish).

On the other points needed to find in favour of Amawi, there was a need for irreparable harm to have been caused to her. This is clear under US Law44, and by reference to the timetable of key events, the Court found that Ms Amawi had injuries which had lasted far longer than a "minimal period of time." The question of balance of equities lay firmly with Amawi because of the findings that there was prima facie complete violation of Ms Amawi's First Amendment rights. As to the final point - public interest - thanks to clear case law,45 injunctions protecting First Amendment freedoms are always in the public interest.

Discussion and Conclusion

Concluding comments of the Judge in Amawi strike to the heart of the issue of the Freedom of Speech (or Expression), namely

The Court reiterates that this case is about whether Texas may prohibit boycotting the State of Israel as a condition of public employment. It is not about the merits of the significant and contentious public debate surrounding the relationship between Israel and Palestine. In coming to its conclusions, the Court is guided by first principles.

"At the heart of the First Amendment lies the principle that each person should decide for him or herself the ideas and beliefs deserving of expression, consideration, and adherence. Our political system and cultural life rest upon this ideal."

This is surely not the whole story though. The individual choice as the ideas and beliefs deserving of expression, consideration and expression takes no account of the individual within society, especially a pluralistic society where polarised opinions exist, and a spectrum of intermediate opinions also co-exist between the poles. As with much in the law, there is very little that is "black or white" - yet there are what I call "tipping points" which can persuade one to a view for, or against a certain proposition.

I am unconvinced by the conclusion in Amawi above as the litmus test for such a tipping point, yet I find much in the Judge's analysis - especially his reference to the landmark judgement of Justice Day O'Connor and his clear disavowal of the content and viewpoint unconstitutionality of Abbott and King's "justifications" - that gives comfort that the Rule of Law is alive and well.

However, it is in the Baldassi judgement that I find the essence of where the boundary in freedom of expression or free speech to lie. A pluralistic society with all of its advantages also has its darker side where the human tendency to discriminate can flourish. Particularly where we have differences of race and/ or religion, we can all too often see heated discussions and conflict. It is here -

against Israel," it is clear he is referring to the nation of Israel, not the characteristic of Israeli national origin.

44 "The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns , 427 US 347, 373 [1976].

45 Texans for Free Enterprise v Texas Ethics Committee [2013].

for the Rule of Law to flourish - that the greatest tolerance perhaps needs to be shown and the greatest degree of self-control exercised. Thus, the observations of the ECtHR in Baldassi that the boundary not to be crossed is one where arguments remain lawful - that is that there is an absence of calls for violence, hate or intolerance. Inciting others by protest for someone to treat differently is not necessarily the same as inciting to discriminate. That is - it is possible to peacefully protest against the actions or policies of a State without being discriminatory or odious to the people of that nation state (either by heritage, religious connection or direct citizenship).

In general, this review and associated research points the way to further investigations and research topics. Notably this would be those based upon the cases of the ECtHR and the UK and USA, where comparative analysis can highlight similar, and different approaches to one of the most pressing problems of pluralistic society in a Social Media enabled world where too many voices seek to impose their own view of the world upon others.

References

Bingham, T., 2010. The Rule of Law. London: Penguin Press. ISBN: 10014103453X.

Buergenthal, T., 2010. A Lucky Child. New York: Little, Brown and Company. ISBN: 9780316043403.

Rosenberg, I., 2021. The Fight for Free Speech: Ten cases that define our First Amendment Freedoms. New York: Pub NYU Press. ISBN: 9781479801565.

Список использованной литературы

Bingham T. The Rule of Law. London : Penguin Press, 2010. 213 p. ISBN: 10014103453X.

Buergenthal T. A Lucky Child. New York : Little, Brown and Company, 2010. 218 p. ISBN: 9780316043403.

Rosenberg I. The Fight for Free Speech: Ten cases that define our First Amendment Freedoms. New York : Pub NYU Press, 2021. 312 p. ISBN: 978-1479801565.

Information about the author / Информация об авторе

Charles Goddard, Professor of Law, Department of Legal Modelling and Moot Competitions, Kutafin Moscow State University of Law (MSAL) (9 Sadova-ya-Kudrinskaya St., Moscow, 123001, Russian Federation). Годдард Чарльз, профессор права кафедры правового моделирования Московского государственного юридического университета имени О. Е. Кута-фина (МГЮА) (Российская Федерация, 123001, Москва, Садовая-Кудринская ул., д. 9).

Email: [email protected]; [email protected]

The author declares no conflict of interests.

Автор заявляет об отсутствии конфликта интересов.

Submitted: 20.10.2021; reviewed: 29.10.2021; revised: 03.11.2021. Дата поступления рукописи в редакцию издания: 20.10.2021; дата одобрения после рецензирования: 29.10.2021; дата принятия статьи к опубликованию: 03.11.2021.