ORDRE PUBLIC AND THE FIRST AMENDMENT

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Notes

1. United States courts have not afforded comity to foreign judgments when the country did not reciprocate comity, as held in Hilton v. Guyot [1895]. The notion of comity is even stronger when American states enforce judgments of sister states as they have a constitutional duty to give “full faith and credit” to the court judgment of sister states. (“The Constitution of the United States,” Article 4, Section 1).

2. For foreign arbitral awards the Convention of the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (requiring signing states to recognize and enforce arbitration awards made in other contracting states) [hereinafter New York Convention]. See also Uniform Enforcement of Foreign Judgments Act, 1986, adopted by all but three states. There is a bill in the Massachusetts legislature to adopt the Uniform Act.

3. Napier was also acknowledged as the conqueror of the Sindh. It is worth mentioning the apocryphal story claiming that after conquering the Sindh (now in Pakistan), Napier sent a one word cable in Latin to London: “Peccavi,” that is, “I have sinned.”

4. Until now the Supreme Court has generally rejected hate speech statutes as violating the First Amendment in cases such as UWM Post, Inc. v. Bd. of Regents of Univ. of Wisconsin Sys. [1991], Doe v. Univ. of Michigan [1989], Saxe v. State Coll. Area Sch. Dist. [2001]. However, the Supreme Court in Wisconsin v. Mitchell [1993] has approved enhanced punishment for racially motivated acts and in Virginia v. Black [2003] restricted cross burnings as a form of freedom of speech. One may wonder why punishment for assault should be greater if the assault was motivated by race than if it was motivated by jealousy or class envy. Nonetheless, the constitutionality of such race-based enhancements is now settled.

5. Many conservatives remain skeptical of the OIC's (and the Obama administration's) bona fides and are critical of US support for the revised OIC efforts commonly called the Istanbul Process.

6. Viewing the British system as “the very fount from which our system developed,” American courts, part of the Anglo-American legal tradition, find it difficult that the British courts could effectuate to credit what in America we would instinctively see as a gross due process violation (Soc'y of Lloyd's v. Ashenden [2002]). However, when unable to find “system fairness,” American courts do refuse to enforce judgments from the flawed jurisdiction, as in DeJoria v. Maghreb Petroleum Exploration S.A. [2014] (noting the Moroccan royal family's influence over the Moroccan judiciary).

7. “Any suggestion that this system of courts ‘does not provide impartial tribunals or procedures compatible with the requirements of due process of law’ borders on the risible. [T]he courts of England are fair and neutral forums” (Soc'y of Lloyd's v. Ashenden, 476 [2002] (Posner, J.)).

8. In addition to Telnikoff, a number of other courts have considered whether the First Amendment precludes recognition of foreign judgments in the USA. See Bachchan v. India Abroad Publications, Inc. [1992] (refusing to enforce English libel judgment on grounds similar to Telnikoff); Abdullah v. Sheridan Square Press, Inc. [1994] (denying enforcement of a British defamation judgment as antithetical to First Amendment protections afforded the defendants); Dow Jones & Co. v. Harrods Ltd. [2002] (holding that declaratory relief sought by the plaintiff did not arise from “actual controversy” and that US granting of relief would not be dispositive of litigation in the UK where the suit originated).

9. For example, hate speech laws in the UK make it a crime to use or display threatening, abusive, or insulting words “within the hearing or sight of a person likely to be caused harassment, alarm, or distress thereby” (Public Order Act of 1986, §5, 1986).

10. The definition of “sexual harassment” in Harvard's policy goes beyond the definitions of Title IX and Title VII including harassment based on sexual orientation and gender identity. The policy's scope and definitions are so broad that a group of current and former Harvard law professors protest the policy as “inconsistent with many of the basic principles [they] teach” including fairness and due process. See also BostonGlobe.com (2014).

11. The Supreme Court has approved zones limited in time for unusual public safety reasons, but it is hard to imagine that a college campus is equivalent to a presidential nominating convention as in Marcavage v. City of New York [2012].

12. Among the commencement speakers whose invitations were rescinded in the most recent (2014) “disinvitation season” are Christine Lagarde (Smith College), Condoleezza Rice (Rutgers University), Robert Zoellick (Swathmore College), and Ben Carson (Johns Hopkins University).

13. Thus, when Jewish students at Barnard woke to see a pro-Palestinian banner hung in front of a campus building, they remonstrated claiming “emotional distress.” Barnard removed the banner.

14. Whatever the rights or wrongs of rescinding the offer of an appointment by the University of Illinois to Steven Saleita, it is interesting that the university president justified the actions on the grounds that they are a “university community that values civility as much as scholarship” (Illinois 2014).

15. In addition to this so-called “immaturity rationale,” the Court also advanced a need “to set high standards for student speech that is disseminated under its auspices” as well as a rationale of dissociation: that the school does not associate itself “with any position other than neutrality on matters of political controversy” (Hazelwood Sch. Dist. v. Kuhlmeier, 271–72 [1988]).

Additional information

Marshall J. Breger is a Professor of law at the Columbus School of Law at Catholic University of America. During the George H.W. Bush Administration he served as Solicitor of Labor, the chief lawyer of the Labor Department. During 1992 by presidential designation he served concurrently as Acting Assistant Secretary for Labor Management Standards. During 1987–1989 he also served as alternate delegate of the US to the UN Human Rights Commission in Geneva. He speaks and writes frequently on subjects including constitutional law, arbitration, foreign relations law of the United States, the Middle East peace process, and more.