Nancy Salvato, Senior Editor

Don’t Know What You’ve Got ‘Til It’s Gone
September 22, 2008

Editor's Note: In light of the discussion surrounding the nomination of Elena Kagan to the United States Supreme Court, NMJ Senior Editor Nancy Salvato suggests that we revisit her 2008 article "Don't Know What You've Got 'Til It's Gone," thoughts certainly relevant to the discussion surrounding Pres. Obama's current SCOTUS nominee.

"The people shall not be deprived or abridged of their right to speak, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable." -- James Madison

My mother used to say that it’s better to go from being poor to being rich than from having been rich and become poor because you don’t yearn for what you’ve lost. However, my experience has been that if you’ve always been free from want, you might not ever gain an appreciation for what was taken for granted. In any event, it wasn’t until I reached middle age that I began to understand what for me truly constitutes being rich and it wasn’t until 9/11 that I really gave much thought to how quickly it could be taken away.

During World War II, when peace and stability were shattered by acts of physical aggression initiated by the axis powers, Franklin Roosevelt gave a speech on what he referred to as the four freedoms.

"In the future days which we seek to make secure, we look forward to a world founded upon four essential human freedoms. The first is freedom of speech and expression...The second is freedom of every person to worship God in his own...The third is freedom from want, which...means economic understandings which will secure to every nation a healthy peacetime life for its inhabitants...The fourth is freedom from fear, which...means a world-wide reduction of armaments to such a point and in such a thorough fashion that no nation will be in a position to commit an act of physical aggression against any neighbor.” (1)

Today, there are millions of Americans who may live their entire lives taking for granted the freedoms secured by the founders and framers during the genesis of our country. When going through the motions of stepping into a hot shower, drinking an ice cold beer, or flipping through the channels of a big screen TV while reclining on the sofa in a temperature modulated home, many folks don’t dwell on what they have, but instead tend to focus on what they believe they need to make their lives more complete. It might be a Whopper, a hybrid car, or carpeting from Empire. It might be an all inclusive tropical vacation or an iphone. True, there were a few years when 9/11 knocked us out of our self-centered yet peaceable existence, but as each day passes without any notable incidents of terror on our soil, it is easy to become complacent and place our primary focus back on our immediate concerns. Unfortunately, we are not in a position to do this because whether we care to acknowledge it or not, we are at war.

On August 23, l996, Osama Bin Laden declared Jihad, when addressing the United States and its allies. He said,

"Terrorizing you, while you are carrying arms on our land, is a legitimate and morally demanded duty."

On February 23, 1998, Osama Bin Laden issued a fatwa to all Muslims.

"The ruling to kill the Americans and their allies -- civilians and military -- is an individual duty for every Muslim who can do it in any country in which it is possible to do it.”

The indisputable fact is that our country is waging war on many different fronts and our enemies are already on our soil. There are terrorist cells biding their time and waiting for their orders to attack. Of equal concern is the ideological battle being waged within the western world. Sadly, all of western civilization is losing ground.

The European Centre for Law & Justice ("ECLJ”), an international law firm dedicated to protecting human rights and religious freedom, believes that the "defamation of religion” resolutions introduced at the UN Human Rights Council and General Assembly violate international law concerning the rights to freedom of religion and expression. This is because these resolutions focus on the protection of ideas and religions generally, rather than on protecting an individual's right to practice their religion. (2)

Instead of using an objective measure, such as whether or not speech incites hatred or violence against religious believers, these resolutions use a subjective criterion, whether the religion or its believers feel offended by the speech. Granted, there is a right to freedom of religion, but there is no right not to be offended. Freedom of religion allows a person to act in accordance with a religion but does not protect religion from adverse comment. ibid

Article 18 of the Universal Declaration of Human Rights (UDHR), the model for international religious freedom law, states that everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. ibid

Article 19 of the UDHR provides the model language for the right to freedom of expression and opinion. 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. ibid

The Organization of Islamic Conference (OIC) countries developed the philosophy behind "defamation or religion.” The first of these resolutions was introduced by the OIC at the UN Commission of Human Rights in 1999 under the title "Defamation of Islam”, and new resolutions have been introduced at Human Rights Council since its inception in 2006, and in the General Assembly every year since 2005. ibid

Article 20 of the International Covenant on Civil and Political Rights (ICCPR), a United Nations Treaty adopted by the General Assembly, states that any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law. ibid

The problem with this language is that there are no clear guidelines with regard to laws that would set the least restrictive limitations to freedom of speech that would help to respect and protect the religious beliefs of individuals. According to Liaquat Ali Khan, an American Muslim scholar, defamation traditionally applies to reputational injury to individuals. Group defamation is problematic because it can stifle free speech and furnish undeserved protection to decadent customs and practices. The defamation of religions falls even beyond the concept of group defamation, since it may even prohibit the defamation of religious ideas and doctrines. ibid

"Thanks to its constitution, and especially the first amendment, the United States gives greater protection to freedom of expression than any other country. Free expression generally trumps libel, prejudicial comment about pending court cases, and so-called "hate speech”.” (3)

According to the New England Law Library’s Research Guide on the First Amendment, US Courts tend to punish symbolic or expressive action and acknowledge freedom of belief. (4) The evidence is as follows:

▪ Dawson v. Delaware, 503 US 159 (1992), the State introduced evidence at a capital sentencing hearing that the defendant was a member of a white supremacist prison gang, but because the evidence proved nothing more than abstract beliefs, the Supreme Court held that its admission violated the defendant's First Amendment rights. The Dawson Court stated that "the Constitution does not erect a per se barrier to the admission of evidence concerning one's beliefs and associations at sentencing simply because those beliefs and associations are protected by the First Amendment. ibid

▪ Barclay v. Florida, 463 US 939 (1983), the Court found that the evidence showed that a defendant's membership in the Black Liberation Army and desire to provoke a "race war" were related to the murder of a white man. Because the racial hatred of the defendant was relevant to several aggravating factors, the Court held that it could be taken into account in sentencing the defendant to death. ibid

▪ Wisconsin v. Mitchell, 508 US 476 (1993) synthesized these two opinions by clearly distinguishing between actions and beliefs. The Mitchell case held that a Wisconsin statute calling for greater maximum penalties where the defendant chooses his or her victim on account of race does not violate the defendant's First Amendment right to freedom of speech since it is not punishing the beliefs but the actions. ibid

The European Convention on Human Rights (ECHR) was adopted in 1950 to protect human rights and fundamental freedoms. All Council of Europe member states are party to the Convention (international agreement) and new members are expected to ratify the convention at the earliest opportunity. The Convention established the European Court of Human Rights. Any person who feels his or her rights have been violated under the Convention by a state party can take a case to the Court. The decisions of the Court are not automatically legally binding, but the Court has the power to award damages. (Click Here 5) and (Click Here 6)

"Under the European Convention on Human Rights, freedom of expression is subject to a wide range of possible restrictions, including national laws banning speech likely to incite or "stir up” hatred against people on the basis of race, ethnic origin, religion or sexual orientation. Iceland criminalizes speech that simply ridicules or insults someone on those grounds. Brazil, Singapore, Serbia, New Zealand and the Australian state of Victoria have similar race-hate laws.” (7)

In 2001, Britain proposed, "a ban on the "reckless” use of "threatening, insulting or abusive” language against anyone on the ground of his faith,” in response to, "verbal and physical attacks on Muslims.” ibid It was noted that unless there was an element of intent, the Bible or the Koran could be considered unlawful. Therefore, the country passed the Racial and Religious Hatred Act, which makes it, "a crime for someone to use threatening words or behaviour only "if he intends thereby to stir up religious hatred”.” ibid

Canada’s Supreme Court "ruled that the government may limit free speech in the name of goals such as ending discrimination, ensuring social harmony, or promoting gender equality. It also has ruled that the benefits of limiting hate speech and promoting equality are sufficient to outweigh the freedom of speech clause in the Charter of Rights and Freedoms, which is the country's bill of rights incorporated in the country's constitution.” (8)

I imagine there are more than a few US citizens who are unaware that, "Americans are subject to foreign, not United States, laws overseas,” and that, "few countries provide a trial by jury; pretrial detention is often in solitary confinement and may involve months of incarceration in prison conditions that lack even minimal comforts - bed, toilet, and wash basin; officials may not speak English and trials are conducted in the language of the foreign country; prison diets are often inadequate and require supplements from relatives and friends; and physical abuse or inhumane treatment is possible.” (9)

Remember what it was like for Charlton Heston to find that his spaceship has crashed on Earth but that it was now ruled by Apes and that he had no rights? While that was a work of science fiction, it must be a never ending nightmare to be subjected to the laws of nations that exhibit limited respect for the freedoms we take for granted in our own society. But this could happen.

"A Jordanian court is prosecuting 12 Europeans in an extraterritorial attempt to silence the debate on radical Islam." (10)

They have been charged with, "blasphemy, demeaning Islam and Muslim feelings, and slandering and insulting the prophet Muhammad in violation of the Jordanian Penal Code.” Relying on a 2006 amendment to the Jordanian Justice Act, "the law allows the prosecution of individuals whose actions affect the Jordanian people by "electronic means," such as the Internet.” ibid

Although Denmark and the Netherlands will not allow it to happen, Amman actually requested that Interpol apprehend Mr. Wilders and the Danes and bring them before its court "for an act that is not a crime in their home countries.” ibid Those charged will have to be very careful when travelling abroad. This is because the freedoms we take for granted are slowly eroding as basic human rights. Rowan Williams, the archbishop of Canterbury, said, "it is "unavoidable" that Britain will ultimately have to incorporate some elements of Sharia into its law in the spirit of "constructive accommodation."” (11)

Click Here to read about why Sharia is bad for all societies. (12)

Author Mark Steyn is currently under trial by the British Columbia Human Rights Commission in Vancouver, for insulting Islam in his book America Alone. The accuser, Mohamed Elmasry, head of the Canadian Islamic Congress, complains that Steyn's book, "tars entire Muslim communities as complicit in violent jihad.” (13)

There is a glimmer of hope that this can turn around. In response to Rachel Ehrenfeld, a New York-based author being, "sued for libel by an individual discussed in the author’s book about terrorism funding,” New York recently passed legislation which, "bars New York courts from enforcing a foreign libel judgment unless the country where it was decided grants the same or better protection as US standards for freedom of speech. Second, it expands an individual’s ability to have a court declare a foreign libel judgment invalid in New York. Without this statute, an author could be forced to live indefinitely under the pall of a libel judgment, deterring publishers from disseminating that author’s work.” (14) Yet it is not enough. Authors who do not reside in New York are vulnerable to foreign libel judgments. Our Congress and our President need to, "work together and enact federal legislation that will protect authors throughout the country against the threat of foreign libel judgments.” ibid

What does a Jihad or Fatwa really mean for the United States? It’s pretty simple, really. If we are not willing to fight back because we don’t understand or value our freedoms enough to wage war against those who have declared us their enemies, we will lose. "Don’t it always seem to go that you don’t know what you’ve got ‘til it’s gone. You pave paradise, put up a parking lot.” (15)