Court thins line between hate speech, free speech, while deepening European continental divide

Mural in Sofia, Bulgaria
(2019 photo by RJ Peltz-Steele CC BY-NC-SA 4.0)

A politician's racist hate speech and Holocaust denial were too readily protected by the freedom of speech in Bulgaria, the European Court of Human Rights opined in a February decision that challenges free expression and deepens tension between western and eastern Europe.

In litigation by Citizens Against Hatred and allied NGOs, plaintiffs sued in Sofia for harassment and incitement to discrimination.  Their target was Volen Siderov, a far right-wing politician, founder of the "Attack" party, who beat the drum of Bulgarian nationalism in two books and a speech to Parliament.  Siderov perpetuated denigrating stereotypes including that Jews manufactured the Holocaust as a scheme for financial extortion and that Roma people are "prone to crime and depravity."  His hate speech also targeted Turks, Catholics, and LGBTQ persons. 

Siderov's speech did not target individuals, nor call for any specific act of discrimination or violence.  The Sofia court ultimately dismissed the claims, unable to find that any one person had suffered injury or loss as a result of Siderov's vitriol.  The Sofia City Court and the Bulgarian Supreme Court of Cassation affirmed, holding, with reference to European jurisprudence, that Siderov's speech was protected by the freedom of expression.

In Strasbourg, the European Court of Human Rights held that the claimants had been denied a fair hearing in Bulgarian courts, a violation of their rights of dignity and freedom from discrimination under articles 8 and 14 of the European Convention on Human Rights.  Maybe Siderov's speech was protected expression under article 10 of the European Convention.  But the Bulgarian courts had been too quickly dismissive of the plaintiffs' claims.

"Expression on matters of public interest is in principle entitled to strong protection under Article 10 of the Convention, whereas expression that promotes or justifies violence, hatred, xenophobia or another form of intolerance cannot normally claim protection," the court explained.  "[I]t may be justified to impose even serious criminal-law sanctions on journalists or politicians in cases of hate speech or incitement to violence."

Volen Siderov
(Flickr by Nedko Ivanov CC BY 2.0)

The Bulgarian courts had not drawn an appropriate balance.  "Although the courts acknowledged the vehemence of the statements, they downplayed their capacity to stigmatise Jews as a group and arouse hatred and prejudice against them, and apparently saw them as no more than part of a legitimate debate on matters of public concern."

The decision strikes a note of discord in both westerly and easterly directions.  As a matter of free speech absolutism, American courts have been consistently resistant to regulation of hate speech.  Academics have twisted themselves into knots to reconcile the civil-rights-era First Amendment with a 1952 Supreme Court decision that momentarily sanctioned criminal libel based on race, color, creed, or religion.  Meanwhile, the First Amendment continues to be a perplexing problem for would-be regulators who link disinformation with populist nationalism of Siderov's ilk.

At the same time, the European Court decision is bound to aggravate a burgeoning resistance in Bulgaria, and throughout the east, to perceived western European cultural imperialism.  Bulgarian courts in 2018 ruled unconstitutional, and the Bulgarian Parliament was prepared to vote down, the Council of Europe convention on preventing and combating violence against women, "the Istanbul Convention" (Euractiv).  The politicization of an issue so seemingly uncontroversial is a story revealing of a deeper continental divide, and the court's strike against Siderov plays right into perceived grievances.

The case is Behar & Gutman v. Bulgaria, No. 29335/13 (Eur. Ct. Hum. Rts. Feb. 16, 2021) (LawEuro).

Child labor still plagues chocolate supply chain in West Africa, despite decade of distressing documentaries

From our dining room table, a chocolate bunny left over from the weekend is staring me down.  Two things are keeping me from biting off its smug head.  First, I just got back from a run of only a couple miles, and I feel like I'm breathing through a straw.

Second, earlier today, I watched Chocolate's Heart of Darkness, a study of child labor in the chocolate supply chain.  The 42-minute piece is free on YouTube, posted September 2020.

This English version is credited to German public broadcaster Deutsche Welle (DW), though the film originated with French independent documentary firm Premieres Lignes in 2019.  French journalist and filmmaker Paul Moreira directed.  On YouTube, Chocolate's Heart of Darkness appears as "Bitter Chocolate," which risks confusion, because that is the title of an equally disturbing but different project on the same subject: s2e05 of the Netflix documentary series, Rotten, directed by Abigail Harper and also released in 2019.

Both of these Bitter works update, with precious little progress to report, the sorry state of affairs captured in the 2010 documentary The Dark Side of Chocolate, which was co-directed by Danish journalist Miki Mistrati and American U. Roberto Romano, a photojournalist and human rights activist who passed away in 2013.

Cocoa I photographed in Ghana in 2020.
The DW film depicts industry reliance with some success
in certification tracking in Ghana, but not in Côte d'Ivoire.
(RJ Peltz-Steele CC BY-NC-SA 4.0)

In the last decade, I've refrained from recommending the 2010 docko to students or colleagues, because it's one of those films in which the makers' agenda so powerfully muscles in on the narrative that the viewer is left with reservations over objectivity.  But now, with two more projects in the same vein and all compasses pointing in the same direction, I think it's fair to discount nuanced indications of bias and say that Big Chocolate has a real mess on its hands.

Litigation against American agri-giant Cargill, a key broker in the global chocolate trade, and against Swiss-based multinational Nestlé, over child labor—practically, slavery—sits presently in the U.S. Supreme Court (Cargill, Nestlé at SCOTUSblog).  A decision, due any day, seems likely to kick the claims out for lack of U.S. jurisdiction under the alien tort statute, however much some Justices might have been troubled by what they heard in oral argument in December.

Even if the suits were to proceed in U.S. courts, or in any courts, Chocolate's Heart of Darkness gives a flavor of how hard the claims would be to prosecute.  Abusive child labor is so entrenched in West African forests, and nations such as Côte d'Ivoire so utterly incapable of establishing rule of law in these remote places, that it is scarcely imaginable that cocoa could be harvested any other way.  This is to say nothing of rampant deforestation to meet demand.

The film shows that the certification and tracking mechanisms set up with, let's give the benefit of the doubt, the best of intentions by the corporations to make good on sustainability pledges are so riddled with corruption as to be farcical.  It strains credulity to suppose that transnational companies do not know the reality.  But knowledge is not necessarily culpability.  And this is hardly the only supply chain that leads from Western fancy to catastrophic human toll in the developing world.

I don't think that my chocolate bunny is going to last the week.  But it's going to make me sick in more ways than one.

Alien tort animates U.S. lawsuit in abduction of 'Hotel Rwanda' hero, threatens immunity of social media

Paul Rusesabagina at the University of Michigan in 2014

(photo by Ford School of Public Policy CC BY-ND 2.0)

The alien tort statute has turned up more than usual lately in my newsfeed.  In two compelling appearances, the law is implicated in the criminal prosecution now underway in Kigali of "'Hotel Rwanda' hero" Paul Resesabagina, and it has a cameo in the section-230-reform show now playing on Capitol Hill.

Last week, Professor Haim Abraham, of the University of Essex School of Law, spoke to the Obligations Discussion Group, organized by the University of Oxford Faculty of Law, on his current working paper, "Holding Foreign States Liable in Tort."  Working at the intersection of torts and human rights, Professor Abraham is passionate about the problem of accountability for wrongs perpetrated by state actors.  His present work means to outline a policy framework to support state liability, and he made a reference in passing to the American alien tort statute (ATS).

Dating to 1789, the ATS, complemented by the Torture Victims Protection Act of 1991 (TVPA), is a principal legal avenue to liability for torts committed abroad.  ATS liability, though, runs up against serious hurdles, namely, the law's own vague scope, and foreign sovereign immunity.  On its own terms, the ATS only pertains when a wrong rises to a violation of international law or treaty, often imprecise benchmarks.

The enigmatic 18th-century enactment says little else.  Especially in recent decades, the U.S. Supreme Court has grown fastidious in its interpretation of the law, rejecting claims without sufficient nexus to the United States.  Meanwhile, ATS plaintiffs must take care to pursue wrongdoers as rogues, lest defendants present as state actors entitled to foreign sovereign immunity.  The TVPA was a mitigation of that latter limitation.

Sharing Professor Abraham's appetite for accountability, not to mention my self-interest in full employment for torts professors, my attention is captured anytime the ATS turns up in a way that might yield fresh fruits.  And so it has.

Graves of genocide victims in Rwanda in 1995
(photo by Gil Serpereau CC BY-NC-ND 2.0)

The New York Times, among others, has reported on the shady chain of events that led to the presently ongoing criminal trial in Kigali of Paul Resesabagina, the man who saved some 1,200 lives during the Rwandan genocide in 1994 and whose story was turned into a major motion picture starring Don Cheadle.  Living outside Rwanda first in Belgium and then in the United States, Resesabagina has been an outspoken critic of Rwandan authorities, both as to the genocide and as to subsequent Rwandan foreign policy, including alleged involvement in war crimes in the Democratic Republic of Congo.  He knew better than to return to Rwanda, but, reports state, Resesabagina thought he was on a plane to Burundi for a speaking engagement when the plane landed in Kigali, and he was placed under arrest on terrorism charges.

There's plenty to debate about the criminal matter in Rwanda, but my focus here is on events back home.  Rusesabagina's family in San Antonio, Texas, in December 2020, sued GainJet and Constantin Niyomwungere in federal district court under the ATS and TVPA, and in Texas tort law on counts of fraud, false imprisonment, intentional infliction of emotional distress, and civil conspiracy.  GainJet is the company that conveyed Rusesabagina from his Dubai layover to Kigali, and the family alleges that Niyomwungere, a purported pastor who invited Rusesabagina to to speak in Burundi, was in fact a secret operative of the Rwandan government.

The pleadings mean to represent the abduction as a violation of international law, besides common law torts, and to bring the case within the scope of the TVPA, too.  The complaint characterizes the abduction of Rusesabagina as "extraordinary rendition" and charges the defendants with torture of Rusesabagina upon or after his landing in Kigali, stating that he was kept bound, blindfolded, and gagged for days and "physically and psychologically tortured" in interrogation.

GainJet B757 ascending from Coventry, England, in 2015

(photo by Rob Hodgkins CC BY-SA 2.0)

Niyomwungere is characterized alternatively as a state actor or a free agent working with the state, to deal with immunity on that front.  Either he was a state actor, in which case the state would have to concede its role in the abduction, or he was a rogue, subject to tort liability (if he can be brought within U.S. jurisdiction).  The complaint furthermore alleges that GainJet, a private charter company based in Athens, Greece, was a knowing co-conspirator with the Rwandan government, so the GainJet pilot and co-pilot, knowing what was afoot, failed to signal an emergency in the air.  The complaint catalogs GainJet commercial outreach to Rwanda and speculates that the firm was anxious for work amid the Greek economic debacle.

The complaint asserts that the matter in sum sufficiently "touches and concerns the United States" to satisfy Supreme Court requirements, because the defendant-conspirators reached out to Rusesabagina at his Texas residence to lure him abroad.  That by itself is a thin reed, but the U.S. residency of the plaintiffs bolsters the nexus.

Meanwhile, in Washington, D.C., Senate Democrats are circulating a proposed bill that would carve out some slices of Internet service providers' infamous tort immunity under section 230 of the Communications Decency Act of 1996.  Section 230 reform has become a bipartisan cause since both Democrats and Republicans, often for different reasons, have sought to blame social media companies for our present national discontent, whether for not censoring enough or for censoring too much.

The proposal does not represent a wholesale repeal and reinstatement of conventional publisher liability in tort, as some congresspersons called for.  Among proposed new immunity exceptions are actions in civil rights law, antitrust law, "stalking, harassment, or intimidation laws," wrongful death, and, lo and behold, "international human rights law," specifically, the ATS.

The theory behind the proposal as to the ATS is that social media companies over which the United States has jurisdiction could be held liable for having facilitated human rights violations abroad.  As Lauren Feiner observed for CNBC, this measure

could be particularly risky for Facebook, which acknowledged in 2018 that it was “too slow to prevent misinformation and hate” on the platform as Myanmar military officials sought to weaponize it in what became characterized as a genocide against the minority Rohingya Muslims. The SAFE TECH Act would clarify that Section 230 immunity should not bar suits under the [ATS], which could allow survivors of the genocide in Myanmar to bring cases against the platform in the U.S.

People displaced by violence in Myanmar in 2012
(photo by UK Department for International Development CC BY-SA 2.0)

Myanmar would be only a starting point, as social media, including Facebook's WhatsApp, have been blamed for eruptions of violence around the world, notably including mob violence in India (which I talked about at a Dubai event in 2019 sponsored by India-based Amity University).  Plaintiffs would face the usual high hurdles of the ATS, including the international law requirement and the requisite U.S. nexus, as well as hurdles in conventional tort law, such as duty and proximate causation.  But it's not hard to imagine plaintiffs surviving dismissal to see discovery.  Even without further process, discovery would be a boon to human rights advocates.

Over its centuries of life on the books, the alien tort statute has been counted out as a dead relic, resurrected as a reputed redeemer, and wrangled as a menacing mischief-maker.  What seems certain now, whether under the ATS, TVPA, or instruments yet to be devised, is that in our smaller world, the challenges of legal accountability for both states and corporations for transnational misconduct cannot be written off easily as beyond the scope of national concern or domestic jurisdiction.

The case in Texas is Rusesabagina v. GainJet Aviation, S.A., No. 5:20-cv-01422 (W.D. Tex. filed Dec. 14, 2020).  At the time of this writing, PACER shows no activity since filing.

The section 230 reform bill was introduced in the Senate, 117th Congress (2021-2022), on February 8, 2021, as S.299.

Tort liability brakes U.S. policy shift on Sudan, marks crossroads of past, future where Africa meets Arabia

Street corner in the Arabian Market district of Khartoum
(RJ Peltz-Steele CC BY-NC-SA 4.0)

With economic sanctions exacting an intensified toll amid the pandemic and humanitarian crises fraying the peace at political borders, 40 million people in the East African Republic of Sudan may hope that long awaited normalization of relations with the United States will bolster stability and produce prosperity.  Meanwhile, in Washington, American tort claims have thrown a wrench into the diplomatic works.

Smaller Sudan after 2011 (LouisianaFan CC BY-SA 3.0)

Unending War

Before its 2011 division into north and south, Sudan was the largest country in Africa.  Its location is strategically important.  Sudan borders Libya and Egypt to the north, the lifeline of the Nile flowing into the latter.  The country's Red Sea coast positions Port Sudan opposite Jeddah and Mecca.  Chad and the Central African Republic (CAR) sit to the west, and Eritrea and Ethiopia to the east—where more than 40,000 Ethiopian refugees have fled conflict and now strain Sudan's thin resources.  Tumultuous northern regions of the Democratic Republic of the Congo (DRC) and Uganda, the latter yielding the Nile, lie in reach of South Sudan's capital, Juba, along with a disputed stretch of border with Kenya.

At last abandoning imperial ambition in 1953, the British left Sudan to the tempest of regime rise-and-fall that tragically characterized post-colonial power vacuum in Africa.  The country declared itself independent in 1956, but for a quarter century, no one form of government would stick.  An Islamic state brought about some political consistency in 1983, but plenty of ills, too: reigniting civil war between north and south, and paving the path of three decades' dictatorship and an abysmal human rights record under President Omar al-Bashir, from 1989 to 2019.

Part of embassy bombing memorial in Dar es Salaam

(RJ Peltz-Steele CC BY-NC-SA 4.0)

Relations with the United States went from bad to worse after Sudan backed Iraq in the 1990-91 Gulf War.  Osama bin Laden took up residence in Khartoum for five years at that time.  He built a favorable reputation for philanthropy by building legitimate businesses and financing infrastructure projects, such as the main highway, named for him, linking Khartoum to Port Sudan.  In 1993, the United States listed Sudan as a state sponsor of terrorism.  Under U.S. pressure, Sudan expelled bin Laden in 1996.  But Sudan was not spared blame when al-Qaeda bombed the U.S. embassies in Tanzania and Kenya in 1998, killing 224 people, including 12 U.S. citizens, and injuring thousands.  U.S. retaliation included a cruise-missile strike against a Khartoum chemical plant—unfortunately and very likely a target accused erroneously of complicity in chemical weapons manufacture.

Ironically, the bin Laden-orchestrated terror attacks of September 11, 2001, set Sudan and the United States on a winding road of fits and starts toward reconciliation.  U.S. President George W. Bush recognized the need for American allies on the East African doorstep to the Middle East.  U.S. policy leveraged austere sanctions to incentivize Sudanese cooperation in counter-terrorism, and the Bashir regime was supportive.

Sudan needed help, too.  The civil war between the Islamic government in Khartoum and the Sudan People's Liberation Army (SPLA), started in 1983, had never ended.  The exhausting conflict, which ultimately cost more than 2 million civilian lives, was dragging into one of the longest civil wars in modern history—besides that it was really a sequel to the never-quite-resolved first Sudanese civil war of 1955 to 1972, another tragically typical consequence, in part, of arbitrary colonial political borders.  Multi-national diplomatic interventions helped at last to draw the war to a close in 2005.  The peace agreement led to the secession of South Sudan in 2011, a development that seemed promising at the time, but since has seen the two states teetering ceaselessly on the brink of combustion.

A spellbinding sampling of the human toll of the civil war can be found in Dave Eggers's What Is the What: The Autobiography of Valentino Achak Deng (2006).  Spanning events from 1983 to 2005, the book is an artfully novelized memoir of a real child refugee among Sudan's "lost boys."

In 2017, the Obama Administration further loosened sanctions on Sudan.  A coup in 2019 sent Bashir from office the same way he came in, and in 2020, Sudan reconstituted itself as a secular state.  Al-Bashir, 76, is now in prison for corruption.  Marking a significant policy reversal, the government has signaled that it might be willing to turn Bashir over to the International Criminal Court for prosecution in connection with the genocide in Darfur during the second civil war.  In October, the Trump administration moved to clear the way for U.S. businesses to reenter Sudan, bargaining the country's de-listing as a state sponsor of terrorism in exchange for Sudanese recognition of Israel.  The administration was accused of too-little-too-late effort to bolster its foreign policy portfolio in the run-up to the 2020 election, but, at this point, the end means more than the motive.

Persistent Perseverance

In short order, Sudan has transformed from war-torn religious state, ruled by a dictator accused of crimes against humanity, to secular constitutional democracy, pivotal in Middle East peace and primed for western commercial investment.  In other words, Sudan might be in the midst of a remarkably rapid transition from paradigmatic problematic state to African success story.

View of Khartoum and the Nile from Corinthia observation level
(RJ Peltz-Steele CC BY-NC-SA 4.0)

Long acquainted with the hardships of war and sanctions, the Sudanese have persevered, developing a resilient infrastructure and an enviable standard of living, especially relative to neighbors such as the CAR, the DRC, and Eritrea.  Sudanese teens wield smartphones in the dustiest of wayside villages.  Sudan has oil and refining capacity, though the division of natural resources between north and south remains a key cause of simmering contention.  The Khartoum skyline is dotted with structures infamously financed by deliberate defiance of sanctions.  Representative is the Corinthia Hotel: opened in 2008, the oval-shaped building is called "Gaddafi's egg," because Libya paid for its €80m construction.

Wayside fuel and rest area, Shendi-Atbara Road, Al Buqayr
(RJ Peltz-Steele CC BY-NC-SA 4.0)

At present, Sudan has one arm tied behind its back.  Trucks sit idle in fuel queues.  Western credit cards don't work; cash is king.  For better and worse, local products, mostly MENA-manufactured, substitute for the usual globalized glut of soda and snack options in the convenience stores, excepting the universe's inexplicably irreducible constant, Coca-Cola.

If sanctions go away, an energizing flow of auto parts, industrial equipment, transnational banking services, and development of telecommunication and physical infrastructure will irrigate Sudan's thirsty landscape.  The new constitutional government will be boosted to a threshold on prosperity unprecedented in the nation's history.  Already in June, the UK announced a £150m commitment to ease democratic transition and coronavirus impact by combating inflation and poverty.  Sudan unbound stands poised to achieve African development in a region that's long been starved of a win.

But There's a Hitch

Tort liability in U.S. courts is presently a sticking point in negotiations over normalization of U.S.-Sudanese relations and the entry of American enterprise in Sudan.  In 1996, Congress amended the Foreign Sovereign Immunities Act (FSIA) to allow civil lawsuits against foreign state actors for support of terrorism.  Survivors and families of victims of the 1998 embassy bombings sued Sudan in 2001.  The lawsuits floundered in the 20-aughts amid confusion over what plaintiffs, defendants, and causes of action Congress intended to authorize.  In 2008, Congress clarified the law on those questions and revived the earlier suits.

Subsequently, plaintiffs, numbering more than 700, won an award in federal court of $10.2bn, including $4.3bn in punitive damages.  The D.C. Circuit struck the punitive damages, doubting that Congress intended to authorize punitive recovery retroactively.  In May 2020, in Opati v. Republic of Sudan, the U.S. Supreme Court disagreed, vacating the striking of punitive damages and remanding for the lower courts to reconsider.  Litigation questions remain on remand.  The defense might yet challenge the constitutionality of the retroactive authorization of punitive damages, and it's not clear whether Congress intended foreign plaintiffs to be eligible for punitive awards.  Still, the massive compensatory award stands ripe for harvest.

Sen. Schumer in October (Senate Democrats CC BY 2.0)

All that litigation might, however, amount to naught if Congress acts again.  As a condition of the current agreement over sanctions and Israel, Sudan wants free of the Opati judgment.  In October, the State Department indicated willingness to negotiate immunity for Sudan against liability for past acts.  But that immunity would require another change of law, and Congress is not yet on board.

According to a report in Tuesday's New York Times, Sudan has offered a settlement of $335m, undoubtedly a more realistic number than multiple billions.  But Sudan has threatened to exit the agreement in whole if Congress doesn't authorize immunity by year's end.  Deadlocked legislators are trying to broker a compromise through a military spending bill in these first weeks of December.  To the displeasure of some in Congress, the working proposal would compensate U.S. citizens naturalized subsequently to the 1998 attacks less than those who were citizens at the time—working a de facto racial disparity.

Even if the 1998 claims can be resolved, a bigger hurdle looms in the prospect of blanket immunity-to-date for Sudan.  While Sudan did defend the embassy-bombing lawsuits on grounds of FSIA interpretation, it has not responded to the legal claims of, The Hill estimates, about 3,000 family members of September 11 victims who blame Sudan for bin Laden's five-year safe harbor there.  According to the New York Times story, those plaintiffs have the support of Senate leader Chuck Schumer (D-NY) to see that their claims are not extinguished.  It seems unlikely that a closely divided Congress would have any appetite to favor foreign tranquility over September 11 victims, no matter how much U.S. businesses are chomping at the bit to trade in Sudan.

Local heroes (with a smartphone) atop Jebel Barkal
(RJ Peltz-Steele CC BY-NC-SA 4.0)

Last Week in Sudan

Here in the United States, if we hear about Sudan, it's likely to be in the context of civil war atrocities, the human rights abuses of the Bashir regime, or Middle East tensions.  Yet last week in Sudan, I saw little evidence of those worldly matters.  On the roads of Khartoum, in the markets, and in the countryside, I found only a gracious and warm people, a rich Nubian cultural tradition, and a stunning archaeological record of our shared human heritage.

Your interpid blogger at the Nuri Pyramids
(Steven Mueller CC BY-NC-SA 4.0)

Both of those views, the ugly and the beautiful, the grim and the genial, are Sudan.  We disregard the former at our hazard.  But to disregard the latter, we risk much more.

Sudan is the beating heart of the African continent.  Sudan will not forever be deterred by colonial legacy and the politics of aging superpowers.  However we manage to balance redress for past wrongs with a way forward, America will have to decide how to be a part of Sudan's future.  The only alternative will be to join the crumbling desert relics of Sudan's past. 

UPDATE, Dec. 13, 2020: See Conor Finnegan, Trump admin offered $700M to 9/11 victims to save Sudan deal, ABC News, Dec. 11, 2020.  UPDATE, Dec. 20, 2020: Sudan's Listing as Sponsor of Terrorism Ended by US, BBC, Dec. 14, 2020.

Tort litigation as means to truth about the Troubles, authors propose; approach parallels access theory

A new article from researchers in Newcastle, England, posits the use of tort litigation to exonerate the right to truth in relation to the Troubles in Northern Ireland.

The authors are Conall Mallory, University of Northumbria at Newcastle,  Sean Molloy, Newcastle University, and Colin Murray, Newcastle University Law School.  Their article is Tort, Truth Recovery and the Northern Ireland Conflict, forthcoming 2020 in the European Human Rights Law Review and available on SSRN.  (Hat tip @ Steve Hedley, Private Law Theory.)  Here is an excerpt of the abstract.

Northern Ireland has no effective process to address [the] legacy of the human tragedy of decades of conflict. And yet during that conflict, and especially in the years since the Belfast/Good Friday Agreement 1998, people have employed multiple legal mechanisms to gain information about events which affected them and their loved ones.... One under-explored element of this complex picture is use of tort in legacy cases. Civil actions, supported by legal aid funding in Northern Ireland, provide a potential avenue for the discovery of information held by public bodies. Even unsuccessful actions can thus contribute new information about the events in question. Many of the harms inflicted during the conflict were torts as well as crimes, and this article assesses the extent to which these civil actions provide an ersatz mechanism for truth recovery, and challenges efforts to curtail such actions as a "witch-hunt."

Derry clash, Apr. 1971 (N. Ire. public record)

The right to truth is a piece in the puzzle of truth-and-reconciliation strategies as they have been implemented with variable success in post-conflict venues around the world.  The strategies are predicated on the notion that the revelation of truth has value in of itself to victims and survivors.  The conventional legal system, focused as it tends to be on compensation, often accomplishes nothing when compensation fails to materialize, or even nothing in the way of meaningful remedy if compensation does happen.  Thus truth proceedings are regarded as a hallmark legal innovation to clear the decks and allow peoples and nations to move forward.  So well regarded is this principle that human rights instruments and institutions have come to recognize "the right to truth" as a human right, a necessary corollary to the right to life.

In this article, the authors lament that there has been no effective, systematic truth process following the Troubles.  To the contrary, they posit, the U.K. government has as often thrown up roadblocks to truthful revelation.  A patchwork of legal mechanisms has nonetheless allowed truth to surface, they explain, and they review the efficacy of legal actions such as human rights litigation and information requests under the U.K. Freedom of Information Act.

Tort litigation offers another, as yet underutilized avenue, they propose.  For reference, they point to the Alien Tort Statute in U.S. jurisprudence, though, I add, it has lately fallen on hard times in the U.S. Supreme Court; and they point to U.K. agreements in recent years to pay claimants in Kenya and Cyprus in compensation for violent colonial suppression in the 1950s.  Survivors of the Troubles, even those who were children at the time, may press tort claims, such as battery, trespass, and civil conspiracy, against violent actors in the Troubles, whether British security officials, IRA fighters, or other paramilitarists.

British Army patrol in Kenya during 1950s Mau Mau Uprising
(Imperial War Museums)

Tort litigation in the proposed vein is not a new idea, but stumbles amid many hurdles, not the least of which is sovereign immunity.  But immunity can be overcome in actions against persons, whether non-governmental or gone rogue.  And there is ample evidence of both in the history of the Troubles.  An IRA defendant, for example, may be a purely private actor, and a British official who inflicted violence might be sufficiently dissociated from government policy as to negate immunity.  There's a fine line anyway between tort litigation and human rights claims, see Stefan Somers's whole book on the subject, the two more or less coinciding in the United States in the area of "constitutional tort."

Anyway, the authors claims, the plaintiffs in these tort actions do not actually have to win; they just have to survive dismissal to get to discovery.  Because their aim, remember, is truth, not compensation.  So the authors are really proposing that tort litigation be used for its discovery methods, regardless of the outcome of the case.  They moreover suggest that the litigation might shake loose answers from the government to avoid the prospect of compensation, or at least the cost of litigating, and they illustrate that having happened already in select cases.

The idea of using tort litigation for its discovery mechanism rather than with the aim of compensation is dicey, but not wholly objectionable.  Ethically a lawyer should not file an action that isn't winnable upon some rational theory.  But these cases wouldn't fail that test; there's no rule against having a multitude of aims in the fight, even if you think you'll lose on decision.  Of course, American tort lawyers are often criticized (whether it's true or not, discussion for another day) for playing fast and loose with that understanding, using the litigation process and its hefty transaction costs to shake down defendants on barely credible claims.  Here at least the aim is truth, rather than a pay day, so an aim with some sanction in civil rights.

The proposed litigation strategy reminds me of the work I've been doing lately (e.g., U.S. reform proposal) on the freedom of information, or right to access to information, in South African law.  There, a provision of law allows access to private sector records upon stringent prerequisites, namely, the exoneration of human rights.  The right to truth is one right that should fit that bill, a co-author and I have posited (abstract on SSRN, blog).  In a conventional South African FOI case, the courts allowed access to the records of a public steel company to investigate the exploitation of Apartheid labor.  It's a short leap from there to investigation of a private company with similarly sinister secrets.

Moreover, the South African courts have put some mileage on the private-sector-access law as a tool for "pre-discovery," before tort litigation is filed, to help a would-be plaintiff test the evidentiary waters.  That approach can only make litigation more efficient, more than one South African court has reasoned, by filtering out non-viable causes.

Those twin rationales, the right to truth and the validity of pre-discovery, seem incidentally to countenance the repurposing of tort law to the aim that Mallory, Molloy, and Murray here propose.  A comprehensive and government-sponsored approach to truth-finding would be more satisfying to those of us who like to call something what it is.  But maybe this is a way that tort law can exert policy pressure to bring about, in time, a coherent legal approach to the right to truth.

UK football letter roils world sport, and real world, too

Letter posted on Twitter by the AP's Rob Harris

The English Premier League football (soccer) organization wrote to the U.S. Trade Representative in February urging that the United States put the Kingdom of Saudi Arabia on the "Priority Watch List" of countries that fail to protect intellectual property (IP) rights.

The letter has been widely reported beyond the football world for its potential implications in foreign affairs.  Where the United States is concerned, IP piracy is regarded as a critical contemporary problem, on par with national security.  Much of that regard is warranted, as countries such as China, at least historically, have been linked to IP theft as a means to unfair economic advantage, to the detriment of American enterprise.  Some of the sentiment derives from the capture of Washington by IP-wealthy corporations, to the detriment of intellectual freedom.  Regardless, the gross result has been a paper war with nations that countenance IP piracy.  To put Saudi Arabia in those U.S. crosshairs adds a layer of complexity to our already impossibly complicated love-hate relationship with the KSA—read more from James Dorsey just last week—with ramifications from Yemen to Israel.

The letter has potential ramifications within the Middle East, too.  The Premier League's indictment calls out specifically a Saudi-based pirate football broadcaster that calls itself "beout Q" and seems to operate in a blind spot of Saudi criminal justice, even distributing set-top boxes and selling subscriptions in Saudi retail outlets.  The name seems to be a thumb in the nose of beIN Sports, a Doha-based, Qatari-owned media outlet with lawful licensing rights to many Premier League and other international sporting matches.  Saudi Arabia has led the blockade of Qatar since the 2017 Middle East diplomatic crisis, a high note of previously existing and still enduring tensions between the premier political, economic, and cultural rivals in the region.

A 2016 Amnesty International report
was not flattering to Qatar or FIFA.

Football and international sport are weapons in this rivalry.  Qatar has long capitalized on sport as a means to the end of soft international power, winning the big prize of the men's football World Cup in 2022, if by hook or by crook.  Saudi Arabia has more lately taken to the idea of "sportwashing" its image, especially since the Jamal Khashoggi assassination and amid the ceaseless civil war in Yemen.

The letter roiled the world of football no less, as Saudi Arabia has been in negotiation to acquire the Newcastle United Football Club.  That purchase requires Premier League approval.  So everyone and her hooligan brother has an opinion about what it means that the league is so worked up about Saudi IP piracy as to write to the United States for help.

This unusual little letter is a reminder of a theme, known to social science and as old as the Ancient Olympics, that, more than mere diversion, sport is a reflection of our world.

Informe costarricense mixto sobre libertad de expresión: tribunales presionan por transparencia; ley se mueve contra discurso de odio, desinformación

[English translation by Google.]

Desde la perspectiva norteamericana, Costa Rica ha sido aclamada durante mucho tiempo como un modelo de democracia en las Américas. Eso es lo que me llevó a enfocarme en Costa Rica para estudios universitarios en periodismo comparativo, y fue así que desperté un amor por el país. Es importante destacar que San José opera como la sede de la Corte Interamericana de Derechos Humanos. La afinidad de Costa Rica con los Estados Unidos se remonta en los tiempos modernos a la transformadora y ahora legendaria primera presidencia de Óscar Arias en la década de 1980 (sin dejar de mencionar las recientes acusaciones, e.g., Time). Si hoy es cierto, en algún sentido, que Costa Rica está a la vanguardia de los derechos humanos regionales, entonces vale la pena ver los acontecimientos en Costa Rica como un referente.

Un nuevo informe exhaustivo sobre la libertad de expresión y la libertad de información en Costa Rica ha sido emitido por el Programa de Libertad de Expresión y Derecho a la Información y el Centro de Investigación de Comunicación de la Universidad de Costa Rica (HT@ Observacom). En general, este informe revela un sistema legal que lucha con problemas que son familiares en otros países—por ejemplo, el acceso público y periodístico a las plataformas de redes sociales cuando un político aparentemente elige hacer negocios allí. Un informe de este tipo no es único en las Américas (mira, e.g., México 2019), y este no es el primero de Costa Rica; admito que me atrajo debido a la coincidencia de algunos problemas que me interesan, incluso colegiación de periodismo, mencionados a continuación.

El primer capítulo del informe (y el único que he leído) está escrito por la abogada, periodista, y académica, Giselle Boza Solano. Boza concluye con preocupación que no ha habido movimiento legislativo en Costa Rica para garantizar la proliferación de las diversas voces en la era de internet, donde el mercado del discurso y la elaboración de la política del habla están cada vez más dominados por los grandes proveedores de servicios, como Google. Su preocupación está sincronizada con los movimientos en Europa, con Francia a la cabeza, y en América Latina, con Uruguay como organizador. Costa Rica parece ser próximo en esta lista. Sin embargo, Boza, y el informe, reconocen y examinan las iniciativas para financiar los esfuerzos cinematográficos y audiovisuales con un impuesto a las plataformas digitales y la televisión por suscripción.

Corte Interamericana de Derechos Humanos
(foto por Eli NW CC BY-NC-SA 2.0)

Además, me anima el comentario de Boza sobre la jurisprudencia costarricense. Si la selección es indicativa, los tribunales, en la mayor parte, parecen mantenerse a la par con su compromiso histórico con las libertades de expresión e información. En el área de libertad de información, el Tribunal Constitucional dictó decisiones que facilitan el acceso electrónico a datos meteorológicos y el registro electrónico de la policía en lugares públicos. Los tribunales dictaron decisiones que facilitaron el acceso de los ciudadanos al proceso legislativo y a la legislación. La inclinación por los legisladores a retirarse a la oscuridad en nuestros tiempos difíciles parece ser una norma universal.

El Tribunal Constitucional también reprendió al Colégio de Periodistas por afirmar una provincia exclusiva sobre el derecho a llamarse a sí mismo periodista, ante la queja de un periodista digital sin el título universitario, como se requiere. El tribunal reiteró la consecuente opinión consultiva de la Corte Interamericana de Derechos Humanos de 1985, incluso antes de que el periodismo digital existiera propiamente. Es bastante sorprendente que esto todavía sea algo que deba adjudicarse 35 años después. (Escribí sobre este caso cuando era estudiante en 1993 y, para ser justo, la situación es un poco más complicada de lo que parece en la superficie. Aún así….)

Hay motivos de preocupación más allá de la falta de impulso para la libertad de internet. El proyecto de ley mejoraría o aplicaría el castigo penal por el discurso de odio y la difusión de desinformación ("noticias falsas"). Tales leyes se encontrarían en conflicto contra la libertad de expresión. Costa Rica ciertamente no es el único país con tales propuestas sobre la mesa, pero, nuevamente, esto es problemático en una democracia de vanguardia.

Eso es solo el capítulo 1. El informe presenta un análisis cuantitativo de la autopercepción de los medios, y, también, capítulos sobre publicidad, violencia contra las mujeres en las noticias, y más. La publicación es el II Informe sobre el estado de la libertad de expresión en Costa Rica (2020) (descargar por capítulo).

Muchas gracias a mi editor en español, Ricardo Serrano, politólogo, periodista, estudiante de derecho, y creador de contenido electrónico.  Los errores son todos míos.

Kids everywhere play

Kids find innocent fun in the toughest of living conditions. It's a reminder that soulful joy doesn't come from worldly things.

In the photo at left, kids in Ganvie Lake Village in Benin wanted to see themselves on the screen of my little camera. Ganvie has an unusual history tied to the Portuguese slave trade; read more at Atlas Obscura. Photo by my traveling mate, Dylan Armstrong. By the way, RI/South Coast US readers, you can catch Beninese world music Grammy winner Angelique Kidjo at The Vets in Providence, R.I., on February 22. Meanwhile watch her fabulous performance on YouTube.

The photos at right and below are from in and around Jamestown, a community in Accra, Ghana. This village was an NAACP stop for the 2019 Year Of Return (WBUR), and its Old Fort is one of the string of forts and castles that memorializes the horrific suffering inflicted on "the slave coast." Two boys I met on the street, one wearing a US Soccer shirt, were experimenting with a kite they had made out of plastic and wood debris and electrical tape. In Jamestown, ever smiling Masha was my tight-gripping companion. Both photos are mine, CC BY-NC-SA 4.0, taken with permission of their subjects.

Polish court enjoins Facebook 'private censorship': just one sign of new norms in digital rights

Much worry about censorship today focuses on the private sector, specifically and especially the large tech companies--Google, Facebook, Twitter--who have so much power over what we read, hear, and see.  When I was in journalism school, in ethics class in the early 1990s, a student once mentioned the possibility of a news organization withholding a sensitive story and worried that that would be "censorship."  Professor Lou Hodges--a great teacher, great person, since deceased--vigorously corrected the student, saying that censorship by definition must be governmental action. 

Louis Hodges, W&L

Well denotational niceties aside, and with the great respect due to Professor Hodges, I'm not sure the distinction remains salient.  I've been worried about the private sector in the free speech realm for a long while.  I've already posited in print that the greatest looming threat to the freedom of information around the world today is not government, but private corporations, and I've started writing about what can be done (what already is being done in Africa, relative to: the United States, India, and Europe, forthcoming).  Indeed, even the classical distinction between freedom of expression and the freedom of information has lost much salience in the information age.

In the United States, for good historical reasons, our constitutional law draws a sharp line between the freedom of speech and the freedom of information, and also between state action, "censorship," and private action, so-called "private censorship."  Both of those lines have eroded in the real world, while our law stubbornly insists on them.

Foreign constitutional systems, such as the European and African human rights regimes, do not come with the historical baggage that carved these lines in U.S. constitutional law.  These younger systems are proving more adept at navigating the problem of private action that would suppress speech and information.  That flexibility has meant full employment for lawyers in the counsel offices of Big Tech.

It also means that the law of the internet and the law of digital rights is no longer being authored in the United States.

In Poland, a digital rights organization called the Panoptykon Foundation--I assume named for the legendary imaginings of English philosopher Jeremy Bentham--is litigating without shame against Big Tech, Google and Facebook included.  In a suit against Facebook, Panoptykon has taken up for "SIN," an (acronymed appropriately if coincidentally?) anti-drug NGO in Poland.  SIN apparently suffered content-based take-downs and blocks on Facebook.  It's not clear why Facebook (algorithms? censors?) targeted SIN, though TechCrunch speculated that it might have to do with SIN's strategy on drug counseling: more of a "use responsibly" approach than an abstention-only approach.

The action is based on Polish statute, which guarantees freedom of speech and does not get hung up on any American-style state-action limitation.  In June, a Warsaw court ex parte ordered (in Polish, via Panoptykon) Facebook to stop blocking or removing any online SIN content, pending litigation.  Technically the respondent in the case is Facebook Ireland.  But one can imagine that American Facebook execs are on alert, as foreign courts fuss ever less over the public-private distinction.

Professor Hodges might roll over in his grave to hear me say it, but I am confident that "private censorship" will be the free speech story of the 21st century.  America will be dragged into a new world of legal norms in digital rights, willingly or not.  I would rather see us embrace this new world order and confront the problem of a runaway private sector than see our civil rights law relegated to legal anachronism.

Read about SIN v. Facebook at Panoptykon.  Hat tip @ Observacom.

'Genetically modified humans are among us'

An alum of my constitutional law class, Paul Enríquez, J.D., LL.M., Ph.D.—Structural and Molecular Biochemistry, is doing some stellar academic work at the cutting edge of genetic science and law and policy.  He privileged me with a sneak peak at his latest contribution to the legal literature, now available on SSRN, Editing Humanity: On the Precise Manipulation of DNA in Human Embryos, forthcoming in 97 N.C. L. Rev. Here is the abstract:

Genetically modified humans are among us. Emerging technologies for genome editing have launched humanity into the uncharted territory of modifying the human germline—namely, the reproductive cells and embryos that carry our genetic ancestry. Reports of the first live births of humans with edited genomes in China recently confirmed that the power to manipulate our genes at an embryonic stage is no longer theoretical. In the wake of enormous scientific progress, questions regarding how the law will treat this technological breakthrough abound.

This Article examines the legality of human genome editing, specifically germline genome editing (“GGE”), from administrative and constitutional law perspectives. It argues that the Food and Drug Administration’s (“FDA” or “Agency”) forbearance in claiming jurisdiction over GGE is creating a perilous void for an emerging field of law. At the same time, the contemporary de facto legislative ban on GGE clinical applications, which categorically prohibits the Agency from evaluating the safety and efficacy of any investigational new drug or biological product application derived from the technology, is unnecessary and creates more societal costs than benefits. On a broad scale, the ban embodies poor public policy because it prevents the FDA from exercising jurisdiction over matters that constitute extensions of the Agency’s traditional regulatory scope. An analysis of the law reveals salient regulatory gaps that could be viewed as rendering some types of GGE beyond the FDA’s regulatory reach. Notwithstanding those gaps, this Article argues that the FDA can work within the existing statutory framework to cure regulatory deficits and promulgate rules to regulate the technology and, thus, urges the FDA to exercise that jurisdiction. This Article ultimately demonstrates how law and policy converge into a proposed new regulatory paradigm for human GGE that flows from the D.C. Circuit’s ruling in United States v. Regenerative Sciences, LLC, which held that specific stem cell mixtures can be regulated as drugs or biological products within the meaning of the Federal Food, Drug, and Cosmetic Act and the Public Health Service Act.

This Article further contends that efforts to ban GGE technologies cannot withstand constitutional scrutiny in the long run because they impinge on a cognizable fundamental right that protects select uses of GGE. This fundamental right flows from jurisprudence in the areas of procreative, parental, and—to some extent—privacy rights, but it is not absolute. The Article presents an interpretive model for this body of jurisprudence in the GGE context, which promotes extrapolation of applicable legal principles that can guide and promote coherent public policy. Launching from this jurisprudential departing point, this Article introduces a novel legal- and science-based normative framework to delineate primary limits for a right to perform GGE based upon four distinct categories: (1) therapeutic uses to remedy disease; (2) prophylactic purposes, which may or may not be therapeutic; (3) cosmetic or enhancement purposes; and (4) uses involving modification of traits that raise concerns of discrimination already prohibited by the law. This conceptual and structural approach outlines a legal blueprint for GGE clinical interventions, but more importantly it circumvents problems that dominate the existing literature, which arise from the conventional tendency to group GGE applications into therapeutic uses on one hand, and enhancements on the other.