Caving to Terrorism

Dutch member of parliament Ayaan Hirsi Ali has been ordered by a court to vacate her apartment because her criticisms of terrorism and violence against women in Dutch Muslim communities triggered a hostile reaction from Islamic extremists. The hostile reaction made some neighboring apartment owners feel unsafe, even though the Dutch government provides extensive building security. The court relied upon the European Convention on Human Rights, a politically correct hodgepodge of freshly-minted “rights” that left-wing European courts have frequently invoked to justify restrictions on individual freedom. It sided with neighboring apartment-dwellers who sued claiming Ali’s presence put their “right” to feel safe at risk.

Hirsi Ali, a woman of Somalian Muslim origin, went into hiding in November 2004 when filmmaker Theo van Gogh was murdered by an Islamic extremist. They had finished work shortly before his murder on Submission, a short film about the ill-treatment of women under Islam.

On April 28, a Dutch appeals court ruled that Hirsi Ali could be kicked out of her home because her presence meant neighbors no longer felt safe in their own apartments or in the communal areas of the apartment complex. The court held the Dutch government violated Article 8 of the European Convention of Human Rights, which mandates respect for a person's private and family life, by moving Ali to the apartment complex without seeking their consent and without taking measures to diminish the neighbors' valid fears.

This is the ultimate in blaming the victim, and it is no accident that it occurred in “sophisticated” Europe, which smug academics and lawyers claim is more advanced than America when it comes to human rights.

The Dutch courts’ action would be unthinkable under American law, at least at the current time. In America, speakers cannot be restricted by the government in response to angry listeners or the fears of third parties. Under U.S. Supreme Court precedent, citizens cannot be denied the right to speak publicly because of an angry reaction by listeners, nor can they even be charged expensive fees for peaceful picketing because of the increased cost to police of protecting them from those who might commit violence against them. In unfashionable America, a heckler’s veto is not permitted to silence speech

But the European Court of Human Rights has frequently allowed restrictions on free speech that would be unthinkable in America, such as restricting criticisms of governmental misconduct, despite the fact that the European Convention purports to protect free speech rights.

Some have minimized the importance of the Dutch courts’ terrible ruling by saying that its holding that Ali can be kicked out of her home is limited to cases in which the government has gotten involved in housing a controversial speaker.

That may be wishful thinking. In American law, you can only sue the government for acts by the government itself, not third parties. For example, you cannot bring a federal constitutional lawsuit alleging that the local police department failed to protect you from your estranged lover, since your estranged lover is not a state actor (many such lawsuits have been brought, but plaintiffs invariably lose such cases, with a few rare exceptions, such as an unusual case that is frequently shown as a movie on the Lifetime Channel). 

Under the case law of the European Court of Human Rights, by contrast, you can sue in such cases, because in its eyes, “rights” apply not just against the government’s own actions, but also against a government’s failure to prevent private conduct. America’s “state action” doctrine, which limits the constitution’s reach to acts by the government, is considered very passé.

(When Joseph H.H. Weiler, who was a co-drafter of the European Parliament's Declaration of Human Rights and Freedoms, taught at Harvard, he disdained American legal scholars who believed in free markets and individual freedom, like Richard Epstein. Instead, he brought to Europe to lecture on human rights two radical law professors opposed to the state-action doctrine, whom he hailed as “powerful cocktails”: Duncan Kennedy, who was widely ridiculed at Harvard for advocating rotating his law school’s faculty and janitors into each other’s positions and paying them all equally, and feminist legal scholar Catharine MacKinnon, a vociferous defender of campus speech codes, who has argued that most heterosexual sex is rape, even if the female participant claims she consented to it).

So in a future case, someone like Ali may not be able to live anywhere near anyone else, thanks to European “human rights” law. Even if the government plays no role in providing a controversial speaker like Ali with a place to live, there may still be a lawsuit if the government fails to deliberately isolate such a speaker from any nervous neighbors who feel unsafe.

A final irony is that while Ali lives under heavy security in large part because she criticized the terrible treatment of women in the Netherlands’ Muslim ghettos, Dutch feminists have by and large been deafeningly silent about her plight and the violence against women in those ghettos.

Often, we are told we should defer to international norms, although the international community has done nothing to prevent genocide in Darfur and Rwanda, and only American unilateral intervention stopped the killing of Muslims in Bosnia and Kosovo and the Kurds in Iraq. 

Left-wing legal scholars claim that European “human rights” decisions should be treated as customary international law, entitled to binding force in American courts under the Alien Tort Claims Act.

The Dutch appeals court’s decision offers a cautionary reminder of why we should not defer to foreign law, and instead preserve what is unique and valuable about our Constitution.

--Hans Bader