German Piece on Criticism of Religion in the USA


At the invitation of the Friedrich Naumann Foundation, which is associated with the German Free Democratic Party*, I wrote a piece on the laws concerning criticism of religion in the USA. Short version: there pretty much are no enforcable laws against criticizing religion in the US. The longer version is in the book, in German. I tried to keep it relatively non-technical.

There are also entries from many other writers on freedom of opinion concerning religion in other legal orders, including Russia, France, and the Islamic world. I haven't had a chance to read the other articles yet, but they look interesting.

The book has just come out and is available in written form and by download (pdf) from the Foundation's website. If you happen to read my piece, let me know what you think.

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LTO Quotes Me on the Recent Court Decision on NSA Spying

The Legal Tribune Online asked my opinion about the recent federal district court decision on NSA spying, Klayman v. Obama (pdf). The article's in German, so I'll give my two cents here briefly in English.

  1. This is just a decision on a motion for a preliminary injunction (einstweilige Verfügung). The plaintiff, half-bonkers American legal gadfly Larry Klayman, asked the court to stop the NSA spying on him while the underlying merits of the legal issues were resolved. To win this preliminary phase, he had only to show a 'likelihood' of success on the merits.
  2. The judge decided to 'stay' (delay) the injunction from taking effect until the government has had a chance to appeal. Thus the NSA can continue spying in the meantime.
  3. Even if Klayman wins his case, the end result would be only to force the NSA to stop spying on him (and one other plaintiff) -- although, as a practical matter, the logic of the court's ruling would apply very broadly, since Klayman doesn't allege that he was targeted in any special way.
  4. The district court is the lowest in the food chain. The government will certainly appeal this ruling to the D.C. Circuit Court of Appeals, which is one of the more conservative in the nation.
  5. There is a 1979 Supreme Court decision, Smith v. Maryland, which holds that Americans don't have a legitimate interest in the privacy of the basic 'metadata' of their phone records (who called whom when). Granted, there are huge differences between Smith -- which involved only one single pen-register-tap -- and the current, omnivorous NSA spy program. However, a court could well conclude that Smith means the NSA program is constitutional, and if Smith needs to be updated or rejected, only the Supreme Court has the power to do that.
  6. As for any foreigners who may read this post, I regret to inform you that this decision applies only to Americans on American soil. Foreigners located abroad have almost no rights (pdf) under the U.S. constitution.

This is not to criticize the district court's decision -- it's unusually well-written and convincing. Still, the best argument doesn't always win the day, not by a long shot. Therefore, I give the district court decision about a 40% chance of surviving on appeal. I hope I'm wrong...

Interview about the Zimmerman Case on BR Radio


Here's an interview I gave to Bavarian Radio yesterday (in German) which was broadcast this morning. My legal analysis of the Zimmerman case, plus a mild howler.

 Me on BR Radio

In this post I clear up a misconception that I've encountered among many Germans, who seem to think that Zimmerman got out of the car, followed Martin, and then executed him in cold blood for no reason. The very fact that Germans believe that this sort of thing would go completely unpunished in the United States shows how grossly distorted the German image of America can be.

As the photos above show, there was a physical confrontation between Martin and Zimmerman before the shot was fired. Zimmerman's injuries were not life-threatening, but they do show that there was a chaotic, physical fight before the shots were fired. The jury found that Zimmerman fired his gun because he reasonably feared, in the precise words of Florida law, 'imminent death or great bodily harm to himself'. The fact that Zimmerman provoked the confrontation by following Martin was only of secondary relevance from a legal perspective, whatever you think of it from a societal perspective.

This is not to say that I endorse Zimmerman's actions. It's a simple plea for Germans to inform themselves more fully than their own media typically does before making a judgment. And if you think that German law on self-defense is very different, you might want to read this court decision (g) in which a German court ordered the complete release of a member of the Hell's Angel's motorcycle club who shot and killed a German SWAT-team member without warning (except for yelling 'fuck you') as the officer was trying to enter his apartment and conduct a search. The court found that since the Hell's Angel's member was in his home and feared for his life because the Bandito gang wanted to kill him, his mistaken assumption that the break-in was being done by the Banditos, coupled with the fluid and unpredictable situation, allowed the biker to immediately shoot to kill without firing a warning shot or announcing his intentions.

Of course there are differences between the two cases, but they certainly show that German law also permits you to use deadly force to protect yourself if you believe you're under threat -- and that the law recognizes that in a fluid, fast-moving situation like a physical confrontation, you cannot expect participants to obey all the niceties of civilization.

Interview on the Death Penalty in Legal Tribune Online

The Legal Tribune Online interviewed me on the subject of Texas' 500th execution here (g). I was thrilled that the final version name-checked my comrades at the Texas Defender Service and the Gulf Regional Advocacy Center, who have saved dozens of lives between them and continue cleaning the Augean stables of Texas death-penalty justice. Show them some love and, more importantly, give them some cash.

I'll Be Holding a Workshop in Berlin Tomorrow

Hey everbody, I will be holding a 'workshop' at the Humboldt University tomorrow at 16:00. The title is Who Writes Criminal Laws? A Comparative Look at the Social and Structural Determinants of Criminal-Justice Policy in Europe, the UK, and the United States. As you might be able to guess by the title, this will be rather academical in nature. Nevertheless, if you're interested, feel free to drop by!

My Thoughts on the Breivik Judgment

The LSE's European Politics and Policy blog has published a short piece I wrote on the Breivik judgment. Here's the conclusion, summarizing the way in which opposition to capital punishment gradually became the majority position in Western Europe:

This pattern can be summarized as follows. After a period of active controversy, interest in the subject of capital punishment fades. Since inertia (always a powerful force in politics) now favours abolition, there seems little point re-opening the emotional debate over executions. No drastic increase in violent crime will occur after abolition. If there is a crime increase, the experts will reassure the public that abolition had nothing to do with it, as the death penalty has no proven deterrent effect. Eventually, the press loses interest in the subject of capital punishment’s potential return, and politicians realize it has lost its power as a vote-getter. Open support for capital punishment lives on only among right-wing fringe parties (such as the British National Party, or Germany’s far-right National Democratic Party). The adoption of capital punishment by fringe parties therefore creates a sort of self-reinforcing ring-fence around the issue: even mainstream politicians who might personally favor the death penalty choose not to mention it, for fear of being associated with unpopular fringe groups.

At the end of this process (which can take decades) we are left with perhaps 60-70 per cent of a country’s population opposing capital punishment in principle. Notably, this opposition may be relatively weak — as I found while researching my book on this subject, leading questions can elicit support for capital punishment even among people who consider themselves abolitionist. This is where treaties come into play. Even if shocking crimes such as Breivik’s might prompt some citizens to re-think their death penalty views, international commitments authoritatively banning executions stand in the way. It’s difficult to build support for a policy that has no chance of being adopted.


Heidelberg Debate on 'Morality and Criminal Justice'

Here, as promised are the videos of the talk I gave with Robert Blecker in Heidelberg on 4 May 2012. The introduction is by Franz-Julius Morche, one of the organizers of the conference, and the moderation is by Dr. Markus Englerth. Many thanks to both of them, to Robert Blecker, and to the audience, who asked some good questions.

Heidelberg Symposium Tickets Available


As I announced a few weeks ago, I'll be in Heidelberg in two weeks to debate Robert Blecker, an American law professor who endorses a retributivist approach to punishment and favors capital punishment. The debate will take place during the 24th Heidelberger Symposium (g), which takes place from the 3rd to the 5th of May in Heidelberg. The theme is Mut zur Moral, roughly 'The courage to be moral.'

I've been informed by the organizers that tickets are necessary. Fortunately, you can buy them online here (the website's in German). Buy your tickets, come watch the festivities, and get drunk with me afterwards!