SMU professor filed a brief with Russia’s constitutional court

Sept. 3, Jeffrey Kahn, a law professor at the Dedman School of Law, SMU Dallas, for a piece expressing solidarity with Russians punished for their dissenting views against their government. Published in the Dallas Morning News under the heading SMU professor filed a brief with Russia’s constitutional court: http://tinyurl.com/2p88umzd

Silence is a lie’s best friend. So when Russia’s leaders claimed that punishing dissenting voices is just what governments do, including the United States, I asked our country’s top constitutional law scholars to speak up.

The twist is that we did it in Russia’s highest court, the Constitutional Court of the Russian Federation, in what may be the first brief amicus curiae, or “friend of the court” brief, submitted there by U.S. law professors.

It was an act of free speech where free speech is threatened

By Jeffrey Kahn

Silence is a lie’s best friend. So when Russia’s leaders claimed that punishing dissenting voices is just what governments do, including the United States, I asked our country’s top constitutional law scholars to speak up.

The twist is that we did it in Russia’s highest court, the Constitutional Court of the Russian Federation, in what may be the first brief amicus curiae, or “friend of the court” brief, submitted there by U.S. law professors.

When Russia launched its war of aggression against Ukraine, its leadership launched a war on its own citizens’ opinions of it. The Kremlin and its lapdog Legislature hastily passed a new law that created an “administrative” offense, punishing any speech or expressive conduct that “discredits” the Russian military or government — such as using the word “war” to describe Russia’s invasion of its neighbor.

The first punishment is a heavy fine. But there’s a “two strikes and you’re out” rule making a second offense punishable by years of forced labor or imprisonment.

Dictators fear what they can’t control. So, pettiness and cruelty in whom the Russian government punishes isn’t a surprise: a solo demonstrator with a poster announcing “40 days of war,” or an isolated picketer with a poster quoting the song by John Lennon, “Give the peace a chance.” Russian lawyers filed complaints in the Constitutional Court for another 19 such cases.

With classic “whataboutism,” Russia’s leaders defend this indefensible law by claiming the U.S. does the same thing. The Russian Foreign Ministry said its latest sanctions list includes “officials at government and law-enforcement agencies that are directly involved in harassing dissidents after ‘the storm of the Capitol.’”

In April came the claim that the U.S., along with the UK and Canada, “shamelessly violate human rights and prosecute dissenters at home that are called ‘domestic terrorists’ as happened with those who took part in the so-called ‘storm on the Capitol’ or the Canadian ‘Freedom Convoy.’”

What sort of person thinks a mob of violent rioters and a single soul with a sign are the same thing? Never mind that an easy check of the facts — all publicly posted — reveals not a single instance of Jan. 6 prosecutions for First Amendment protected speech or expressive conduct.

So, I did what lawyers do: I put my facts and arguments down on paper, recounting the history of freedom to dissent in the United States. You can read the brief for yourself, on SMU’s website. It provides background to the court in deciding 21 complaints by human rights lawyers defending protesters to Russia’s war, including the examples above.

Among the 27 professors of law who have added their names to the brief are president of Columbia University Lee Bollinger; Harvard law professors Laurence Tribe, Lawrence Lessig and Charles Fried (a former solicitor general of the United States); University of Chicago professors Tom Ginsburg and Geoffrey R. Stone; University of Texas professor Lawrence Sager; University of Michigan professor Evan Caminker; Princeton University professor Kim Lane Scheppele, and many others from across the country.

We always knew the likelihood of success on the merits in this court was low; the rule of law continues to degrade in Russia. Sure enough, the Court upheld this repressive law. So some might say this was quixotic. I disagree. It parallels the classic work of human rights lawyers around the world, shining light where brutes prefer darkness. Hopefully, this amicus brief will be a valuable corrective to Russian propaganda.

I had another hope, too. The brief points to an American tradition of free speech in which our country learned hard lessons about tolerating dissent. We now have one of the toughest protections for dissenting voices the world over. But it wasn’t always so. Occasionally in our history, government officials followed their lesser angels to silence opposition through might rather than reason.

I wanted to shine a light on those lessons, too, lest we forget just what is at stake. As Supreme Court Justice Robert H. Jackson observed, “Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.”

Some might say we shouldn’t acknowledge those times when we did not meet our own laws’ high standards, such as during the McCarthy era. In a way, the brief itself is an example of freedom to criticize one’s own country without the suggestion that one is disloyal.

When Russians criticize their leaders for this awful war of aggression, they do so out of love of their country, too. They shouldn’t be punished for it.

So we spoke out, hoping to help the judges identify and reject the Russian government’s false claims about U.S. law. Our friend-of the-court brief is an example of free speech, opposing lies that seek strength in silence.

Jeffrey Kahn is a law professor at the Southern Methodist University Dedman School of Law. He wrote this column for The Dallas Morning News.

​