Extradition and freedom of speech - 26 June 1992

We've just had two weird rulings handed down by the United States Supreme Court, which on the face of them seem to sanction, first, jumping into a foreign country, kidnapping a foreigner who appears to be doing harm to the United States, fetching him back here and putting him on trial. And secondly, a ruling that again on the face of it seems to sanction the public expression of hatred for some person or some race or group.

Well, that's a pretty rough and ready definition of two judgements and perhaps also I ought not to prejudice you at the start by calling them weird. Let me begin to backtrack into prudence and the role of a reporter. These two judgements are only days old, but they are being widely and hotly challenged. However, let's get down to brass tacks, in this story to cases.

The first ruling came last week, it concerns a Mexican drug dealer and an American drug enforcement agent he tortured to death. The accused murderer is one Humberto Àlvarez Machaín who from now on we'll call Dr Àlvarez. He is by profession gynaecologist but he's also, according to American authorities, a corrupt drug dealer who in 1985 injected stimulants into the dying American agent so that he could be kept conscious for as long as possible through his ensuing torture by drug traffickers.

Of course, once the American agent was dead and the circumstances of his death became known, officials here, Americans, got busy and kept busy goading the Mexican government into indicting Dr Àlvarez and bring him to trial. The way to his indictment was not exactly blocked, but embarrassed by other suspect torturers about to be indicted who turned out to be one of the related to an ex-president and now there was a former director of Mexico's FBI. Such embarrassments are common enough in Latin American countries and when a crime is seen to involve friends or relatives of the government, justice has a way of sneaking off to hide.

Anyway, the United States worked quietly to have Dr Àlvarez extradited. The United States has an extradition treaty with Mexico, but as we were to discover last week such treaties can be thickets of legal conditions, if's and buts about where and how the citizen of another country can be sent abroad for trial. The negotiations got nowhere.

So in the spring of 1990, American drug enforcement agents paid $20,000 to some Mexican bounty hunters to seize Dr Àlvarez in his office in Guadalajara, kidnap him and bring him back to the United States, he's now in prison in Los Angeles awaiting trial. The successful act of kidnapping took place two years ago. Dr Àlvarez sued on the ground that his abduction was a violation of international law specifically of the United States-Mexican extradition treaty. The passage of his appeals through the lower courts was swift by American standards only two years and here now are the ultimate judges by a vote of six to three the court ruled that the kidnapping did not violate the letter of the extradition treaty.

The Chief Justice Mr Rehnquist wrote the majority opinion and admitted that the act of kidnapping was in itself shocking, but he found a precedent in the American abduction of a man from Peru way back in 1886 and the court upheld that. I don't have Chief Justice Rehnquist's opinion at my side, but I don't believe he cited the Peru case as a sanction for further leaps into foreign countries in order to whisk away America's enemies. The judge who wrote the dissenting opinion Justice Stevens called the majority opinion monstrous. However, six to three so presumably Dr Àlvarez will go to trial in Los Angeles.

Now as you know Americans are preoccupied these days with the presidential race and about this kidnapping case, the papers, the liberal magazines especially have had their brief lamenting say and there an end. But need I say the response to the courts ruling in Mexico has been a general shout of outrage, the Mexican government are the first to admit that if Dr Àlvarez is even a shadow of the man portrayed by his prosecutors he is a human or inhuman monster, so was General Noriega the Panamanian dictator but the American invasion of his country and his subsequent removal to Florida was condemned by the International Court of Justice.

Incidentally, immediately after that invasion, the organisation of American States, which is made up of the nations of South and Central America plus Canada and the United States, all 21 of them met and a vote of condemnation of the invasion was registered by 20 out of the 21, guess which was the 21st?

By the way the reporting of the vote here got lost in the general excitement over the search for Noriega. Well he's been tried and found guilty and any serious voice in Panama or for that matter in the United States that protests the American right to leap into a foreign country and kidnap its dictator, however humanly obnoxious he maybe, has long ago faded away.

All I can say about the Supreme Court's approval albeit shocked approval of the kidnapping of Dr Àlvarez is that it has revived not only to Mexicans but to other nations below the real grandee the old swaggering image of the bully of the north. A week or two from now, the United States and Mexico will sign a free trade agreement to the dismay of Democrats in the House here and the scepticism of the Mexicans who yearn for the day of less dependence on the United States, but do share two thirds of all their trade with this country. In the meantime, Americans move briskly on to other business and the Mexicans bridle with rage, some of them with hate.

And talking of hate, we now move on with the Supreme Court to its most recent ruling, which has to do with nothing but hatred and the public expression of it. Like so many if not all of the Supreme Court's most memorable cases, the case names one person as the plaintiff against a state, a company, a city or federal law as in the landmark case that abolished black segregation, Brown versus Board of Education. Brown being Linda Brown an eight-year-old black girl who wanted to go to a white school round the corner rather than walk two miles to a black school.

Well, this week's judgement revolved around a white teenager who had been accused of violating a law passed by the city council of St Paul Minnesota. The boy was one of several who burned a cross on the lawn of a black family's house, a familiar performance to older listeners who will remember the positive forest fire of cross burnings on or close-by the property of coloured people as we called them then when the Ku Klux Klan was in its heyday in the 1920s, terrifying the black communities of the South.

The St Paul law, which many other cities have been inspired to copy in the wake of sporadic racial episodes in slums on campuses, the St Paul law made it a crime to engage in speech or behaviour that is likely to arouse anger or alarm on the basis of race, colour, creed, religion or gender, ie sex.

I should also say that many universities and colleges especially ones that have a mixed ethnic and racial student body, many colleges have proclaimed their own rules hoping to have the force of law that forbid language by way of slang, obscenity that abuses or belittles some other race religion, sex etc. And we've already seen that some of these rules invented often by very earnest and well meaning liberals practically set up an approved code of language. We've heard of professors disciplined for talking about American Indians instead of Native Americans, colleges where it is forbidden to address or talk about blacks you must say African Americans. Needless to say such codes of behaviour in practice outlaw joking, kidding, satire and indeed the exercise of American humour.

We've all heard for the past year or two of the absurdities of this so called political correctness, which is steadily attacked by people concerned for civil rights as a deliberate flouting of the right to free speech as it is defined in the first amendment to the Constitution and exactly what does that say? Congress shall make no law abridging the freedom of speech or of the press or of the right of the people peaceably to assemble. By the way, some of the free speech demonstrations of the 1960s, the right to bawl four-letter words all over the campus turned into riots, but I don't remember a judge stressing that the Constitution protects only the right peaceably to assemble.

Well now granted that many of these codes set up by colleges and schools plainly restrict free speech, surely none of us would say that the Constitution protects as free speech the burning of a cross on a black man's lawn. Well the Supreme Court of the United States says so. All nine justices agreed that the St Paul law violated the Constitution though they differed bitterly on implying how far insulting speech or behaviour can go to threaten or disrupt society. What the justices all appear to share is the late Justice Holmes's always quoted remark, "freedom of speech is freedom for the speech we loathe". However, this court has now expanded speech to take in aggressive certainly provocative action, which in some countries would be punishable under the laws governing incitement to riot.

The people who either protest this judgement or are bewildered by it range from other judges, mayors, other public officials practically any minority you can think off Jews, Blacks, Hispanics, Asians all the way down to a very humble black couple Russ and Laura Jones on whose lawn those hateful teenagers burned the cross. Mrs Jones said with remarkable restraint that the court's decision was a disappointment, she has five young children, she says, "they're aware of racism, they notice it more and more – they're too young for that".

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