American legal scholars join SMU professor in challenging Kremlin’s misrepresentation of First Amendment freedoms

DALLAS (SMU) -  A prestigious group of First Amendment and constitutional law experts from universities across the United States filed an amicus brief today with Russia’s highest court, challenging claims by Russian officials that its ban on criticism of Russian military forces is comparable to current “persecution of dissidents” in the United States.

The brief was filed Thursday in connection with twenty-one separate complaints lodged by Russian lawyers in April asking Russia’s Constitutional Court to throw out a 2022 law banning criticism of Russian armed forces.  The ban is being used to choke off opposition to Russian military action in Ukraine, going as far as to make the use of the word “war” illegal. Article 29(1) of the Constitution of the Russian Federation states that: “Everyone shall be guaranteed freedom of thought and speech.”

Jeffrey Kahn, a professor in Dedman School of Law at SMU (Southern Methodist University) internationally known for his research into the rule of law in Russia, said that the amicus response he authored is designed to challenge the deceitful “whataboutism” by Russian officials who have defended their law by saying that crushing dissenting voices is standard practice in the United States, too.

Kahn concedes that the likelihood of the case succeeding on the merits in Russia’s highest court is low as the rule of law continues to degrade in Russia. But he and his co-authors hope that an amicus of this sort might be a valuable rebuke to Russian propaganda that aims to normalize oppressive state action by claiming that it is routine elsewhere.

“Silence is a lie’s best friend. We had to speak up,” Kahn said.  “And that’s what the First Amendment is all about.”

Kahn cited several examples of Kremlin claims to the quashing of dissent in the United States, including references by President Putin to the “persecution of political opinions” following the January 6 attack on the Capitol and to the use of the Espionage Act of 1917 to charge Edward Snowden, whom Russia declined to extradite, saying “he considers himself a human rights activist and fights for the freedom of information.” 

The brief points to an American tradition of free speech in which the United States learned hard lessons about tolerating dissent.  While the default position of U.S. constitutional law is the rejection of government censorship, it reads, there have been periods in history where the United States did not meet this standard. As a result of hard-learned lessons, the brief states, “the United States has now established strong support for the constitutional rule that freedom of speech and thought must not be limited, even in times of emergency or war …”

“Some might say we shouldn’t acknowledge those episodes in which the U.S. did not meet its standard, like the McCarthy era, on which we now look back with shame,” Kahn said. “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,” Kahn said. “They shouldn’t be punished for it.”

The Russian law being challenged, hastily passed as Russia launched its invasion of Ukraine, punishes any speech or expressive conduct held to “discredit” the Russian military or government.  Twenty-one complaints have been filed by Russian lawyers seeking review in the Constitutional Court for their clients’ cases.  Actions for which Russian citizens were punished include such things as demonstrating with a poster reading, “40 days of war,” and demonstrating with a poster quoting a John Lennon lyric, “Give peace a chance.” 

Read the full text of the amicus brief here. The 27 professors of law co-signing Kahn’s  brief are:

• Lackland H. Bloom, Jr., Larry and Jane Harlan Senior Research Fellow and Professor of Law, Southern Methodist University Dedman School of Law
• Lee Bollinger, President of Columbia University and Seth Low Professor of the University, Columbia Law School
• Kathleen Burch, Professor, Atlanta's John Marshall Law School
• Evan Caminker, Branch Rickey Collegiate Professor of Law and former dean, University of Michigan Law School
• Dale Carpenter, Judge William Hawley Atwell Chair of Constitutional Law, Altshuler Distinguished Teaching Professor, and Professor of Law, Southern Methodist University Dedman School of Law
• Peter Edelman, Carmack Waterhouse Professor of Law and Public Policy, Georgetown Law Center
• Claudia Flores, Clinical Professor of Law and Director, Lowenstein International Human Rights Clinic, and Faculty Co-Director, Orville H. Schell Jr. Center for International Human Rights, Yale Law School
• Caroline Fredrickson, Distinguished Visitor from Practice, Georgetown Law, Senior Fellow, Brennan Center for Justice
• Eric M. Freedman, Siggi B. Wilzig Distinguished Professor of Constitutional Rights, Maurice A. Deane School of Law at Hofstra University
• Charles Fried, Beneficial Professor of Law, Harvard Law School, former Solicitor General of the United States
• Richard D. Friedman, Alene and Allan F. Smith Professor of Law, University of Michigan Law School
• William Funk, Lewis & Clark Distinguished Professor of Law Emeritus, Lewis & Clark Law School
• Tom Ginsburg, Faculty Director, Malyi Center for the Study of Institutional and Legal Integrity, Leo Spitz Distinguished Service Professor of International Law, Ludwig and Hilde Wolf Research Scholar, Professor of Political Science, University of Chicago Law School
• Daniel H. Halberstam, Eric Stein Collegiate Professor of Law and Director, European Legal Studies Program, University of Michigan Law School
• Helen Hershkoff, Herbert M. and Svetlana Wachtell Professor of Constitutional Law and Civil Liberties, New York University School of Law
• Jeffrey Kahn, University Distinguished Professor of Law, Southern Methodist University Dedman School of Law
• Thomas Leatherbury, Director of the First Amendment Clinic and Adjunct Clinical Professor of Law, Southern Methodist University Dedman School of Law
• Lawrence Lessig, Roy L. Furman Professor of Law and Leadership, Harvard Law School
• Eugene D. Mazo, Visiting Professor of Law, Seton University School of Law (after 1 July 2023: Associate Professor of Law and Political Science, Thomas R. Kline School of Law, Duquesne University)
• M. Isabel Medina, Ferris Distinguished Professor of Law, Loyola University New Orleans College of Law
• Jeffrey T. Renz, Visiting Professor, Ivane Javakhishvili Tbilisi State University, and Clinical Professor of Law (Retired), Alexander Blewett III School of Law, University of Montana
• Lawrence Sager, Professor of Law & Alice Jane Drysdale Sheffield Regents Chair in Law, University of Texas School of Law
• Kim Lane Scheppele, Laurance S. Rockefeller Professor of Sociology and International Affairs, Princeton University
• Ilya Somin, Professor of Law, George Mason University
• Douglas M. Spencer, Associate Dean for Faculty Affairs and Research, Professor of Law, University of Colorado Boulder
• Geoffrey R. Stone, Edward H. Levi Distinguished Service Professor, Dean of the Law School (1987-1994) and Provost of the University of Chicago (1994-2002), University of Chicago Law School
• Julie C. Suk, Professor of Law, Fordham University School of Law
• Laurence H. Tribe, Carl M. Loeb University Professor Emeritus, Harvard University