Free speech is an awkward promise if the government intends to honor it only for people who agree with the government. At that point, what you have is less a constitutional principle than a very large fan club with enforcement powers.
In an October 13 order covered by The Guardian on October 14, Judge Jesse Furman granted substantial preliminary relief to plaintiffs including DAWN and Taxpayer Alliance Against Genocide over ICC-related advocacy. The court concluded they were likely to succeed on a First Amendment claim.
The order did not declare the sanctions measure universally unenforceable. It denied a universal injunction and limited relief to the plaintiffs and the conduct addressed in the case. Yesterday’s preliminary order is not a final judgment abolishing every ICC sanction.
Disagreement Is Not A Financial Weapon
The public can debate the International Criminal Court’s role, jurisdiction, decisions, and performance. Governments can challenge its positions and defend their own through lawful means.
That debate should not automatically expose American advocates to financial or criminal penalties for speech-related work merely because the administration dislikes the direction of the advocacy.
You do not have to agree with an organization to understand the danger of letting the government convert disagreement into punishment. A right that applies only to a persuasive speaker is a compliment, not a right.
The court’s reasoning deserves attention on that basis. It focuses on the legal protection of activity, not on whether every allegation made in the underlying international debate is correct.
That distinction keeps the discussion honest. Protecting advocacy does not establish guilt in a separate case. Nor does criticizing an international institution settle whether a particular restriction on American speech is constitutional.
Both questions need their own evidence and standards. Combining them may produce a louder argument, but it does not produce a better one.
National Security Still Needs A Limiting Principle
National security and foreign policy can involve serious responsibilities. They should receive serious treatment, including careful consideration of the government’s actual justification.
But invoking an important subject does not automatically make every measure taken in its name appropriate. The explanation must fit the action, and the legal safeguards must still do their work.
Otherwise, the government’s preferred vocabulary becomes a magic spell. Say security three times, wave the paperwork, and inconvenient speech vanishes. That is an excellent arrangement for officials and a terrible arrangement for everybody who might someday need to criticize them.
Liberals should defend speech protections consistently, including for advocates whose views they find wrong. The principle becomes much stronger when it is not visibly tethered to the current owner of the White House.
The same discipline applies to celebrating this order. It is significant relief for these plaintiffs, but its limits should be reported accurately. A narrow victory does not become a universal one because the larger headline would generate more applause.
The useful political takeaway is that public power requires justification and constraints. Advocacy about alleged abuses should be debated on its merits rather than chilled through an indiscriminate threat of penalties.
That protects the possibility of scrutiny. It does not guarantee that every advocacy claim survives scrutiny, and nobody should pretend otherwise.
The litigation can continue, and the parties will address what comes next. For now, the order provides a concrete reason to insist that speech-related work receives real constitutional consideration.
An administration is entitled to disagree with an advocate. It is not entitled to turn the First Amendment into a foreign-policy loyalty program and charge dissenters for failing to collect enough points.