BY RAFFI KASSABIAN, ESQ.
On April 24, 2021, President Biden became the first sitting U.S. president to officially recognize the Ottoman Turkish Government’s 1915 crimes against humanity against Armenians as genocide. This day is historic, not only because of what it means to acknowledge the truth and for the open wounds Armenians and Armenian-Americans carry, but also because it ended the longest standing gag rule imposed by a foreign government against the United States. President Biden’s statement is yet another step towards genocide prevention. Just as important, the President’s righteous actions will set a precedent for the United States to categorically reject any foreign governments veto over U.S. foreign policy or attempts at enforcing a prior restraint against our lawmakers from speaking the truth.
The Turkish lobby has spent countless decades and resources to muzzle the United States from uttering the words “Armenian Genocide.” The Turkish Government’s callous attempt to restrain the U.S. federal government from describing the events of 1915 as genocide was successful, but for only so long. For decades, the United States was concerned about placating the Turkish Government as a valuable ally in the Middle East. In the face of overwhelming historical data that showed otherwise, U.S. lawmakers’ speech was effectively chilled by a foreign government – in essence a prior restraint. U.S. lawmakers were hesitant to use the word “genocide” on the congressional floor or in any presidential declarations. In fact, use of the word even had at least one diplomat fired from his post, including namely U.S. Ambassador to Armenia John Evans.
With the case of declaring the Armenian Genocide, the U.S. government has been subject to a prior restraint for over 100 years. That is, until today. A prior restraint is government conduct prohibiting speech before the speech is ever communicated and it is disfavored under the First Amendment. Unlike subsequent punishment, which subsequently punishes someone for communicating speech after the fact (for example, arresting a person for inciting violence, fining someone for defaming another etc.), a prior restraint effectively restrains the communicator from speaking at all. It is in essence censorship. The seminal U.S. Supreme court case on prior restraints is New York Times Co. v. United States, which made it possible for the New York Times and the Washington Post to publish and circulate to the public then-classified government documents about the Vietnam War titled the Pentagon Papers. The federal government sought to enjoin publication to the public because of national security concerns and fear that dissemination would reveal U.S. war strategies. The U.S. Supreme Court held that “Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” Essentially, a prior restraint is presumed unconstitutional. The party seeking to enforce a prior restraint “carries a heavy burden” to justify it.
Here, with the use of the words “Armenian Genocide,” the Turkish government tactfully used a similar argument for decades, that uttering the “G” word would compromise U.S. national security abroad, put U.S. citizens in danger and cause a rift in U.S.-Turkish economic and military relations. These threats, in essence, censored the U.S. Congress and prior U.S. presidents from uttering the word genocide because of the potential alleged consequences. That all changed in 2019, when both the U.S. House of Representatives and the Senate passed a congressional resolution using the words “Armenian Genocide” on the congressional floor and, now, on April 24, 2021, when President Joseph Biden declared the same words in the annual presidential declaration.
The consequences of staying silent on the Armenian Genocide do have real consequences. For example, the prior restraint – or gag order – imposed by the Turkish government has had far reaching impacts on the current continued brutal aggression against the Armenians being perpetrated today. Specifically, the Turkish government’s attempts at prior restraint has been the impetus to successfully continue Turkey and Azerbaijan’s war in Artsakh against the Armenians this past summer, while the United States lethargically stood by on the sidelines. Had the United States already recognized the Armenian Genocide during the Artsakh war, it could have exerted greater diplomacy to stop Turkey and Azerbaijan from systematically killing the Armenian population in the region. Turkish President Recep Tayyip Erdogan and Azerbaijan President Ilham Aliyev’s overt and discreet public statements to finish what their forefathers started in their pursuit of Pan Turkism (“one nation with two states”) is in direct violation of the 1948 Genocide Convention which makes “direct and public incitement to commit genocide” a punishable act. Yet, the world stood silent. Thus, Turkey has been enabled by its successful attempts to muzzle its allies from using the word genocide to, in turn, continue its genocidal campaign against the Armenians today.
President Joseph Biden’s unprecedented April 24, 2021 statement is significant on multiple levels. The statement finally accurately portrays the historic events of 1915 – 106 years later. The statement has given some emotional and moral relief to Armenian-Americans who have carried this burden for decades. The statement has now set the world stage for victims of the Armenian Genocide to pursue full justice, including legislation that would permit U.S. citizens to sue for reparations and restitution. And, just as importantly, the statement has demonstrated that the First Amendment and free speech prevails over any foreign government’s attempt to muzzle the United States and its lawmakers.
Raffi Kassabian is a lecturer on the First Amendment at the Department of Communication at the University of California, Los Angeles (UCLA), partner at the Bezdik Kassab Law Group and the Vice Chairman of the Armenian National Committee of America – Western Region.