National Review Online
April 8, 2011
by Nina Shea
Jacob Mchangama is right to sound the alarm about the U.N.’s shift of focus away from attempting to make “defamation of religions” a human-rights violation and toward banning hate speech. But hate-speech bans are not new. Religious-hate-speech laws have long been used as proxies for Islamic blasphemy rules in the member states of the Organization of the Islamic Conference (OIC), and increasingly in Europe, Canada, and Australia as well. The U.S. does not have hate-speech laws.
However, Mchangama rightly suggests that, with the death of the “defamation of religions” resolutions, we will be seeing a big international push to criminalize religious hate speech, including here in the U.S. As we gird for battle, here are some points to consider.
1. This shift has been under way in the U.N. Human Rights Council for years. It was started by the EU as an effort to get the OIC off its anti–“defamation of religions” kick. Article 20 of the International Covenant on Civil and Political Rights — which states that “any advocacy of … religious hatred that constitutes incitement to discrimination [or] hostility … shall be prohibited by law” — is already international law, so no further declarations, instruments, etc., would be required. (Article 20 was supported by the Soviet bloc and opposed by the West — even though many of the Western Europeans states that spoke out against its inclusion already had hate-speech laws at the time.)
2. Virtually all 47 member states of the Council of Europe have laws punishing hate speech. (They are unevenly enforced.) Europeans have had racial-hate-speech bans since Nazism arose in the 1930s. Since the middle of the last decade, these have been expanded to ban criticism of Muslims, who argue that since Jews are protected by hate-speech bans, they should be too.
3. The EU sees hate-speech bans as an appealing alternative to laws banning “defamation of religions” because they are consistent with the theory that individuals, not institutions, are to be protected under human-rights law. In practice, these laws give courts in Europe wiggle room. For example, neither Rushdie nor the Danish cartoonists were convicted of hate speech. It will be interesting to see what happens with the Wilders case in the Netherlands. If he’s convicted, it could signal a new era of more consistent enforcement of the hate-speech bans. But even if only some of these cases end in convictions and the rest in acquittals, these trials have a chilling effect on free speech, which makes hate-speech bans very dangerous.
4. The U.S. does not ban hate speech. The Supreme Court held in the 1969 case Brandenburg v. Ohio that, under the First Amendment, our freedoms of speech and the press bar the government from forbidding “mere advocacy” of violence or of other criminal behavior save where such advocacy is directed to inciting or producing imminent and likely lawless action.
5. Upon ratifying the ICCPR, the U.S. made a reservation to Article 20, saying that the article “does not authorize or require legislation or other action by the United States that would restrict the right of free speech and association protected by the Constitution and laws of the United States.”
6. In 2009, the Obama administration had the U.S. co-sponsor with Egypt, which represented the OIC, a non-binding hate-speech resolution in the Human Rights Council. #more#In contrast to U.S. constitutional law, that resolution urges states to take and to effectively implement “all necessary measures” to combat any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility, or violence. It thus encourages the worldwide criminalization of religious hate speech.
UCLA law professor Eugene Volokh blogged about how the 2009 hate-speech resolution might impact the U.S.:
“So to be consistent with our position here [in co-sponsoring the 2009 resolution], the Administration would presumably have to take what steps it can to ensure that supposed “hate speech” that incites hostility will indeed be punished. It would presumably be committed to filing amicus briefs supporting changes in First Amendment law to allow such punishment, and in principle perhaps the appointment of Justices who would endorse such changes (or even the proposal of express constitutional amendments that would work such changes).
“To be sure, I think it’s quite unlikely that the Administration would indeed work to enact a specific Anti-Hate-Speech Amendment, or make support of article 20 of the International Covenant on Civil and Political Rights into a litmus test for Supreme Court appointees. But it seems to me that the Administration’s and the Nation’s international representatives’ calling for the suppression of “hate speech” throughout the world would have some significance. At least it would let other countries fault us for inconsistency when American law fails to punish such speech.
“And beyond that, I’m worried that the Executive Branch’s endorsement of speech-restrictive “international human rights” norms will affect how the courts interpret the First Amendment, so that over time, “an international norm against hate speech … [would] supply a basis for prohibiting [hate speech], the First Amendment notwithstanding.” And that worry stems not just from my fevered imagination, but from the views of Prof. Peter Spiro, a noted legal academic who is a supporter of this tendency. That’s not fearmongering on his part, but hope (hopemongering?) and prediction. So anything that an Administration does to endorse international speech-restrictive norms might well have an effect on our own constitutional rights as well.”
7. The new anti-stereotyping resolution that was adopted this March by consensus, which Mchangama references, was an improvement over the 2009 one because it does not call for state enforcement of restrictions against speech (though it does say stereotyping should not be used regarding law enforcement or security).
8. It is important to keep in mind that none of these resolutions are binding. And a one-off resolution like the 2009 one poses little threat. The danger is that through annual repetition in a variety of U.N. forums — such as the infamous Durban conferences, as well as the Human Rights Council and the General Assembly — some U.S. court could find a hate-speech ban valid. Or the president could follow the route outlined above by Professor Volokh.
9. The OIC suffered a substantive (i.e. not merely tactical) loss in its 13-year campaign for a Human Rights Council anti-defamation resolution. It could no longer sell to the rest of the world its inverted idea of human rights — that human rights protect institutions such as Islam, rather than individuals. Some OIC members of course will continue killing and punishing blasphemers at home regardless. And Europe will continue to wiggle between political correctness and free speech.
10. Article 20 has indeed gained in prominence in recent years, demonstrating that the International Covenant on Civil and Political Rights is a very weak reed. There are also exceptions to Article 19 on free speech, including curbs on speech for national security, on public order grounds and to preserve morals, and those are being given more emphasis too in Europe and at the U.N. — the exception is fast becoming the rule. For example, the British have begun to prosecute religious-hate-speech cases involving negative speech against Islam under “public order” laws.
The bottom line is that the OIC is making hate-speech laws the new battleground for stopping criticism of Islam. The question is: Will the U.S. roll back the First Amendment to conform?
Nina Shea is a Senior Fellow and Director of Hudson Institute's Center for Religious Freedom.
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