Fatal Attraction: US Flirts with International Speech Codes
by Nathaniel Sugarman
This past week, the United States met with the Organization of Islamic Cooperation (OIC) in London to discuss whether speaking about religion can violate international law. The meeting represents round three of the "Istanbul Process," an effort Secretary of State Hillary Clinton launched in July 2011 in the eponymous Turkish city. The initiative's goal is to implement non-binding UN Human Rights Council Resolution 16/18, which itself calls for the criminalization of various forms of speech concerning religion. The OIC, an association of 56 Islamic member states and the Palestinian Authority, represents the largest voting bloc in the United Nations.
The renewed Istanbul Process talks come just a month after a UN official urged the United States to combat racism by adopting a "solid legal framework" for regulating internet speech. In a November 5, 2012 address to the General Assembly, UN Special Rapporteur Mutama Ruteere recommended that countries take steps to combat "racial hatred," which include adopting "legislative measures" to address the problem. These measures, according the rapporteur, should be in compliance with "international human rights standards." Special Rapporteurs are UN-appointed officials assigned to research a particular issue and report back to the organization with their findings. In his report, Mr. Ruteere specifically identified the United States as a country that should consider new legislation targeting internet hate speech.
Why should the United States be concerned with the rapporteur's recommendations regarding internet speech regulation? After all, "freedom of expression and opinion," according to the report, should not be impeded by any of the new proposed "measures." And why be concerned about the Istanbul Process? It seems to merely condemn incitement, which the United States does not protect in any case.
An answer requires closer examination of the terms of art used by the respective parties.
Resolution 16/18 calls for criminalization of "incitement to imminent violence based on religion or belief," and it "condemns... any advocacy of religious hatred against individuals that constitutes incitement to discrimination, hostility or violence." At first glance, this language does not seem restrictive; even in the U.S., incitement is not a protected form of speech. The issue is the respective ways in which the U.S. and the OIC define "incitement." U.S. Courts use a content-based test to determine whether speech is incitement (See: Brandenburg v. Ohio). Brandenburg, which is still the law, ruled that in order for speech to be unprotected as incitement, the speech must (1) intend to produce imminent lawless action, and must be (2) likely to produce such action. In other words, there is both a subjective and objective prong, both concerning the speech itself. By contrast, the OIC endorses a "test of consequences," which punishes speech based not on its content, but based on the result. This is a completely subjective test, and fails to consider the words uttered by the speaker, focusing only on the reaction of others. How would this play out in practice? Violence claimed to be in response to cartoons of Muhammad, could, under the OIC's definition, retroactively define the cartoons as incitement. Surely, this framework is in direct conflict with U.S. law.
The rapporteur's suggestions regarding internet hate speech regulation also conflict with U.S. law upon closer examination. While various European laws limit the nebulous concept of "racist" or "hateful" speech, in the United States, hate speech remains constitutionally protected. The issue here is that the UN's recommendations do not suggest a required compliance with U.S. constitutional norms, but rather "international human rights standards," a mean of myriad laws that would necessarily afford less protection than would U.S. legal standards. For example, Denmark, France and the Netherlands all have statutes prohibiting "hate" speech, that is, speech which in various ways involves the target's race or religious practice. The case could therefore be made that insulting a person based on their race or religion does indeed violate international human rights standards. However, punishing this type of conduct in the United States would violate the First Amendment. Again, as with the Istanbul Process, this creates a direct conflict between U.S. and international law.
The Istanbul Process and the move to regulate internet speech, in addition to creating conflicts between U.S. and international law, also represent a departure from the policies of past U.S. administrations. In both 1980 and 1992, Presidents Jimmy Carter and George H. W. Bush signed, respectively, the International Convention on the Elimination of All Forms of Racial Discrimination and the International Covenant on Civil and Political Rights, but both times with the important reservation that these Conventions shall not in any way impede the protections of the First Amendment.
In perhaps the most famous case directly pitting U.S. law against international law, Medellin v. Texas, the Supreme Court ruled that U.S. law controls. In that 2008 case, the Mexican government attempted to stop the State of Texas from executing Medellin, a Mexican national. Mexico had abolished capital punishment; Texas had, and still has, not done so. The court applied Texas law and the state executed the convicted rapist and murderer. Justice Roberts articulated the rule that not all international law obligations automatically constitute binding federal law enforceable in U.S. courts. In other words, the United States dictates United States law, not international entities.
Some may argue that international law is merely advisory as far as the U.S. is concerned, and that the U.S. will follow U.S. law, as it has done in the past. But the United States is not a jurisprudential island unto itself. In Lawrence v. Texas, Justice Kennedy's majority opinion cited to international law, including decisions by the European Court of Human Rights. Lawrence was a landmark case for civil liberty and personal freedom. The Court ruled that the 14th Amendment Right to Due Process protects overt expression of intimate conduct with another consenting adult, regardless of gender, in the privacy of one's home. Although many consider the result of Lawrence to be a victory for free speech, the decision did rely on international law norms in coming to its ruling. The risk is that if international standards governing speech are codified, either by way of internet hate speech regulation, or agreements not to defame Islam, those norms could eventually trickle into U.S. law.
It cannot be overstated that since the U.S. is truly an outlier in regards to how much speech is protected by law, any international norm will necessarily be less protective of speech than the First Amendment standard. The Legal Project believes that rather than endorsing restrictive international speech codes, the U.S. should be promoting the idea that the right to speak freely is far more important than the right to be free from criticism and offense.
Nathaniel Sugarman is a Law Clerk for the Legal Project at the MEF
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