Is the Obama Administration Supporting Calls to Outlaw Supposed Hate Speech?
Eugene Volokh
October 1, 2009
That’s what it looks like, with this Joint U.S./Egypt draft U.N. Human Rights Council resolution (dated Sept. 2005). The resolution generally seems to be an attempt to urge more protection for free speech throughout the world, and some praise it for that; moreover, it lacks the exception for “defamation of religion” that some Muslim countries have urged. It may therefore be a step forward for Egypt, and an attempt to urge a step forward for some other countries.
But I’m worried that it might be a step backward for our own constitutional rights, because of what seems to be the U.S. endorsement of the suppression of “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence” and possibly of “negative stereotyping of religions and racial groups.” I say “seems to be” because some of the language in the resolution is pretty slippery, and of course it’s always possible that I’m misunderstanding it. (It’s also possible that past U.S. Administrations have taken similar views before, which I would condemn as well.) Here, though, is my thinking (all emphases added by me):
1. Paragraph 4 of the draft resolution “expresses … concern that incidents of racial and religious intolerance, discrimination and related violence, as well as of negative stereotyping of religions and racial groups continue to rise around the world, and condemns, in this context, any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence, and urges States to take effective measures, consistent with their international human rights obligations, to address and combat such incidents.”
2. Paragraph 6 likewise “[s]tresses that condemning and addressing, in accordance with international human rights obligations, including those regarding equal protection of the law, any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence is an important safeguard to ensure the enjoyment of human rights and fundamental freedoms of all, particularly minorities.”
3. I suppose it’s possible that the “effective measures” might simply include denunciation or other counterspeech, but that seems unlikely. The resolution quotes favorably the International Covenant on Civil and Political Rights and Human Rights Council Resolution 7/36. And article 20 of the Covenant (which in turn is favorably cited by resolution 7/36) expressly commands that “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” This suggests that the urgings in paragraphs 4 and 6 (possibly limited to the “incitement to discrimination, hostility or violence” language but possibly even including the “incidents … of negative stereotyping” language”) are urgings that such speech “be prohibited by law.”
4. Nor does this call for narrow prohibitions that would fit under the U.S. Supreme Court’s narrow exception for “incitement.” My understanding is that international definitions of “incitement” are considerably broader than the Court’s definition in Brandenburg v. Ohio. First, I don’t think “incitement” in such international documents is generally seen as limited to intentional incitement to imminently likely conduct (our First Amendment rule). Second, advocacy of mere hostility — for instance advocacy that people should hate and be hostile to radical strains of Islam (and its adherents), or to Scientology, or to Catholicism, or to fundamentalist Christianity, or for that matter to religion generally — is clearly constitutionally protected here in the U.S.; but the resolution seems to call for its prohibition.
5. Paragraph 10 also “expresses regret at the promotion by certain media of false images and negative stereotypes of vulnerable individuals or groups of individuals, and at the use of information and communication technologies such as the Internet for purposes contrary to respect for human rights, in particular the perpetration of violence against and exploitation and abuse of women and children, and disseminating racist and xenophobic discourse or content.” That might indeed be just condemnation — and, depending on what it means, might be perfectly sound condemnation — and not a call for coercive action. But note that the language of “express[ing] regret” is softer than the earlier paragraphs’ calls for “addressing” and “taking effective measures … to address and combat.” And the presence of this softer “express[ing] regret” language here reinforces my view that the more insistent language in the other paragraphs calls for coercive measures.
6. But why the fuss, some might ask, if we’re protected by the First Amendment? First, if the U.S. backs a resolution that urges the suppression of some speech, presumably we are taking the view that all countries — including the U.S. — should adhere to this resolution. If we are constitutionally barred from adhering to it by our domestic constitution, then we’re implicitly criticizing that constitution, and committing ourselves to do what we can to change it.
So to be consistent with our position here, 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.
7. 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.
8. Finally, I’ve considered whether our reservation to the International Covenant, specifically saying that “Article 20 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,” provides us with a loophole: The theory would be that the proposal only commits states to “take effective measures, consistent with their international human rights obligations,” and our reservation means that suppressing supposed hate speech isn’t one of our “international human rights obligations.”
But I don’t think that’s a fair reading of the joint U.S./Egypt proposal, or at least the reading that fair third parties would take of our position. It seems to me that the proposals calls on everyone to act consistently with what the U.N. Human Rights Council and similar bodies see as everyone’s “international human rights obligations” — which unfortunately includes an obligation to ban supposed hate speech — and not just what each country has expressly promised by the treaties they signed, subject to the reservations they attached.
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In any case, that’s my tentative thinking; please let me know what you think.
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