Is the Obama Administration Supporting Calls to Outlaw Supposed Hate Speech?

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 fear-mongering on his part, but hope (hope-mongering?) 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.

 

 

Comments

[MrsNaqba]

Outlawing "hate speech" brings us one step closer to outlawing ALL expressions of free speech.
The Obama administration has already levied baseless accusations against Fox News for "sedition", thus proving that their intent is to outlaw public criticism of Obama and his policies. When Bush was president, we were encouraged to dissent. Now that Obama is president, dissent is being stifled everywhere. An ugly, hypocritical double-standard.

[Liberty Lady]

I agree with the author and we should be concerned. Nothing should endanger our free speech. Once you start cutting into free speech, there will be no end. We're not the morals police. Pretend Bush did this to see how you really feel about it. You like the President and want him to succeed, but don't follow blindly. He is still a politician.

[BostonBrewer]

This is a further example of how the multiculturalists are allying with the Islamic states to shut down free speech in the west. We don't need hate crime laws---in the West we've already agreed on the acceptable limitations of free speech: copyright infringement, libel, direct incitement to violence, conspiracy to commit a crime. Americans don't need Orwellian thought-crime police overseeing our political thought. In this touchy-feely, post-Christian West that we live in, emotions are all-important, and we're told that "hate" is BAAADDDDDD. Idiotic. Hate is an emotion, and like most emotions, it's propriety depends on its use. It's not only acceptable, but it's morally imperative to hate injustice, to hate cruelty, to hate suffering, to hate oppression. Again, the West is becoming a civilization of pampered children, frightened of words and ideas, looking for the government to protect us from thinking. And speaking of people not thinking, several posters have missed a very relevant point: not only is it legal, but it's morally obligatory to shout "fire" in a crowded theater WHEN THE THEATER ACTUALLY IS ON FIRE!! But that's really the perfect example of the logic of many of the people in favor of "hate crime" legislation: "I don't care if there is a fire, I don't want to be upset by unpleasant speech."

[Hadji Beye]

So we're supposed to defend hate speech now? Folks, I don't know what the world has come into because regardless of what is written in the Constitution or not...right is right and wrong is wrong.

Freedom stops where it endangers other citizen's life.
Hate groups will hate, they will organize their groups and do what they do...they don't need anyone to defend them, they are not the helpless so getting all agitated because a law will control hate speech is really not necessary.

Hate speech just creates turmoil in an already troubled society.

[KIVPossum]

Who gets to define 'hate speech'?

You either have freedom of speech or you don't. It's not a pick and choose thing.

[Kaviraj]

Freedom of speech has degenerated into insulting, calling names, hate speech and other aberrations. You are free to shout Fire in the crowded theatre, but if there is no fire, why scream? Thus we get to define hate speech as shouting fire when there is no fire. I.o.w. If you say that all coloured people are lazy bastards - which is untrue - you are engaged in hate speech. It is really that simple.

All the legalese of the article completely circumvents that by convoluted phrasing - as is wont in legalese. Legalese is using big words and convolution to say something that is really very simple. Saying for instance that Obama is Hitler is simply hate speech.

[Jeffersonian22]

If saying all colored people are lazy is untrue, why not argue back against such an admittedly weak contention? It strikes me as, well, lazy to get the Central State to squelch the opinions of those with whom you disagree. Are you sure you want every utterance you make to be scrutinized for its accuracy and the full weight of the state brought down on you if it's insufficiently supported by facts?

[JoelTahoma]

I heartily disagree. The constitution gives all people the freedom to say whatever they feel. It is in their best interest to say what is best at that moment, and if they don't, then they must face the consequences of rebuttal by other people. Those that feel they are completely free to say whatever they feel are either doing so out of spite, they are truly expressing their feelings, or they have no idea of what they are speaking. Those that do it out of spite will continue to do so anyways, and those others would be wrongfully charged as that is truly offending their liberties.

[TrillionDollarKiss]

Not quite correct. The constitution does not give people rights. The constitution states what the government can and cannot do, so as to limit the government's powers. In this case it says that the Government cannot abridge your (natural) right to free speech.

[wildedge]

"Hate speech" ought not be protected under the First Amendment anymore than shouting "fire" in a crowded theater - it does not make any reasonable case, it is incitemet to violence - rather like convincing someone you know that his or her spouse is unfaithful, because you know the person is likely to murder the spouse in a rage (remember Iago?).
No, I think I trust Shakespeare and Obama on this more than I trust some academic free-speach advocate whose primary issue is what's in a book. The Constitution is a living document - and the First Amendment is more threatened by hate speach itself than by regulation of same.

[been2there]

Hate speech that is the equivalent of "fire" in a crowded theater should be outlawed. Recent examples in the USA would include the Facebook poll on killing our president and possible talk of violent revolution or secession.

[wildedge]

I made a similar equation in a comment written before seeing yours as it was't yet posted - great minds think alike.

[PlaceboStudman]

I don't really know what to think, because it is difficult to parse out the language into actual hypothetical scenarios.

I mean, would this, if it were passed, allow preachers to be prosecuted for hate crimes if it is found that one of their parishoners committed a gay bashing incident?

Would it allow an islamic man or woman to charge an American with Islamophobic hate speech or hate crime?

Granted Im taking it as assumed that the Islamic countries (with the exception of Egypt) would veto this resolution and make it irrelevant or mostly symbolic

But, those questions still remain in my mind