IS THE FIRST AMENDMENT IN JEOPARDY
By Daniel Huff
The Declaration of Independence did more than dissolve the bonds with England. It put the world on notice that America is sovereign; that the rights of its citizens will not be dictated by foreign powers.
That is why it is hard to believe that free speech, the pillar of American constitutional democracy, could be in any actual jeopardy from United Nations treaties banning "hate speech" or recent efforts to proscribe what is being called "defamation of religions." This complacency is reinforced because the U.S. government has always reserved the right to ignore any treaty provisions inconsistent with the First Amendment.
The problem is that international law and the First Amendment are not independent issues.
The existence of treaties limiting speech can color the way U.S. Courts construe the boundaries of free expression. The more such treaties there are, the greater the likelihood courts will find they embody a compelling government interest which trumps the First Amendment.
This subtle danger lurks in the Obama administration's recent announcement that the United States will "work together" with Islamic countries "on the issue of defamation of religion." Their pious sounding initiative is in fact a pernicious attempt, spearheaded by the Organization of the Islamic Conference (OIC), to enshrine a prohibition on insulting Islam in international law.
The OIC does not precisely define "defamation of religions," but, as an example of the sort of censorship it has in mind, consider this: In 2008, a court in OIC member Turkey blocked access to the website of prominent evolutionary biologist Richard Dawkins after a creationist complained the website was "defamatory" of religion.
Similarly, Egypt and Pakistan forced the United Nations Human Rights Commission to ban in-depth discussion of religions after a non-governmental organization (NGO) representative to the Commission described female genital mutilation as sanctioned by Islamic law.
It should come as no surprise, then, that over 130 NGOs from across the ideological spectrum have signed a joint statement warning that banning "defamation of religions" is incompatible with free speech rights.
A recent report from the U.S. Commission on International Religious Freedom adds that the OIC effort is based on domestic laws OIC members already exploit domestically to "intimidate and … detain" religious minorities.
Nevertheless, the Obama administration wants to work with the OIC. Indeed, the cooperation has already begun. In September, 2009, the United States "surprised" many in the Human Rights community by co-sponsoring a resolution with Egypt that condemned "negative religious stereotyping," "incitement to discrimination," and the "promotion by certain media of false images and negative stereotypes." News sources quoted American diplomats saying the measure was part of the Obama administration's "effort to reach out to Muslim countries."
In fairness, the Obama administration is not the first to believe such resolutions will come at no cost to Americans' free speech rights. In fact, the resolution it sponsored in 2009 borrows language from a treaty President George H. W. Bush pressured a reluctant Congress to ratify in 1993. Article 20 of that International Covenant on Civil and Political Rights (ICCPR) prohibits "any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination…." The Senate approved the ICCPR, subject to the condition that article 20 not "require" the United States to "restrict the right of free speech … protected by the Constitution."
Presumably, the Obama administration believes a similar caveat would shield free speech rights from the consequences of a prohibition on defamation of religions.
The problem is that, notwithstanding the reservations, the very act of supporting these treaties, damages the First Amendment claim.
The reason is free speech rights are not absolute. It is constitutional for the government to restrict the content of speech where necessary to further a "compelling government interest." While treaties cannot inherently trump the First Amendment, they can supply a compelling interest because courts may find the United States has an overriding interest in following international law.
This scenario is not hypothetical. It has actually occurred.
In the 1986 case, Finzer v. Barry, the U.S. Court of Appeals for the District of Columbia Circuit upheld Washington's ban on displaying critical messages within 500 feet of a foreign embassy. The court reasoned the law served a compelling government interest in fulfilling the Vienna Convention on Diplomatic Relations, which requires signatories to protect an embassy from "impairment of its dignity." The U.S. Supreme Court reversed, but on other grounds.
The lesson is that international treaty commitments can impair domestic free speech rights by creating a compelling government interest in censoring speech. The standard treaty reservation is then of no help, because it covers only speech rights "protected by the Constitution" and, where there is a compelling interest, the speech is not protected.
That is why it is critical that the U.S. government resist the temptation to support these initiatives at the outset.
There may be strategic value in currying favor with the Islamic world, but supporting OIC initiatives that threaten free speech opens the Obama administration to the very criticism it leveled against its predecessor in the White House -- that, in the name of security, they compromised our fundamental values.
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Daniel Huff is the Director of the Legal Project at the Middle East Forum. He previously served as Counsel to the U.S. Senate Judiciary Committee, handling a number of matters related to American national security and to civil and criminal law. As a member of the staff of the Judiciary Committee, one of his priorities was the Free Speech Protection Act, which was designed to combat "libel tourism," the practice of intimidating American authors by suing them for libel in foreign jurisdictions less protective of freedom of speech and expression than is the U.S.A.
Prior to his service in Washington, D.C., Huff was an associate at McKinsey & Company in New York, N.Y. A member of the New York Bar, Huff is a graduate of Columbia University Law School, where he was a Harlan Fiske Stone Scholar.
The foregoing article by Daniel Huff was originally published in Fox News, July 6, 2010, and can be found on the Internet website maintained by the Middle East Forum, a foreign policy think tank which seeks to define and promote American interests in the Middle East, defining U.S. interests to include fighting radical Islam, working for Palestinian Arab acceptance of the State of Israel, improving the management of U.S. efforts to promote constitutional democracy in the Middle East, reducing America's energy dependence on the Middle East, more robustly asserting U.S. interests vis-à-vis Saudi Arabia, and countering the Iranian threat. (URL: http://www.meforum.org/2684/first-amendment-in-jeopardy)
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