It was nice to hear Secretary of State Hillary Rodham Clinton say on October 26, "I strongly disagree" with Islamic countries seeking to censor free speech worldwide by making defamation of religion a crime under international law.
But watch what the Obama administration does, not just what it says. I’m not talking about its attacks on Fox News. I’m talking about a little-publicized October 2 resolution in which Clinton’s own State Department joined Islamic nations in adopting language all-too-friendly to censoring speech that some religions and races find offensive.
The ambiguously worded United Nations Human Rights Council resolution could plausibly be read as encouraging or even obliging the U.S. to make it a crime to engage in hate speech, or, perhaps, in mere "negative racial and religious stereotyping." This despite decades of First Amendment case law protecting such speech.
To be sure, the provisions to which I refer were a compromise, stopping short of the flat ban on defamation of religion sought by Islamic nations, and they could also be construed more narrowly and innocuously. It all depends on who does the construing.
Is it "negative stereotyping" to say that the world’s most dangerous terrorists are Islamists, for example? Many would say yes.
I sketch below how the resolution could be construed to require prosecuting some offensive speech and how it could be used in the long run to change the meaning of our Constitution and laws, based on doctrines developed by legal academics including Obama appointee Harold Koh, the State Department’s top lawyer.
Also troublesome on the free-speech front are various remarks by Mark Lloyd, the Federal Communications Commission’s associate general counsel and chief diversity officer. Lloyd asserted in a 2006 book, "The purpose of free speech is warped to protect global corporations and block rules that would promote democratic governance." He co-authored a 2007 report calling for regulatory changes to close "the gap between conservative and progressive talk radio." In 2008, he praised the "incredible … democratic revolution" of Hugo Chavez and implied approval of the thuggish Venezuelan strongman’s pattern of shutting down news media opposed to him.
That’s how I read Lloyd’s videotaped statement, first aired by Glenn Beck of Fox News, in which he said: "The property owners and the folks who then were controlling the media rebelled [against Chavez], worked, frankly, with folks here in the U.S. government, worked to oust him. But he came back with another revolution, and then Chavez began to take very seriously the media in his country."
Then there was the June 5 high school commencement speech in which White House Communications Director Anita Dunn called Mao Zedong — one of history’s greatest mass murderers and an implacable enemy of free speech — one of "my favorite political philosophers." Dunn has, coincidentally, been the point person in President Obama’s attacks on Fox News.
The administration is seeded with left-liberal thinkers who have smiled on efforts to punish speech that is offensive to favored racial and religious groups.
This is not to suggest that Dunn approves of mass murder or that Obama wants to censor critics. But the ideologies of appointees such as Lloyd and Dunn can have consequences. And in his eagerness to please international opinion, Obama has now taken a small but significant step toward making bad law.
Law — especially international law — evolves below the radar, in small moves largely ignored by the mainstream media. Although international resolutions have traditionally not been seen as binding law, the Obama administration is seeded with left-liberal thinkers who have long sought to spin what some call "transnational" law out of such stuff, and who have smiled on efforts to punish speech that is offensive to favored racial, religious, and other groups.
Such attitudes may help explain the administration’s decision to join the U.N. Human Rights Council in the first place. Obama reversed a Bush administration policy of shunning this deeply politicized body, which counts as members several flagrant human-rights abusers and which is preoccupied with attacking Israel.
The council’s October 2 resolution is ostensibly an endorsement of "freedom of opinion and expression," which seems ironic, given the track records of such members as China, Cuba, Egypt, and Saudi Arabia.
But the real problem is a provision, which the U.S. championed jointly with Egypt, exuding hostility to free expression.
That provision "expresses its concern that incidents of racial and religious intolerance, discrimination and related violence, as well as of negative racial and religious stereotyping 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 obligations under international human-rights law, to address and combat such incidents" (emphasis added).
What is this clot of verbiage supposed to mean?
It could be read narrowly as a commitment merely to denounce and eschew hate speech. But it could more logically be read broadly as requiring the United States and other nations to punish "hostile" speech about — and perhaps also "negative stereotyping" of — any race or religion. It’s a safe bet, however, that the Islamic nations that are so concerned about criticisms of their religion will not be prosecuting anyone for the rampant "negative racial and ethnic stereotyping" and hate speech in their own countries directed at Jews and sometimes Christians.
Eugene Volokh of the University of California (Los Angeles) Law School pointed out on his Volokh Conspiracy blog that the reference to "obligations under international human-rights law" could be seen as binding the United States to a provision of the International Covenant on Civil and Political Rights requiring that hate speech "shall be prohibited by law." The U.S. has previously rejected that provision.
Added Volokh: "Advocacy of mere hostility — for instance… to radical strains of Islam [or any other religion] — is clearly constitutionally protected here in the U.S.; but the resolution seems to call for its prohibition. [And] if we are constitutionally barred from adhering to it by our domestic Constitution, then [the administration’s vote was] implicitly criticizing that Constitution, and committing ourselves to do what we can to change it." Such a stance could be seen as obliging the executive branch to urge the Supreme Court to overrule decades of First Amendment decisions.
Obama should not take even a small step down the road toward bartering away free speech for the sake of international consensus.
Far-fetched? Not according to the hopes and expectations of many international law scholars. "An international norm against hate speech would supply a basis for prohibiting it, the First Amendment notwithstanding…. In the long run, it may point to the Constitution’s more complete subordination," Peter Spiro, a professor at Temple University Law School, asserted in a 2003 Stanford Law Review article.
Similarly, if more ambiguously, Koh wrote in another 2003 Stanford Law Review article, "Our exceptional free-speech tradition can cause problems abroad, as, for example, may occur when hate speech is disseminated over the Internet." The Supreme Court, suggested Koh — then a professor at Yale Law School — "can moderate these conflicts by applying more consistently the transnationalist approach to judicial interpretation" that he espouses.
Translation: Transnational law may sometimes trump the established interpretation of the First Amendment. This is the clear meaning of Koh’s writings, although he implied otherwise during his Senate confirmation hearing.
In my view, Obama should not take even a small step down the road toward bartering away our free-speech rights for the sake of international consensus. "Criticism of religion is the very measure of the guarantee of free speech," as Jonathan Turley, a professor at George Washington University Law School, wrote in an October 19 USA Today op-ed.
Even European nations with much weaker free-speech traditions than ours were reportedly dismayed by the American cave-in to Islamic nations on "racial and religious stereotyping" and the rest.
The pressure to censor harsh criticisms of Islam, as well as other religions and groups, began to intensify after bloody riots by Muslims around the world in 2006 over the publication in Denmark of cartoons ridiculing Muhammad.
People have reportedly been prosecuted in Austria, Finland, and India for asserting that Muhammad’s marriage to a 9-year-old girl made him a "pedophile." Brigitte Bardot was convicted in 2008 of provoking racial hatred for saying in a letter to France’s interior minister that Muslims were ruining France. A 15-year-old boy in Britain was charged under the Racial and Religious Hatred Act last year for holding up a sign outside a Scientology building calling the practice "a dangerous cult." And so on.
We have had no such overt federal government censorship in this country so far. But we have seen plenty of private censorship and self-censorship, especially at our universities, most of which have thinly disguised speech codes.
One example is the spineless decision in August by Yale President Richard Levin and the Yale University Press to remove the Danish cartoons (and all other pictures) of Muhammad from a book about the drawings.
The reaction of the academic world to such episodes has been apathy. The same is true of the response by the academic world, the news media, and civil-liberties groups to the October 2 resolution.
Take The New York Times and the American Civil Liberties Union. Both were once dependable guardians of uninhibited, robust, and wide-open debate, regardless of whose ox was gored. But as best I can tell from their websites, neither has said a word about the Obama administration’s collaboration with would-be censors sitting on the U.N. Human Rights Council.
This article appeared in the Saturday, October 31, 2009 edition of National Journal.