by Daniel Huff
The Declaration of Independence did more than dissolve the bonds with
That is why it is hard to believe that free speech, the pillar of American democracy, could be in any actual jeopardy from U.N. treaties banning "hate speech" or recent efforts to proscribe what is being called "defamation of religions." This complacency is reinforced because the
The problem is international law and the First Amendment are not independent issues.
The existence of treaties limiting speech can color the way
This subtle danger lurks in the administration's recent announcement that the
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.
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 the OIC effort is based on domestic laws OIC members already exploit domestically to "intimidate and … detain" religious minorities.
Nevertheless, the administration wants to work with the OIC. Indeed, the cooperation has already begun. In September 2009, the
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
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
This scenario is not hypothetical. It has actually occurred.
In the 1986 case, Finzer v. Barry, the U.S. Court of Appeals for the D.C. Circuit upheld
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
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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