A proposal sponsored by the Obama administration at the United Nations that purports to seek protection for “freedom of opinion and expression” actually is a call for a worldwide crackdown on freedom of speech and a mandate for nations to ensure “that relevant national legislation complies with … international human rights obligations” – a clear threat to the First Amendment, according to critics.
The resolution was submitted recently by the United States and Egypt. It was approved by the U.N. Human Rights Council as a first step in its process through the international organization.
It demands that all nations condemn and criminalize “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.”
Steven Groves of the Heritage Foundation told WND the issue is not about free speech at all but about installing international precedents to stifle any criticism of Islam.
Groves has written for the Heritage Foundation on the issue, citing the demands from members of the Organisation of the Islamic Conference that national legislatures pass laws to ensure protection against “defamation of religions.”
“Such a ban … could not withstand legal scrutiny in the United States,” he wrote. “The First Amendment to the U.S. Constitution protects free speech and expression, even when speech is offensive or insulting. Moreover, a religious 'speech code' would disrupt the assimilation of religious minorities that has occurred throughout U.S. history and could breed resentment rather than understanding among America's religious communities.”
He also cited the need for the U.S. to oppose strongly any such move, “given the penchant of some federal judges – including justices on the U.S. Supreme Court – to rely on the decisions and opinions of international courts and organizations.”
Jay Sekulow, chief counsel of the American Center for Law and Justice as well as the European Centre for Law and Justice, which has been involved in fighting “defamation of religion” plans at the U.N., said the “free speech” resolution itself “incites discrimination.”
“The proclamation of the Gospel in Muslim countries has been called incitement of religious discrimination,” he told WND. “The U.S. backing of this is a mistake. The Universal Declaration of Human rights protects free speech.
“I am very concerned the U.S. is co-authoring something like this,” he said.
Sekulow cited the wording in several parts of the proposal, which was reported widely by other media at the time of its adoption by the U.N.'s Human Rights Council in stories that cited almost exclusively the “free speech” concept.
But Sekulow noted the proposal also raises “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.”
Likewise, in paragraph 6, the U.N. writing stresses “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.”
The U.N. General Assembly has approved a “defamation of religions” resolution in each of the three sessions from 2005 to 2007. The text always has been similar, and it always has had major support from Islamic nations with opposition from Western democracies, including the U.S.
Groves' evaluation noted that even “offensive speech and expression” is protected by the U.S. Constitution except in narrow areas such as obscenity and libel.
“Blasphemy, sacrilegious statements, and any other speech or expression that insults or denigrates organized religion is, for better or worse, protected by the First Amendment,” he wrote.
Online critics of the administration were alarmed that it now is the United States pursuing a plan that would protect “freedom of opinion and expression” by cracking down on statements critical of issues, groups or religions.
“First of all, there's that little matter of the First Amendment, which preserves Americans' right to free speech and freedom of the press, which are obviously mutually inclusive. Any law that infringed on speech at all – far less in such vague and sweeping terms – would be unconstitutional,” he wrote.
“'Incitement' and 'hatred' are in the eye of the beholder – or more precisely, in the eye of those who make such determinations,” he continued. “The powerful can decide to silence the powerless by classifying their views as 'hate speech.' The Founding Fathers knew that the freedom of speech was an essential safeguard against tyranny: the ability to dissent, freely and publicly and without fear of imprisonment or other reprisal, is a cornerstone of any genuine republic. If some ideas cannot be heard and are proscribed from above, the ones in control are tyrants, however benevolent they may be.”
The resolution cites the “right to freedom of opinion and expression” as “one of the essential foundations of a democratic society.”
It also expresses deep concern over “violations of the right to freedom of opinion and expression.”
But it also cites the responsibility of states to “encourage free, responsible and mutually respectful dialogue.”
The resolution then “calls upon all states … to take all necessary measures to put an end to violations of these rights and to create the conditions to prevent such violations, including by ensuring that relevant national legislation complies with their international human rights obligations and is effectively implemented.”
It also demands that nations “promote a pluralistic approach to information and multiple points of view by encouraging a diversity of ownership of media and of sources of information.”
Egyptian spokesman Hisham Badr told the assembly, according to a U.N. report, that freedom of expression sometimes has been “misused to proliferate negative racial and religious stereotyping and incitement to racial and religious hatred.”
He said “every state must condemn and resolve to combat them in according with the obligation stipulated in human rights law,” the U.N. said.
Speaking for the United States on behalf of the plan, Chargé ad interim Douglas M. Griffiths said the effort was intended to build on the commitment from President Obama in a Cairo speech that the U.S. was ready to “help bridg[e] the unhelpful divide regarding freedom of opinion and expression,” according to the U.N.
Zamir Akram of Pakistan, speaking on behalf of the Organisation of the Islamic Conference noted the “duties and responsibilities” of nations to fight hate speech. He cited the need to protect not only individuals but religious and belief systems from “negative stereotyping.”
“Now no less distinguished a personage than the president of the United States has given his imprimatur to this tyranny; the implications are grave,” Spencer continued. “The resolution also condemns 'negative stereotyping of religions and racial groups,' which is of course an oblique reference to accurate reporting about the jihad doctrine and Islamic supremacism – for that, not actual negative stereotyping or hateful language, is always the focus of whining by the Organisation of the Islamic Conference (OIC) and allied groups. They never say anything when people like Osama bin Laden and Khalid Sheikh Mohammed issue detailed Quranic expositions justifying violence and hatred; but when people like Geert Wilders and others report about such expositions, that's 'negative stereotyping.'”
Eugene Volokh, who teaches free speech law, criminal law, tort law, religious freedom law and other subjects at UCLA, and also founded the Volokh Conspiracy weblog, said that the First Amendment protecting speech in the United States isn't so secure all of a sudden.
“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,” he said.
“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,” he said.
The administration, he opined, 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).
“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,'” Volokh said.
“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,” he said.
“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,'” he said.
Spencer reported in 2008 the Secretary General of the Organization of Islamic States, Ekmeleddin Ihsanoglu, warned, “We sent a clear message to the West regarding the red lines that should not be crossed” regarding free speech about Islam and terrorism.
“The official West and its public opinion are all now well-aware of the sensitivities of these issues. They have also started to look seriously into the question of freedom of expression from the perspective of its inherent responsibility, which should not be overlooked,” Ihsanoglu continued, according to Spencer's report.
On Volokh's Web forum, one participant said, “Just another example of how the Chicago Mafia that is now running this country is going to destroy it, in advocacy of their beloved New World Order, in which the USA is secondary to 'international groups,' and indeed is held equal with, let us say, the Congo, or perhaps Belize, or Luxembourg, etc.”
Added another, “Future liberal academics and judges will cite resolutions like this to claim the existence of a 'compelling interest' in banning 'hate speech' that overrides free speech rights. … In practice, hate speech laws are used in most of the world to silence dissent, not protect vulnerable minorities.”
The 57 member nations of the Organisation of the Islamic Conference have lobbied for the “anti-defamation” plan, which is based on the Cairo Declaration of Human Rights in Islam, since 1999. The Cairo declaration states “that all rights are subject to Shariah law, and makes Shariah law the only source of reference for human rights.”
The U.S. State Department also has found the proposal unpalatable.
“This resolution is incomplete inasmuch as it fails to address the situation of all religions,” said a statement from Leonard Leo. “We believe that such inclusive language would have furthered the objective of promoting religious freedom. We also believe that any resolution on this topic must include mention of the need to change educational systems that promote hatred of other religions, as well as the problem of state-sponsored media that negatively targets any one religion.”