On October 1, 2009, the Obama administration in conjunction with the Egyptian government, introduced an anti-free speech measure to the United Nationâ€™s Human Rights Council (HRC). It was adopted the next day without a vote.
Earlier this year, when the United States sought a seat on the HRC, it was a controversial decision. Many who found the HRC neither credible nor useful, opposed the move. Yet, others were more optimistic that America could change the HRC from within. Perhaps the U.S. could spur debate stemming from its opposition to China, Sudan, Libya, Cuba, and Saudi Arabia on critical human rights votes.
Little evidence suggests that Americans on either side of the aisle contemplated the US entering the ring and supporting the oppositionâ€™s anti-freedom measures. Yet now, the current administration has done worse: itâ€™s leading the charge.
The draft resolution, misleadingly titled â€śFreedom of Opinion and Expressionâ€ť includes two troubling components. First, it calls on nation states to take â€śeffective measuresâ€ť to address and combat â€śany advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violenceâ€ť. It expresses concern and condemnation of â€śnegative stereotyping of religions and racial groupsâ€ť. It further attempts to construe this as an international human rights law and obligation. Second, it recognizes the mediaâ€™s â€śmoral and social responsibilitiesâ€ť and the â€śimportanceâ€ť that its potential voluntary code of conduct could play in combating intolerance.
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This resolution appears to stem from, and constitute a step toward, the Organization of Islamic Conferenceâ€™s resolution to â€ścombat defamation of religionsâ€ť. The OICâ€™s resolution would ban outright the â€śdefamingâ€ť of religions, speech critical of religion (even if accurate), and open discussion about any negative consequences resulting from the implementation of religious beliefs (such as Sharia law).
Though both resolutions mention â€śreligionsâ€ť generally, the context and references of the resolutions make them almost certain to apply only or disproportionately to Islam. Indeed, the defamation of religions resolution singles out treatment of Islam. Yet not surprisingly, the OIC has blatantly refused to curtail hate speech against Jews or Israel.
Further, it is the nature of religion to include a component of exclusivity, thus making it impossible to express oneâ€™s theology accurately without making â€śdefamatoryâ€ť remarks against another theology. For example, merely preaching that Jesus is the son of God can be viewed as an inflammatory remark and an affront to Islam. Additionally, the wording of this resolution makes its violation subjectively determined and comes dangerously close to outlawing certain emotions, such as hostility toward Islam or Muslims.
Critically important is the resolutionâ€™s attempt to internationalize norms on speech, potentially usurping fundamental constitutional rights. Strict constructionists of the US constitution view the constitution as â€śthe supreme law of the landâ€ť (as the constitution expressly states), whereas those who view the constitution as â€śa living, breathing documentâ€ť might not. But even under a strict construction, when the US signs a treaty, the treaty becomes binding on the US. Though this UN resolution does not constitute a treaty, it is fair to presume that because it is a US-led initiative, the US should be bound by it.
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Also problematic is the resolutionâ€™s attempt to make the restriction of free speech a human right. In fact, it is free speech that constitutes a human right and not its restriction. Ideologies, ideas and religions do not, and should not be afforded â€śhuman rightsâ€ť. They should be fair game for criticism, analysis, open debate and discussion. Religions and ideologies cannot be â€śdefamedâ€ť. Once ideologies are afforded protection from criticism, it is in direct contradiction to individual human rights. Moreover, some of the language in the resolution is vague and open to interpretation. Given the parties on the HRC who adopted it, a broad construction of speech restrictions is likely.
It is no accident that countries which have no freedom of expression show support for this resolution. For example, Ambassador Hisham Badr from Egypt, in discussing his satisfaction with the resolution, stated that â€śfreedom of expressionâ€¦..has sometimes been misused.â€ť He went on to imply that media which fails to comply with limitations on free speech are unethical.
Pakistan Ambassador Zamir Akram, speaking on behalf of the OIC, confirmed that the resolution allows free speech to be trumped by the suppression of that which â€śdefamesâ€ť religion or expresses a negative stereotype of religion. He asserted that freedom of expression is important but this right carries â€śduties and responsibilitiesâ€ť, including the need to fight hate speech. He articulated the view that defamation of religion and negative stereotyping are forms of religious hatred. He made clear that in the OICâ€™s interpretation, such negativity applies not just to individuals, but to religions and belief systems, proclaiming that this constitutes a human rights violation.
Jean-Baptiste Mettei from France, speaking on behalf of the European Union, appears to be in denial about the meaning and impact of this resolution. While prefacing his remarks with praise for the resolution, the French Ambassador then declared that human rights laws protect individuals in free speech and freedom of religion and does not protect belief systems. The EU summarily rejected the concept of defamation of religion, and expressly denounced the notion that the media has a moral and social responsibility to curtail speech. He argued that states should not interfere with the work of journalists, and acknowledged their right to editorial independence. As such, the EU could not support the restrictions on journalistic speech embodied in the resolution.
In the past, when the US addressed international speech norms, it went out of its way to ensure that treaties by which it was bound would not restrict free speech or undermine Americaâ€™s first amendment protections. But now, change has come.
Arguably relinquishing one of Americaâ€™s most fundamental freedoms, Obama is once again bowing down to the Muslim world. The interim ranking US diplomat, Douglas Griffiths explained, â€ś[T]his initiative is a manifestation of the Obama administrationâ€™s commitment to multilateral engagement throughout the United Nations and of our genuine desire to seek and build cooperation based upon mutual interest and mutual respect in pursuit of our shared common principles of tolerance and the dignity of all human beings.â€ť However, to the OIC, â€śrespectâ€ť means the silencing of offensive speech against Islam.
With all due respect Mr. President: the attainment of freedom and human rights is not tantamount to winning a popularity contest. And capitulation is not leadership. It is a sad state of affairs when France refutes major portions of a United States initiative because the initiative undermines fundamental freedoms.