Is the First Amendment in Jeopardy?

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 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 U.S. government has always reserved the right to ignore any treaty provisions inconsistent with the First Amendment.

The problem is 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 administration’s recent announcement that the U.S. 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 U.N. Human Rights Committee to ban in-depth discussion of religions after an NGO representative to that body 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 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 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 U.S. 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 U.S. 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 D.C. 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 which requires signatories to protect an embassy from “impairment of its dignity.” The 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.

Daniel Huff is the Director of the Legal Project at the Middle East Forum. He previously served as counsel to the Senate Judiciary Committee and as an associate at McKinsey & Company. 

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