That’s in his new National Journal column; Taylor is highly respected (by others as well as by me) and known to be quite moderate, so I hope this will bring the issue more attention. And it leads me to ask this question:
The Obama Administration’s cosponsored U.N. Human Rights Council resolution puts it on record as urging other countries “to take effective measures, consistent with their obligations under international human-rights law, to address and combat” “any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence” (and possibly even “negative racial and religious stereotyping”). In context, this is a call for legal punishment, not just for counterspeech or social sanctions. (For more on why this is so, see my earlier post.)
Nor is the call limited to punishment of speech that falls into one of the narrow free speech exceptions recognized under American law (such as the one for incitement that’s intended to produce imminent — presumably within a few hours or at most a few days — lawless conduct, and likely to produce such conduct); “incitement to hostility,” for instance, is clearly constitutionally protected in the U.S., as is what most other countries would call “incitement to discrimination ... or violence,” since the incitement exception is narrowly limited to incitement of imminent misconduct, not of misconduct at some unspecified time in the future.
So say that some foreign official, for instance from a conservative Muslim country, asks the Administration about this:
Here you are urging all countries to take effective measures to address and combat any advocacy of religious hatred that constitutes incitement to hostility. And yet in your own country there are prominent speakers — radio talk show hosts, columnists, bloggers, and the like — are arguing that our brand of supposedly ‘extremist’ Islam is evil, dangerous, and terrorist-coddling. That sounds to us like advocacy of religious hatred, and it’s certainly incitement to hostility. What are you going to do about it?
How should the Administration respond?
(a) “We agree that this sort of advocacy of religious hatred that constitutes incitement to hostility should be punished, and we will try to see to it that it is.”
(b) “We agree that this sort of advocacy should be punished, but unfortunately the constitutional rules under our First Amendment keep it from being punished. But we’re doing what we can to relax those rules, for instance by appointing judges that will interpret the First Amendment more in line with international norms, or by having the Solicitor General file briefs urging judges to interpret the First Amendment that way.”
(c) “We agree that this sort of advocacy should be punished, but unfortunately the constitutional rules under our First Amendment keep it from being punished. And it’s too tough for us politically to try to change that, so we’re going to be noncompliant with our own proposal.”
(d) “Actually, though this looks like a call for everyone to restrict such speech, actually if you interpret ‘consistent with their obligations under international human-rights law’ to refer only to those treaties that each country has signed, it turns out that this call binds other countries and not us, since when we signed any treaties that call for such restrictions, we expressly added reservations saying we wouldn’t restrict such speech. So really this is a call for other countries to restrict speech, not for us to restrict speech. Bet you didn’t realize that!”
(e) “Of course this is a call for everyone to restrict such speech, but we don’t really think that’s a good policy. We just think it’s more speech-protective than what most countries do, so we’d like them to shift at least to this intermediate position. We ourselves, however, won’t move to this intermediate position. We will stick with our own approach to free speech, and not follow the proposal we’re making here. This is a proposal for countries like yours, not a country like ours.”
(f) “Come now — this is international human rights. No-one expects it to be taken seriously. You can keep doing what you like, we can keep doing what we like.”
(g) “Resolution? What resolution? No resolution. Hey, look, over there — shiny!”
TruePath says:
h) Yes, we realize that some people might want to interpret this clause as calling for legal punishment of this behavior but that’s not what it literally says. If this statement was meant to clearly require legal punishment of this behavior it could have been unequivical so we feel our obligation is only to respond with counter speech and criticism.
Sure, it’s an unfortunate choice of wording but we are willing to support the literal meaning and we feel the value of the rest of the agreement outweighs this poor choice of wording.
After all the whole reason for obscure phrasing like this in diplomacy is to make sure people with differing viewpoints can sign the same document.
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October 30, 2009, 6:57 pmRyan Waxx says:
...
...
... So, do you want Rush Limbaugh, Glen Beck and the management of FOX news delivered in a police wagon or shipped by UPS to the Hague?
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October 30, 2009, 7:01 pmMark Field says:
Does international human rights law require that incitement be “imminent” before it is punished? If so, then there’s no inconsistency. If not, then they should add the word imminent.
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October 30, 2009, 7:04 pmEugene Volokh says:
Mark Field: No, international human rights law doesn’t limit the ban on allegedly racist or religiously bigoted advocacy to incitement of imminent illegal conduct. Plus in any event even incitement of imminent hostility, as opposed to incitement of imminent discrimination or violence, would not be punishable under First Amendment law.
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October 30, 2009, 7:09 pmAlexia says:
i.) We’re going to use this get our base all fired up about it then use their enthusiasm to pass bills that will make some rich people even richer in lieu of any real change.
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October 30, 2009, 7:09 pmMithras says:
Uh, the only person I know of talking about this is Volokh. I don’t think the Democratic base cares much about UN HRC resolutions.
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October 30, 2009, 7:18 pmeggert says:
“Taylor is highly respected (by others as well as by me) and known to be quite moderate,”
Actually, Stuart Taylor is a [gratuitous vulgarity removed –EV].
Prior to his handwringing about the Duke Lacrosse case, he demonstrated little interest over the years of the inequities of the criminal justice system. Apparently it took some rich white fratboys being falsely accused to open his eyes to the dangers of prosecutorial misconduct.
The National Journal specializes in adoring stroke jobs for “big law” type firms — not what anyone would call a serious publication.
The fact that you think Taylor is “quite moderate” says a lot about your view of the political spectrum.
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October 30, 2009, 7:37 pmPeteP says:
I wonder if the UN and Obama have in mind that this should apply to muslims who say ‘kill the infidel’, and ‘non-muslims are unclean dogs and pigs’ etc ?
And I wonder how well such would be enforced, let’s say, in some of the countries that invented and pushed the Resolution — like Saudi Arabia, Egypt, Jordan, etc etc ?
Show of hands — how many people think the muslim countries / OIC etc that created this bad joke Obama signed on to think it applies to muslims, or is it jsut to place limits on everyone BUT muslims ?
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October 30, 2009, 7:42 pmtroll_dc2 says:
It applies to everybody but Muslims.
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October 30, 2009, 7:46 pmkarrde says:
Is there an place for this one?
(j) “We are looking into it. In the meantime, we have a list of inflammatory things that devout religious leaders in your country have said about Christians/Jews/Bah’ai/Hindu/Shinto, as well as the Secular West’s disavowal of any specific religion. We would encourage you to be as forthright in your punishment of such speech as you would have us be.”
I don’t know if such behavior exists in the given hypothetical; I do suspect it can be found in most attempts to build a real-world example.
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October 30, 2009, 7:47 pmOren says:
k) “None of the speech cited comes anywhere close to advocating racial or religious hatred. Even the most far right folks on TV (does Beck get that title now or is it still Papa Bear?) fall far short of advocating hostility or violence towards Muslims.”
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October 30, 2009, 8:05 pmMac says:
They’ll care if they think they could shut down talk radio with this.
Question. Who decides if certain speech falls under the definition of “any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence” (and possibly even “negative racial and religious stereotyping”?
And, who decides what the punishment is i.e. civil, criminal, a ban on future speech, whatever?
As there have been very few, maybe two, I think, cases of violence against Muslims since 9/11, how does one (whomever that one is) decide that certain speech is an incitement?
Would this cover the NewsWeek author who falsely claimed that American soldiers in Guantanamo were flushing the Koran down the toilet and 17 people died in Afghanistan over this? Or does the actual outcome of violence due to certain speech, provable in this case, not count? Is it only the “imagined or potential” that counts, not the reality?
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October 30, 2009, 8:07 pmyankee says:
What about (l) “we interpret ‘incitement to discrimination, hostility, or violence’ to mean ‘incitement of imminent lawless action.’”?
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October 30, 2009, 8:28 pmMark Field says:
In that case, even yankee’s suggestion wouldn’t be enough. The resolution itself would have to include a definition consistent with the 1A. The Administration needs to withdraw this.
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October 30, 2009, 8:52 pmDan Hamilton says:
You have to be kidding. Obama is a Constitutional Professor! He knows that this is unconstitutional BS. He just doesn’t care. Dems only want Freedom of Speach for their speach. All others can just shut up or be shut up!
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October 30, 2009, 9:28 pmA. Zarkov says:
I predicted this a year ago when I said look for a “hate speech” exception to 1A. Now we have this from our would-be dictator masquerading as a president. This is the kind of thing people should take to the streets over.
These anti-hate speech laws are selectively enforced in Europe and the UK. Say something negative about Islam and you get charged with advocacy of religious hatred. But when the Muslims call Jews pigs and worse, the European government either ignore them or come up with a lame excuse not to prosecute.
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October 30, 2009, 9:41 pmloki13 says:
Perhaps there could be a provision dealing with “histrionic speech” instead?
In all seriousness, I agree with Mark Field– while I accept (if not necessarily respect) that other countries will have different legal regimes than ours when it comes to speech rights, I do not believe we should ever encourage anything that is inconsistent with the First Amendment.
It is not only the lodestar of our constitutional jurisprudence, it is the guiding light of our democratic values. Other countries do not have to share it, but we set a poor example when we do not endorse it.
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October 30, 2009, 10:06 pmOren says:
That’s more of less where I was going. There’s nothing that I’ve seen that comes close to meeting this standard.
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October 30, 2009, 10:12 pmRyan Waxx says:
If you actually doubt that hate speech laws tends to be selectively enforced, you’ve got a lot a research time ahead of you. In all seriousness.
And the proposed text is perfectly compatible with the first amendment, if that amendment gains a new exception in that “hate speech” is not protected speech. That’s an idea that has serious traction on the far left, so it would be appreciated if you not treat people who express concerns over the idea as histrionic.
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October 30, 2009, 10:17 pmA. Zarkov says:
EV your link to the National Journal does not work. [Whoops, fixed, thanks! –EV]
Here it is.
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October 30, 2009, 10:17 pmJoe says:
Taylor is highly respected (by others as well as by me) and known to be quite moderate,
Since some do not respect the guy & don’t find him to be “quite moderate” in various cases, in fact saw him be [bad word], to this I say “yeah ok.”
Anyway, sure, read the article. Here’s a better link. First:
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.
Second, we hear of the “ambiguously worded” resolution that “could plausibly” be interpreted that “could also be construed more narrowly and innocuously” so Taylor goes on to show how it “could be construed” ...
and then goes on to quote something from Glen Beck’s show, notes Obama’s communication director is a big fan of Mao Zedong [she later noted that the comment was ironic; see here for the context which is not noted in the article], “translates” random statements of people to show how scary the “seeded with left-liberal thinkers” Obama Administration truly are, cites his friend Prof. Volokh here, and ends with the implication the NYT and ACLU really are hypocritical for not criticizing Obama on this matter. Since you know both never criticize his policies. Or, to be fair, I can “plausibly” say he just thinks those two sources missed the boat on this one.
All very moderate.
I assume any number of resolutions of this sort can be interpreted in scary ways, including those that don’t start with an extended citation on the importance of free expression. Taylor argues the resolution could plausibly put in a policy “obliging the U.S. to make it a crime to engage in hate speech.”
To the degree this is against the 1A, obviously, it is presumptively void & even if EV’s reasoning is a logical interpretation, constitutional avoidance would mean we would not view it that way if possible. And, given all the weasel words both use, we probably can.
EV notes the resolution cites International Covenant on Civil and Political Right, but it cites a certain section of it, not the one EV cites. The citation of Human Rights Council Resolution 7/36 is troubling [“which stipulates that the prohibition of the dissemination of all ideas based upon racial superiority or hatred is compatible with the freedom of opinion and expression”] but Clinton’s statement alone makes me wary about just what this small part really means.
When moderate Mr. Taylor has to do some gymnastics to find problems, I’d be open to remain agnostic. I’m not sure what “appeals .. to consider favourably his requests” related to someone who does various things, not just targets hate speech, really means.
But, seriously, that part — small part — of the measure is dubious. Maybe others are too. I still don’t think Taylor is too convincing here. Just me though.
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October 30, 2009, 10:20 pmLeo Marvin says:
Does that mean you agree with EV that urging other countries “to take effective measures [...] is a call for legal punishment, not just for counterspeech or social sanctions?” Because I don’t think it’s so clear. Here are some of the other operative terms from the UNHRC Resolution:
I’d argue that at least “take all necessary measures,” “ensure” and “adopt and implement laws and policies” are less equivocal ways than “take effective measures” to call for legal punishment. In context, “take effective measures” seems, at worst, ambiguous.
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October 30, 2009, 10:23 pmRyan Waxx says:
You forget that there’s also a movement to adapt and interpret our constitution using foreign law as a guide. And since it’s a treaty, it’s not even foreign law... it’s the law of the land.
Again, this is a move to make a hate speech exception to the 1a. Having us sign a treaty that assumes such an exception is not a first move... that’s reserved for our current hate speech and anti discrimination law... but it is a logical way to lay the groundwork for the endgame.
If we do see a hate speech exception added... this treaty will be cited as one of the reasons for it. Count on that.
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October 30, 2009, 10:25 pmLeo Marvin says:
I agree 100%. I’m just not convinced that’s what we’ve done.
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October 30, 2009, 10:29 pmLeo Marvin says:
BTW, just to be clear, I think even the ambiguity alone is enough to justify dumping this thing. I just disagree that it necessarily says what EV argues.
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October 30, 2009, 10:38 pmSarcastro says:
Okay, if you take the language, add in the international law movement, plus the speculative enforcement bias, mix in the liberal Judiciary’s super liberal liberalness, factoring in how libs hate speech and love diversity...carry the one...
SHARIA LAW!
With such a simple set of premises too!
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October 30, 2009, 10:47 pmOren says:
No. Please read Reid v. Covert. In fact, read it again and again and again and again.
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October 30, 2009, 10:49 pmtherut says:
But will they shut up Jessie Jackson, Al Sharpton and shut black churches that preach Liberation theology?????? Will this touch that crazy preacher Obama listented to for decades???? How about the jew hating “Reverand” Farrakahn (sp)????
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October 30, 2009, 11:03 pmtvk says:
Of course, you left out what is really the most likely option:
(h) When we said to combat “incitement to hostility,” we really meant incitement to unjustified hostility. After all, we would certainly condone and encourage hostility to a religion that required human sacrifice. So lets not be stick-in-the-mud literalists here.
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October 30, 2009, 11:24 pmMark Field says:
I think his is a plausible interpretation, and when it comes to free speech I’d rather err by overstating the narrowness of any exception.
Yeah, imagine what the Framers would say about that:
“An attention to the judgment of other nations is important to every government for two reasons: the one is, that, independently of the merits of any particular plan or measure, it is desirable, on various accounts, that it should appear to other nations as the offspring of a wise and honorable policy; the second is, that in doubtful cases, particularly where the national councils may be warped by some strong passion or momentary interest, the presumed or known opinion of the impartial world may be the best guide that can be followed. What has not America lost by her want of character with foreign nations; and how many errors and follies would she not have avoided, if the justice and propriety of her measures had, in every instance, been previously tried by the light in which they would probably appear to the unbiased part of mankind?”
That characterization surprised me as well. I think of Taylor as a moderate conservative, which isn’t quite the same as “quite moderate”.
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October 30, 2009, 11:43 pmadam says:
The people (and states where they reside) have ceded soverignty to a federal government as part of a grand bargain whereby certain rights are to be protected. To the extent that the federal government fails to protect or, worse, actively seeks to undermine these rights, on what basis does the United States continue to exist as a single political entity? The transnationalist road leads, inevitably, to either authoritarian rule or political dissolution.
I live in Nevada and, though patriotism runs high here, it flows from an allegiance to shared values rather than fidelity to the federal government per se. The Obamis tread on dangerous ground, indeed.
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October 30, 2009, 11:44 pmLeo Eko says:
This UN HR Council Resolution is the thin edge of the wedge that will ultimately shatter American exceptionalism in matters of free speech. America’s unprecedented support for such a resolution is not unexpected. Obama laid the groundwork for this tectonic policy shift in his speech to the Muslim World on June 4, 2009. Speaking in Cairo, Egypt, Obama said in part:
“And I consider it part of my responsibility as President of the United States to fight against negative stereotypes of Islam wherever they appear.”
Support for this UN resolution should be seen in that context. Our Constitutional professor president told the world that he would use the power of his office to protect a particular philosophical system from being stereotyped. This resolution is a step in that direction.
American Constitutional law is definitely not what it used to be!
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October 31, 2009, 12:14 amIndependent says:
For: loki13 Thank you for standing up for the 1st Amendment & now allowing our country to lower America to 3rd world country mentality. I’ve lived in these countries, during my 30 year career overseas & it’s awful to know you cannot speak your thoughts without being arrested & tortured by a govt. of tyranny.
I do encourage everyone to read that new, political thriller just out about a small town that stands up to federal tyranny & ends up starting the 2nd American Revolution. It’s not just the democrats that no longer represent the voters....but both parties just representing big govt. It’s a great read if you still want to live in a free country. Just read it & see what’s in store for us nxt. Maybe, the rest of us should stand up to politicians.
http://www.booksbyoliver.com
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October 31, 2009, 12:23 amGuy says:
At the risk of making look like I’m trying to minimize the importance of a broadly understood free speech (If anything, I think the current jurisprudence interprets it too narrowly), I have to say your tone confuses me. You make it sound like the state of the First Amendment has always been at its strongest level, and is now beginning to be chipped away at. In fact, the idea that the freedom of speech entails anything more than a prohibition of prior restraint is actually a 20th century phenomenon, and the history of First Amendment jurisprudence since then has been an inexorable progress toward increasingly broad interpretations.
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October 31, 2009, 3:41 amGuy says:
Oh, and who do we have to thank for our broad freedom of speech? That’s right, that liberal, activist Warren Court. Grrr, they make me so angry.
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October 31, 2009, 3:51 amEugene Volokh Is a Free-Speech Stud/God. | Little Miss Attila says:
[...] you knew that, [...]
Joe says:
You forget that there’s also a movement to adapt and interpret our constitution using foreign law as a guide. .... Again, this is a move to make a hate speech exception to the 1a.
Said “movement” was around since the Founding ... since then international law was some sort of “guide” to the interpretation of various aspects of the Constitution. Even some conservative jurists find this perfectly okay in various respects.
The move to make a hate exception to the 1A in this respect is much less apparent. The idea that hate speech should be banned generally also is not as shocking in the context of large chunks of the world. When we have massacres like in Rwanda, terrorism fueled by hate to the extent of the Middle East and other areas, holocausts like in Germany, etc. we can determine with more assurance that such laws still are not for us.
As in other nations, however, the U.S. goes its own way on various matters of international note. EV notes a past measure (one cited in this one) was ratified by the Senate only with a reservation that it would not “restrict the right of free speech and association protected by the Constitution and laws of the United States.” [dated April 2, 1992]
It would be a fine idea to do the same here.
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October 31, 2009, 8:53 amJoe says:
Happy Halloween!
[Since everyone is so scared of specters!]
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October 31, 2009, 9:02 amMore on Blasphemy Laws & Freedom of Speech | Crossroads Arabia says:
[...] Amendments, believes that Stuart is essentially correct in his reading of recent events. Volokh briefly discusses Stuart’s piece and raises the question of how the US government should reply to a request/demand that intolerant [...]
tamerlane says:
And the Obamessiah spoke unto the people and said, “Blessed are the silent for they shall not be prosecuted.”
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October 31, 2009, 10:09 amMark Field says:
Nevada might leave the Union? Scary threat. And the best way to show your patriotism.
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October 31, 2009, 10:47 amLeo Eko says:
Broad interpretations like exchanging the American “market-place of ideas” model for the European/UN “market-place for ideas” model, where the government, the European Union, the Council of Europe (through the ECHR) and the UN are the arbiters of acceptable and unacceptable speech?
Are you suggesting that the 21st Century speech “phenomenon” will consist of “broadening” the scope of free speech by actually narrowing it?
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October 31, 2009, 10:55 amtroll_dc2 says:
Justice Sotomayor may play a role here that no one could have anticipated when her nomination was debated. What is her track record on free-speech issues? And is she in favor of interpreting the Constitution in light of norms adopted by other countries?
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October 31, 2009, 11:17 ambyomtov says:
Taylor cites video clips from Glenn Beck to prove his points? Yeah. Moderate, respected, impeccable scholarship. Right.
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October 31, 2009, 11:31 amDisintelligentsia says:
The concept that our 1st Amendment rights could be chipped away at because of Islamic values is particularly galling because they have their own supreme law which they will not compromise — it’s called the Quran & Hadith/Sunna of the prophet as codified in Sharia.
Almost every Islamic state has a provision in their constitution that the constitution shall not be interpreted so as to abrogate or is inconsistent with Islamic law or the Quran. Islamic law has been interpreted to encourage vilification of other religions and debasement of their members (particularly in the payment of jizyah). Therefore, if the treaty says one thing, no judge or jury in their system would ever convict because the “offender” could just appeal to their immutable higher law that encourages debasement of other religions.
So again, for the Islamic world it’s this law for thee but not for me.
Further, most Islamic states have anti-blasphemy laws on their books already. However they only apply to blasphemy against their religion or prophet and not others. It’s conceivable that someone in an Islamic country might be prosecuted for directly vilifying Jesus or Moses but only because Muslims believe that both are prophets of Islam. However, it’s OK to desecrate Judaism and Christianity because they are perversions of Islam and not the true faith. Debasement of a deity or prophet of any other system of belief would be OK under their anti-blaspheme laws because how can one blaspheme a god that does not exist? For them it would be as ridiculous as prosecuting someone for blaspheming the tooth fairy.
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October 31, 2009, 11:34 amJoe says:
Sotomayor? Like when she dissented because she thought a New York City Police Department employee’s hate speech should not have led him to lose a position? Oh, and the specter of international law was raised during her nomination. Her replies were bland and totally uncontroversial except to those suspicious of international law in all its forms ... that is, some members of this blog.
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October 31, 2009, 12:10 pmInstapundit » Blog Archive » SO WILL THE UNITED STATES’ AGREEMENT ON “HATE SPEECH” be used to end-run the First Amendment? Onl… says:
[...] WILL THE UNITED STATES’ AGREEMENT ON “HATE SPEECH” be used to end-run the First [...]
trotsky says:
If this were a binding treaty of some sort, obviously (well, OK, maybe not obviously) it would be very troubling.
But Taylor’s really stretching:
The law moves in small steps, but this is a microscopic one. And while some of the academic liberals among Obama’s people might actually think it’s a good idea to impose a speech code on all of us, I respect the nation as a whole’s righteous instinct to give those people a wedgie.
.
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October 31, 2009, 1:07 pmCJColucci says:
Step One: Gin up imaginary peril
Step Two: Get the rubes into a lather about imaginary peril
Step Three: Nothing happens
Step Four: Take credit for foiling imaginary peril
Step Five: Rinse and repeat
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October 31, 2009, 1:46 pmpst314 says:
Loki13 “Perhaps there could be a provision dealing with “histrionic speech” instead?”
That would be clever, except that I’ve known a lot of progressives who want to use “hate speech” laws to outlaw dissent.
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October 31, 2009, 2:04 pmadam says:
Do you actually believe the “red” states are just going to go along quietly with a slow dismantling of the Bill of Rights? Is there no point of resistance to growing federal power and the erosion of individual liberty? Is “don’t tread on me” a colorful but ultimately meaningless license plate motto?
The first 75 years of American history is, indeed, the story of a union on the brink of collapse. Texas Gov. Perry launched a successionist trial balloon. Wasn’t popular at the time, but no one called him crazy. Most people don’t hope for dissolution, but at some point they will resist.
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October 31, 2009, 2:16 pmSG says:
It’s contrary to the typical meaning, but I wonder if an the Mo-toons could be considered “incitement to discrimination, hostility, or violence”. That is, they don’t incite people to violent against Muslims, but they have incited Muslims to violence.
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October 31, 2009, 2:20 pmFour Amusing Links » The Anchoress | A First Things Blog says:
[...] get away with as much as we let them Comments [...]
How will Obama implement his resolution? « Internet Scofflaw says:
[...] rights” resolution that exempts criticism of religion from free speech protection, Eugene Volokh wonders what the Obama administration will say when foreign officials start citing the resolution [...]
yankee says:
Depends on which parts, no? The Warren Court’s decisions that Amendments IV through VIII actually meant something were extremely unpopular with conservatives. See the howls of “judicial activism” that accompanied in cases such as Mapp v. Ohio, Gideon v. Wainwright, and Miranda v. Arizona. Same goes for the decisions protecting unenumerated rights (which are expressly provided for in the Bill of Rights), or the cases holding that freedom of speech includes unpatriotic speech and sexual speech.
Granted, the RKBA is extremely unpopular with liberals and there are plenty of liberals who would like to roll back freedom of hate speech, but let’s not pretend that conservatives have been America’s #1 defender of the Bill of Rights. Far from it.
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October 31, 2009, 3:00 pmTGGP says:
I’ve yet to read a liberal say they respect Stuart Taylor. Could be that I don’t read enough liberals.
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October 31, 2009, 3:31 pmGary Rosen says:
The administration’s endorsement of this resolution, especially considering the sorry history of the UNHRC, is a disgrace even if it has no legal consequences. It is far more disturbing to me than the Fox News controversy.
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October 31, 2009, 3:46 pmMike G in Corvallis says:
Joe wrote:
The move to make a hate exception to the 1A in this respect is much less apparent. The idea that hate speech should be banned generally also is not as shocking in the context of large chunks of the world. When we have massacres like in Rwanda, terrorism fueled by hate to the extent of the Middle East and other areas, holocausts like in Germany, etc. we can determine with more assurance that such laws still are not for us.
Joe, I think you have it backward. It isn’t a case of, “Well, when we have atrocities in the U.S. we may want to reconsider our preservation of the First Amendment.” It’s much more plausible to me that we haven’t had atrocities in the U.S. because we have and enforce the First Amendment. Or do you think that the atrocities of Darfur, Rwanda, and the Holocaust would be allowed here under the Bill of Rights?
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October 31, 2009, 3:58 pmtroll_dc2 says:
Under the proposed resolution, Geert Wilders committed a crime when he showed up in Philadelphia this past week–he denounced Islam and incited hostility and discrimination.
The evidence? Among other things, he said: “Where Islam sets roots, freedom dies,” and “our Western culture is far better than the Islamic culture and we should defend it.” Calling the U.S.-Egypt resolution a “disgrace,” he stated: “If the spread of Islam continues unabated in the Western world, “you might at the end of the day lose your Constitution. Wake up, defend your freedom.” He made other statements as well.
But not everyone to whom he spoke was deceived.
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October 31, 2009, 4:01 pmtom swift says:
Twaddle. “Free speech” protects controversial speech, or it’s useless — bland, trite, conventional and entirely unobjectionable speech hardly needs protecting.
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October 31, 2009, 4:24 pmJoe says:
It’s much more plausible to me that we haven’t had atrocities in the U.S. because we have and enforce the First Amendment.
We have had racial violence in this country — people also had the right to protest it. In various cases, such as in the age of lynching, they did not do that enough. Unlike in the days of slavery, there were no laws that said they could not oppose such behavior.
We are also not simply talking free expression here and surely not the “Bill of Rights” in general. The resolution in fact actually promotes free expression in various respects.
We are talking about a certain type of hate speech. I doubt it is that we allow some of what is banned in various countries that prevented us from some of the violence in question. We are not talking dissent here of most kinds either. Or, protecting equal rights and people from violence. All more much more essential than the hate speech in question here.
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October 31, 2009, 4:32 pmShelbyC says:
Knock off the OT posts, CJ. This isn’t a post about the stimulus.
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October 31, 2009, 4:45 pmtroll_dc2 says:
Some societies can handle so-called hate speech better than others. The U.S. lacks the deep ethnic/religious/tribal hatreds of places like Bosnia, Ingushita, and Rwanda, and it has both a national ideology that elevates the idea of unity and a Constitution that is taken seriously. Other countries are little more than collections of warring groups, and there is not much of a concept of tolerance. Attack-arousing speech may have more impact there.
This is not to say that I like restrictiosn on speech. But other countries do not have our standards of civic life.
Assume that everything I have said here is correct. Have I not just set out precisely why international norms of free/forbidden speech should not apply in our country and why those who would read the First Amendment in light of those assumed norms are wrong?
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October 31, 2009, 4:48 pmMark Field says:
I’d be happy to have the redstaters support the BoR — it’d be a welcome change from the last 8 years. And I don’t think they’ll be going anywhere. They can’t afford to lose the welfare payments they get from the blue states.
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October 31, 2009, 9:24 pmDoc Merlin says:
(d) is probably most true, but its definitely not what the president will say.
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November 1, 2009, 3:24 amDoc Merlin says:
In my mind ‘hate speech’ is protected speech, but almost all of my leftist friends in academia say it is not.
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November 1, 2009, 3:39 am“Troubling signals on free speech” says:
[...] In “a little-publicized October 2 resolution … [the U.S.] State Department joined Islamic nations in adopting language all-too-friendly to censoring speech that some religions and races find offensive, notes Stuart Taylor, Jr.’s new column for National Journal. Legal academics, including some who have gone on to join the Obama Administration, have sketched out doctrines indicating “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… 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.” More: Reason, Jonathan Turley/USA Today. And (h/t comments): A Monday statement by Secretary of State Clinton is being widely greeted as reaffirming a free-speech position, but Taylor is not convinced that it undoes the damage. Nor, it seems, is Eugene Volokh. [...]
PersonFromPorlock says:
How about a basic question: if it’s fundamental to American culture that free speech is a natural right, what’s our government doing discussing, let alone endorsing, its abridgment anywhere?
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November 1, 2009, 7:28 amadam says:
Pure misdirection. Do you or do you not support American support for the resolution? Do you support enforcement of the resolution here in the United States, no matter the consequences for free political speech?
As to all those liberal academics who embrace campus speech codes, they do so secure in the knowledge that university administrators are now and will always be ideological allies. Are they as confident that limits on speech, applied beyond the university gates, will always serve liberal interests? Do they not fear that, some day, ideological opponents will come to control the machinery of the federal governement, and that liberal speech will be targeted? They must ask themselves the question, what would Nixon have done given the power to limit political speech?
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November 1, 2009, 9:13 amOren says:
The red states are not going to lecture us on the bill of rights, at least not credibly. Spend 50 years working to expand individual liberty and maybe we’ll talk.
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November 1, 2009, 9:19 amMark Field says:
I already said above that I don’t. I think the Administration needs to withdraw it.
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November 1, 2009, 10:03 amtroll_dc2 says:
What role has Harold Koh played with regard to the resolution?
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November 1, 2009, 11:05 amTweets that mention The Volokh Conspiracy » Blog Archive » Stuart Taylor on Obama Administration’s Endorsement of Restricting “Advocacy of Religious Hatred That Constitutes Incitement to Hostility” -- Topsy.com says:
[...] This post was mentioned on Twitter by Douglas Bass and andrew, Gary. Gary said: Obama supporting UN restrictions on free speech? http://tinyurl.com/y9c9a9z [...]
geokstr says:
I don’t think either of you are understanding exactly what “hate speech” means to the left. It is defined as anything that they don’t like, or that disagrees with their worldview. That’s how Garafalo and Carter get to “straight up racism” as the motivation behind the Tea Parties.
Sure, for now, they’ll be content to define “hate speech” as saying that Islam is not a religion of peace, or that “Van Jones is a commie”, but watch for the rachet to slowly spread the goalposts over the next 2–3 years, until it’s wider than the field.
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November 1, 2009, 12:44 pmtroll_dc2 says:
This gets at an ancillary problem with the concept of hate speech–hate of what? Not all hate is equal; not all targets are equally eligible.
Hate speech seems to be a concept of the social left. It has two facets. One is that it provides a way to say that something is antisocial, wrong, bad, and/or immoral without having to explain why this is so. The second is that it gives you moral standing (at least in your own eyes) because you are defining yourself in terms of what you are against.
The concept is woolly enough that it can be applied to whatever anyone wants to apply it to, which means that it will spread and engulf concepts and statements that were considered innocent only months earlier. Who would be doing the expanding? Can anyone push out the boundary between hate and everything else? I do not know.
The idea that the Constitution could be interpreted to permit this very political concept to limit free speech is sickening, but I quote again what I quoted at 4.01 p.m. yesterday:
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November 1, 2009, 1:14 pmThe Volokh Conspiracy » Blog Archive » The UN Human Rights Council Resolution and the Flaws of International Human Rights Law says:
[...] reasons indicated by co-blogger Eugene Volokh (here , here, and here), Jonathan Turley, and others, the resolution does indeed justify gross [...]
John David Galt says:
It seems to me that at some point, the Administration (or a future one) *must* become sufficiently rational and non-hypocritical to answer this question with:
(h) Beliefs and practices which foster or aid violations of human rights (such as the killing of “apostates” or the denial to women of equal protection of the law) can never enjoy the protection of the resolution or of the right to freedom of religion, even if those beliefs and practices are part of a religion. We expect the UN to interpret its resolution in accordance with this statement. If it will not, we will use our veto power to prevent its enforcement in such cases.
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November 1, 2009, 6:54 pmCJColucci says:
CJColucci: Step One: Gin up imaginary peril
Step Two: Get the rubes into a lather about imaginary peril
Step Three: Nothing happens
Step Four: Take credit for foiling imaginary peril
Step Five: Rinse and repeat
Knock off the OT posts, CJ. This isn’t a post about the stimulus.
If your point is that the same post could apply to a vast number of topics people want to talk about here, I don’t disagree with you.
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November 1, 2009, 7:01 pmraoul says:
What I think Taylor is based on criticism of Sotomayor. Actually, even before that he showed a talent for being a hack. But when he trashed Sotomayor because she brought much needed change to his alma mater Princenton, well he came across as a racist liar. Now I am sure he is no racist but nevertheless he did show the true colors of his intellect. Anybody who listens to him needs to be very alert not to be corroded and reputation equally affected.
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November 1, 2009, 10:03 pmdavod says:
This has been pushed by the Organization for Islamic Conference (OIC) for years.
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November 1, 2009, 11:48 pmloki13 says:
Wowzers, I haven’t checked this thread recently, but since I was called out by name twice (three times and I’d be Beetlejuice!) I guess I have to write something. Let’s see.... first, I find it amusing that I’m called to the carped by Independent, Ryan Waxx et al for writing:
In all seriousness, I agree with Mark Field– while I accept (if not necessarily respect) that other countries will have different legal regimes than ours when it comes to speech rights, I do not believe we should ever encourage anything that is inconsistent with the First Amendment.
It is not only the lodestar of our constitutional jurisprudence, it is the guiding light of our democratic values. Other countries do not have to share it, but we set a poor example when we do not endorse it.
Yes, you’ve gotta tar and feather that librul for his hatred of free speech. He’s just ginnin’ to use that hate speech legislation to trample on my rights. Look at him spittin’ on the First Amendment, throwin’ his lot in with the UN and them furriners... oh, wait... hmmm... ya mean he said we shouldn’t support that abomination? Well, he’s still a punk.
Oh, wait. I see the problem. As Ryan Waxx so pithily put it:
“That’s an idea that has serious traction on the far left, so it would be appreciated if you not treat people who express concerns over the idea as histrionic.”
And what did I think was histrionic (admittedly, I was making with the funny, but still):
Dems only want Freedom of Speach for their speach. All others can just shut up or be shut up!
Yeah... geez.... can’t imagine why I thought that was over the top. Between the colloquial “Dems” (that’s friendly, cuz it’s a nickname!), the cute “Hello Kitty”-like misspelling of speech, or the bewildering paranoid delusions, histrionic is perhaps not the phrase I would use. Perhaps $4 short of a latte, in honor of my arugula-eating preferences?
We can’t stop here– we’re in bat country.
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November 2, 2009, 2:49 amSolomon2 says:
Y’all have missed two important things:
1) While outlawing free speech among Americans is unlikely, the position of the Obama Administration is quite sufficient to bind the mouths of U.S. officials and government employees. Already the use of the term “War on Terror” is banned. With this policy, no official document will be able to cite “religious hatred” as the reason why terrorists seek to attack America, or why we should try to defend ourselves from militant Islam.
2) The Obama Administration’s position allows it to advocate, or participate in other countries connivance at, restrictions upon free speech abroad — including allowing discretionary foreign aid that may be directed to such ends.
I should point out that the U.N. effort is part of King Abdullah’s Interfaith Dialogue as laid out at the Islamic Preparatory Conference on Religious Dialogue last year: link. The Dialogue project seems to be shaping up as an effort to replace Western-style rights with Islamic-style “tolerance” — the sort of tolerance that can revoked in an instant, with only the victim to blame.
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November 2, 2009, 2:43 pmFinntann says:
The language of the treaty is irrelevant, as already decided by the US Supreme Court (Reid v. Covert 1957), the issue has already been ruled upon. In regards to Article VI of the Constitution: “There is nothing in this language which intimates that treaties and the laws enacted pursuant to them do not have to comply with the provisions of the Constitution.” As well as “There is nothing new or unique about what we say here. This Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty”.
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December 9, 2009, 8:41 pm