The Legal Project
by Ann Snyder • Dec 10, 2011
Starting on December 12th in Washington, DC, a meeting is being held that jeopardizes freedom of speech as we currently understand it in the United States. The Obama Administration has invited the 57-member Organization of Islamic Cooperation ("OIC," formerly, The Organization of the Islamic Conference) to a meeting of "experts" to discuss the implementation of a UN resolution ostensibly targeting "religious intolerance." Now, even if by combating "religious intolerance" the resolution were just targeting actual violations of freedom of religion (READ: violating rights, not hurting feelings), it still should raise a few eyebrows that the OIC is behind the resolution and was invited as a partner to these meetings. The Jeddah-based OIC includes as its members such "champions" of human rights and religious freedom and tolerance as Saudi Arabia, Egypt, Pakistan, and Iran.
But the catch is that the resolution isn't about protecting freedom of religion. It is about limiting freedom of speech and expression.
For those not familiar with OIC's activities at the UN, for over a decade it has sponsored one speech-restrictive resolution after another aimed at criminalizing what it calls "defamation of religions." While the terminology has changed over time (from "defamation of Islam" to "defamation of religions" to "vilification of religions"), the goal has remained the same—to limit expression that the OIC deems critical of or offensive to Islam or Muslims (using a rather thin-shelled standard of what constitutes "offensive," to boot). (Click here for more background). Next week's meeting is about "implementing" that latest iteration of these resolutions, Resolution 16/18, which was introduced in and adopted by the Human Rights Council (HRC) at the UN last March.
Resolution 16/18 differs from previous resolutions in a number of ways. Most notably, the term "defamation of religions" is absent. When the OIC decided not to introduce a "defamation of religions" provision during HRC's 16th session, the move was seen by many as a significant victory—both as a defeat of the concept and the OIC in its campaign.
But, as King Pyrrhus said, one more such victory, and we might soon be undone.
Though the OIC ostensibly dropped "defamation of religions," some have warned that the OIC could reintroduce the concept at a later date. Speech-restrictive resolutions could be introduced in other UN bodies, as well. Indeed, no sooner had the resolution been adopted than it was reported that diplomats from Muslim countries were threatening to resurrect the concept. But, to understand the significance of the events at the HRC in March, as important as what the OIC might do in the future is what it believes it has achieved in the current resolution, which was adopted with the support of the US.
In August 2011, the International Islamic News Agency (IINA), a news organ of the OIC, reported that Washington would host a meeting "to discuss" with the OIC "how to implement resolution no. 16/18 on combating defamation of religions…" (emphasis added) and that the aim of this and further meetings was "developing a legal basis" for domestic and international laws "preventing inciting hatred resulting from the continued defamation of religions." (emphasis added). To be clear, the organization the Obama Administration invited to Washington still seems to think this resolution is about effectuating the anti-free speech concept, "defamation of religions." That is a major problem. Worse yet, by playing the name-game at the UN's HRC, the OIC has won several major victories for itself: praise by Secretary of State Hillary Clinton; an excellent piece of propaganda for its constituency, regarding the "West's" and specifically the US's apparent buy-in; a seat at the table in DC; and a foot-in-the door toward implementing speech restrictions via "hate speech" provisions. Cleverly played, OIC!
Though the current resolution only explicitly calls for the criminalization of "incitement to imminent violence based on religion or belief," it "condemns…any advocacy of religious hatred against individuals that constitutes incitement to discrimination, hostility or violence." This latter part, with the exception of "against individuals," tracks ICCPR Article 20 and is similar in wording to various "hate speech" provisions adopted throughout Europe. Article 20 raised sufficient speech-related concerns that the US only signed onto the ICCPR with an explicit reservations clause to that article! Resolution 16/18 also "urges States to take effective measures as set forth in the present resolution, consistent with their obligations under international human rights law, to address and combat such incidents." (emphasis added) In short, it is a call to action for states to take steps to curtail certain kinds of expressive acts. What steps, if any, does the Obama Administration think the US should to take in response to the resolution's call to limit expression? That remains to be seen.
The cosmetic change of dropping (for now) the language of "defamation of religions" has shifted the focus of the current resolution to "hate speech," though conceptually connecting the two ideas is not new. Some even see the language of Resolution 16/18 as an attempt to broaden the scope of existing "hate speech" provisions, and broadening is the last thing the already too expansive, speech-chilling "hate speech" provisions need. While the shift in language does not appear to have shifted the OIC's goal of restricting expression, the move was sufficient to sway Western allies (many of whom already have "hate speech" laws on the books) who could otherwise have been counted on to resist the OIC's assault on freedom of expression when promulgated under the bizarre concept "defamation of religions." But how can we expect our less speech-protective allies to resist the latest effort, if the US does not? And worse, how can we expect our allies to resist if it appears the US has bought into the idea that at least some of the OIC's speech-restrictive demands are legitimate?
And bought in, it seems the Obama Administration has.
As mentioned before, during a speech this summer at a meeting with the OIC, Secretary of State Clinton actually applauded the organization and described recent efforts as beginning "to overcome the false divide that pits religious sensitivities against freedom of expression." Note the word choice. She says "religious sensitivities" not "freedom of religion." Freedom of expression and freedom of religion aren't rights pitted against one another. They are complementary and interdependent rights. You need to protect one to fully protect the other. But, freedom of expression and so-called religious "sensitivities" (hurt feelings, offense, and the like), on the other hand, are often at odds unless you limit expression. Historically, it has been the OIC's position that setting limits on speech and expression is necessary and appropriate to protect religious sensitivities. Is that now the Obama Administration's position? In the same speech, Secretary Clinton offered plans to advance the resolution's goals, which include "counter[ing] offensive expression." One approach Clinton says "we" plan to employ is "us[ing] some old-fashioned techniques of peer pressure and shaming, so that people don't feel that they have the support to do what we abhor."
The American people do not need our government deciding for us what is abhorrent or offensive. That and any government involvement in organized efforts to shame offensive expression in order to silence it run afoul of a certain provision in the Bill of Rights. And, it is just that provision, the First Amendment, which will probably protect us for now from some of the more deleterious effects that might otherwise come from partnering with the OIC on matters related to speech.
But the Obama Administration's support for speech-restrictive measures could have an effect on how courts interpret the outer contours of our First Amendment protections. (See Eugene Volokh's discussion of this concern in the context of the Obama Administration's decision to co-sponsor a speech-restrictive resolution with Egypt in 2009 and former LP Director Daniel Huff's remarks in the context of the Administration's announcement of plans to partner with the OIC.) Even so, mere endorsement by the Obama Administration lends credibility to the OIC's position—and none is due.
It would be a terrible mistake for the United States to take any guidance or input from the OIC on setting—legally, culturally, or otherwise—the acceptable boundaries of freedom of expression here. So open and so notorious has been the OIC's campaign to impose limitations on speech in the West, that the upcoming meeting cannot credibly pass muster under the guise of diplomacy. Complicity seems a more appropriate term. If that is not the Obama Administration's position, it should take immediate steps to clarify its policy and to express its commitment to preserving our fundamental and constitutionally protected right to freedom of speech.