In response to a film that mocked Mohammed, journalists on MSNBC, a professor, and the Egyptian government called for punishment of the film’s producers. Prominent left-leaning law professors have similarly advocated that such speech be restricted, citing customary international law. Their position, if accepted, would seriously menace free speech in America, and harm the publishing and film industries. (At the UN, the Obama administration has also lent qualified support to restrictions on “hate speech” and speech that incites hostility to Islam and other religions.)
The Egyptian government said, “We ask the American government to take a firm position toward this film’s producers within the framework of international charters that criminalise acts that stir strife on the basis of race, colour or religion.” In a commentary yesterday, Prof. Peter Spiro, one of the leading international law scholars in the country, cited international norms as a justification for banning such speech: “The deplorable killing of Chris Stevens in Libya suggests a foreign relations law rationale for banning hate speech. Remember, the Benghazi protests were prompted by this film depicting the prophet Mohammed in not very flattering terms. The equation from the protesters at the US consulate in Benghazi: this film was produced by an American; we will hold America responsible for it.” Earlier, he wrote, “an international norm against hate speech would supply a basis for prohibiting it, the First Amendment notwithstanding.” State Department legal advisor Harold Koh, the former dean of Yale Law School, has also suggested that such international norms provide a justification for restricting such speech.
Similarly, journalists and a professor argued that the film’s producer should be prosecuted. The professor’s USA Today op-ed is entitled “Why Sam Bacile Deserves Arrest.” Law professor Eugene Volokh quotes them as follows:
[Professor Anthea Butler of the University of Pennsylvania]: “Good Morning. How soon is [producer] Sam Bacile going to be in jail folks? I need him to go now.When Americans die because you are stupid…” “And yes, I know we have First Amendment rights,but if you don’t understand the Religion you hate, STFU about it. . . . people do jail for speech. First Amendment doesn’t cover EVERYTHING a PERSON says.” “[T]he murder of the Ambassador and the employees is wrong, wrong. But Bacile will have to face his actions . . .”
[MSNBC's Mike Barnicle] “Given this supposed minister’s role in last year’s riots in Afghanistan, where people died, and given his apparent or his alleged role in this film, where, not yet nailed down, but at least one American, perhaps the American ambassador is dead, it might be time for the Department of Justice to start viewing his role as an accessory before or after the fact.”
[MSNBC's Donny Deutsch]: “I was thinking the same thing, yeah.”
In reality, the minister that the MSNBC commentators blamed for the film depicting Mohammed does not appear to have been involved in its production, and the attack on our embassy in Libya that left our ambassador and three others dead appears to have been preplanned, and not inspired by recent outrage over the film after it was publicized in the Islamic world.
Nevertheless, prior to the attacks, the U.S. Embassy in Egypt not only condemned speech offensive to Muslims such as the film, but also apologized for the “abuse of free speech” in the United States. “Abuse of free speech” is a phrase used by lawyers and diplomats to mean speech that can be banned as unprotected. For example, many state constitutions contain an “abuse” exception in their free-speech clause. For example, California’s Constitution says, “Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right.” These constitutions were written mostly at an earlier time when free speech was construed narrowly to ban prior restraints on speech (one example of a prior restraint is where a government censor reviews speech before it can be published), but not to prevent criminal punishment after-the-fact for speech deemed “bad” by the legislature. Similarly, in other countries, where freedom of speech is typically narrower than in the United States, legislatures are often authorized to pass legislation prohibiting and punishing “abusive” speech.
(There would be nothing remarkable about a U.S. embassy in an overwhelmingly Muslim country expressing its own disapproval of a film that offends Muslims to try to assuage public opinion; under the Bush administration, the State Department criticized the Danish cartoons of Mohammed. But unlike the Bush State Department, which went on to note that the cartoons were protected by freedom of speech, the embassy in Egypt called the film an “abuse of free speech.” As The Wall Street Journal‘s James Taranto notes, under the Bush Administration, “the United States defended the right of the Danish and French newspapers to publish the cartoons.” The Obama Administration has done no such thing regarding the film depicting Mohammed, although it distanced itself from the embassy’s statements.)
The Obama administration was earlier criticized by legal scholars for effectively endorsing anti-blasphemy legislation. UCLA law professor Eugene Volokh and George Mason University law professor Ilya Somin lamented the Administration’s support for proposals at the United Nations to restrict “hate speech” against Islam and other religions. In USA Today, liberal law professor Jonathan Turley criticized the Obama administration for endorsing a “blasphemy” exception to free speech: “Around the world, free speech is being sacrificed on the altar of religion. Whether defined as hate speech, discrimination or simple blasphemy, governments are declaring unlimited free speech as the enemy of freedom of religion. This growing movement has reached the United Nations, where religiously conservative countries received a boost in their campaign to pass an international blasphemy law. It came from the most unlikely of places: the United States.”
Why should we care what the Obama administration says to curry favor at the UN? After all, the First Amendment trumps customary international law, right? Well, not according to some respected left-leaning legal scholars, such as Peter Spiro. International law can undermine civil liberties either directly, by expanding the government’s enumerated powers, or indirectly, by giving the federal government a “compelling interest” for imposing an otherwise forbidden regulation.
Treaties can give the federal government the ability to impose legislation that would otherwise be beyond its enumerated powers. Congress can rely on its treaty powers to pass legislation regulating private conduct that would be beyond its power to regulate under the Interstate Commerce Clause. For example, the Third Circuit Court of Appeals recently so ruled in United States v. Bond (2012), where it upheld a woman’s conviction for an intrastate, non-commercial crime — attempting to sicken her husband’s paramour by putting chemicals on a doorknob and car door handles — because the federal law under which she was prosecuted was passed to implement an international chemical-weapons treaty (the implementing federal anti-poisoning law is so broad that you could violate it by feeding chocolate or onions to the neighbor’s dog).
International law (including unratified treaties) can also undermine civil-liberties by arguably creating a “compelling state interest” in regulating speech that conflicts with international norms. The First Amendment’s text does not contain any written exception for speech that the government has a “compelling interest” in banning, but the Supreme Court has made up such a “compelling interest” exception. Legal scholars argue that compliance with either international treaties, or “customary international law” (international norms contained in treaties that the U.S. Senate may not even have ratified), is such a “compelling interest,” and that hate speech or speech that defames or incites hostility to religions such as Islam must be restricted pursuant to international law, since treaties have been interpreted by committees of legal scholars as requiring countries to restrict such speech. Left-wing legal scholars take vague international treaties and interpret them as mandating their ideological wishlists, like restricting criticism of Islam and minority religions as “hate speech,” and mandating quota-based affirmative action. The CEDAW equal-rights treaty has been construed by an international committee as requiring “redistribution of wealth,” “affirmative action,” government-sponsored “access to rapid and easy abortion,” and “the application of quotas and numerical goals.”
The federal appeals court in Washington once upheld a municipal ordinance restricting protests around embassies based on a “compelling interest” derived from international law, although a divided Supreme Court partly reversed that ruling in Boos v. Barry on the grounds that one of its restrictions was not proven to be essential to achieving that compelling interest, because Congress, unlike municipal authorities, had not supported the restriction or viewed it as essential. (It upheld other less onerous restrictions without really needing to rely on interests derived from international law.) Three of the Supreme Court justices, however, would have upheld the ordinance in its entirety, including its prohibition “on the display of any sign within 500 feet of a foreign embassy if that sign tends to bring that foreign government into ‘public odium’ or ‘public disrepute,’” based on the reasoning of the lower court, which had relied on international law to justify the restriction. (On the other hand, the Supreme Court’s earlier decision in Reid v. Covert (1957) said that “no agreement with a foreign nation can confer power on the [federal government] which is free from the restraints of the Constitution” (i.e., the Bill of Rights). Still earlier cases arguably rely on international law to reject rights claims. The law is murky on this point.)
Some courts have held that corporations can be sued for violations of “customary international law” under the Alien Tort Claims Act, or Alien Torts Statute. So broadening the reach of customary international law has obvious implications for American business as well.
If “customary international law” prohibits defamation or incitement of hostility towards Islam, the argument might well be made that this creates a compelling interest in restricting otherwise protected speech that runs afoul of broad laws aimed at discrimination in public accommodations, including movie theaters, as I explain in more detail at this link.