Nathaniel Sugarman, a Law Clerk for the Legal Project, has been following the discussions between U.S. political leaders and the Organization of Islamic Cooperation about the imposing of international speech codes regulating religious related speech. Here is his latest update:
This past week, the United States met with the Organization of Islamic Cooperation (OIC) in London to discuss whether speaking about religion can violate international law. The meeting represents round three of the “Istanbul Process,” an effort Secretary of State Hillary Clinton launched in July 2011 in the eponymous Turkish city. The initiative’s goal is to implement non-binding UN Human Rights Council Resolution 16/18, which itself calls for the criminalization of various forms of speech concerning religion. The OIC, an association of 56 Islamic member states and the Palestinian Authority, represents the largest voting bloc in the United Nations.
The renewed Istanbul Process talks come just a month after a UN official urged the United States to combat racism by adopting a “solid legal framework” for regulating internet speech. In a November 5, 2012 address to the General Assembly, UN Special Rapporteur Mutama Ruteere recommended that countries take steps to combat “racial hatred,” which include adopting “legislative measures” to address the problem. These measures, according the rapporteur, should be in compliance with “international human rights standards.” Special Rapporteurs are UN-appointed officials assigned to research a particular issue and report back to the organization with their findings. In his report, Mr. Ruteere specifically identified the United States as a country that should consider new legislation targeting internet hate speech.
Here is how Sugarman describes the problems associated with the specific resolution in question:
Resolution 16/18 calls for criminalization of “incitement to imminent violence based on religion or belief,” and it “condemns… any advocacy of religious hatred against individuals that constitutes incitement to discrimination, hostility or violence.” At first glance, this language does not seem restrictive; even in the U.S., incitement is not a protected form of speech. The issue is the respective ways in which the U.S. and the OIC define “incitement.” U.S. Courts use a content-based test to determine whether speech is incitement (See: Brandenburg v. Ohio). Brandenburg, which is still the law, ruled that in order for speech to be unprotected as incitement, the speech must (1) intend to produce imminent lawless action, and must be (2) likely to produce such action. In other words, there is both a subjective and objective prong, both concerning the speech itself. By contrast, the OIC endorses a “test of consequences,” which punishes speech based not on its content, but based on the result. This is a completely subjective test, and fails to consider the words uttered by the speaker, focusing only on the reaction of others. How would this play out in practice? Violence claimed to be in response to cartoons of Muhammad, could, under the OIC’s definition, retroactively define the cartoons as incitement. Surely, this framework is in direct conflict with U.S. law.
Perhaps it is time that we reconsidered out involvement in the UN.