To ban or not to ban blasphemous videos.

Author:Aswad, Evelyn M.
 
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  1. INTRODUCTION II. TEXTUAL ANALYSIS OF ICCPR ARTICLES 19 AND 20 A. The "Advocacy" Component of Article 20 B. The "Incitement" Test of Article 20 C. The "Hostility" Prong of Article 20 III. NEGOTIATING HISTORY FOR ICCPR ARTICLE 20(2) IV. CERTAIN STATE PRACTICE REGARDING ARTICLE 20(2) & THE "DEFAMATION OF RELIGIONS" DEBATE AT THE UN V. VIEWS OF THE UN's INDEPENDENT HUMAN RIGHTS EXPERTS. VI. CONCLUSION I. INTRODUCTION

    One of the most debated questions at the UN General Assembly in September 2012 was whether the United States was exempting itself from international law when it did not ban the Innocence of Muslims video, which portrayed the most venerable person in Islam in a highly insulting manner. At the UN General Assembly in September 2012, President Barack Obama condemned the anti-Islam video in no uncertain terms, rejected its contents, (1) and justified not banning the film based on First Amendment protections for free speech while noting the futility of trying to control information on the Internet. (2)

    But leaders of other nations spoke forcefully at the UN in favor of a very different vision of freedom of expression. Some took the position that freedom of expression does not cover speech that disrespects religious beliefs or insults religious sensibilities. (3) Others argued that such forms of expression were forms of "incitement" and therefore needed to be banned. (4) Some leaders at the UN suggested that international law may have been violated because the offensive speech had not been banned. (5)

    Even a few law professors called on the United States to acknowledge that not banning the anti-Islam video was inconsistent with international law and practice. One professor argued that the United States needed to re-think its First Amendment, given his belief that the rest of the world, including Western secular countries, would not protect the offensive video. (6) Though not arguing for a change to U.S. law, another called for the United States to at least grapple more transparently with provisions of international human fights instruments, such as Article 20 of the International Covenant on Civil and Political Rights (ICCPR), which he viewed as mandating bans on speech such as the anti-Islam video. (7)

    This Article seeks to unpack this international law question by examining what the ICCPR, the key international human fights treaty on freedom of expression, provides on whether blasphemous or otherwise offensive speech must be banned by States Parties. The Article begins by analyzing the relevant provisions of the ICCPR, which are Articles 19 and 20. Article 19 provides the international protection for freedom of expression. Article 20, which is frequently invoked in UN debates about banning blasphemy, prohibits hateful advocacy that rises to the level of incitement to violence or other harm. The Article then examines the negotiating history of Article 20 for any lessons that can be drawn with regard to speech that offends religious sensibilities. The Article then reviews relevant state practice under Article 20. The views of key independent experts in the UN's human fights machinery are considered as well. In light of this examination, the Article concludes that not banning the anti-Islam video was in line with the existing international human rights law regime.

  2. TEXTUAL ANALYSIS OF ICCPR ARTICLES 19 AND 20

    Of the human fights treaties addressing bans on speech, (8) the ICCPR is the most relevant to the topic of speech that offends religious beliefs. The ICCPR entered into force in 1976 and has 167 States Parties today, including the United States, which became a State Party in 1992. (9) Article 20(2) is the most frequently cited provision for justifying bans on speech that offends religious beliefs. (10) It appears immediately after the provision protecting freedom of expression in Article 19, which provides a framework for interpretation and contains provisions that apply to Article 20.

    Article 19 states:

    1. Everyone shall have the right to hold opinions without interference.

    2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

    3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities.

      It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

      (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordrepublic), or of public health or morals. (11)

      Article 19 sets forth broad protections for the right to freedom of expression. It permits--but does not require--restrictions on expression in certain limited situations. In particular, a State Party desiring to limit expression under Article 19 must meet several criteria. First, the restrictions must be "provided by law." This phrase is widely understood to mean, at a minimum, that the law must be specific and clear to give sufficient notice to the public of what is prohibited, and the law must be available to the public. (12) Second, the restriction must be "necessary," which is generally understood, inter alia, as the least restrictive means to achieve the legitimate government purpose, (13) Third, the restriction must be for one of the enumerated legitimate governmental purposes: respect for the fights or reputations of others, protection of national security or public order, or protection of public health or morals. (14)

      Article 20 reads as follows:

    4. Any propaganda for war shall be prohibited by law.

    5. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law. (15)

      In reviewing Article 20(2), a number of questions as well as ambiguities in the text readily come to mind. To begin with, the Article is phrased as a mandatory prohibition, but do the Article 19 safeguards (e.g., "by law" and "necessary") apply to restrictions imposed under Article 20? While some could argue that Article 20 is a separate article and thus not subject to such safeguards, most would agree it would not make sense for these fundamental safeguards to apply to all restrictions on speech except those imposed under Article 20. Indeed, the Human Rights Committee has recently recommended to states that they interpret the safeguards in Article 19 as applying to restrictions imposed under Article 20. (16)

      1. The "Advocacy" Component of Article 20

        On its face, Article 20 does not mandate or authorize the banning of speech solely because it triggers or provokes undesirable outcomes like violence. Rather, it encompasses a much narrower class of speech, specifically only speech that constitutes "advocacy" of racial, religious, or national hatred. The plain meaning of "advocacy" is the "act of pleading for, supporting, or recommending." (17) In other words, the speaker must have the intention of promoting hatred on one of the proscribed grounds with his or her speech. Article 20 thus would not cover situations in which, for example, speech accidentally promotes hatred or presumably a situation in which a reporter is merely covering advocacy of hatred as part of his or her news reporting function. In UN discussions, the "advocacy" prong of Article 20(2) is frequently ignored, with the focus being solely on speech that allegedly "incites," a legally flawed characterization of Article 20(2), given its requirement that advocacy be shown. (18) An example of advocacy of hatred would be a speaker adhering to religion X who calls on an angry mob of coreligionists to physically attack persons of religion Y. It would not constitute "advocacy" for a speaker adhering to religion X to simply criticize, question, mischaracterize or ridicule religion Y without the intent to promote hatred against members of religion Y.

      2. The "Incitement" Test for Article 20

        Article 20(2) is also clear on its face that, even where the intent to promote hatred can be demonstrated, such advocacy of hatred by itself is not sufficient to trigger the obligation to prohibit expression. Rather, such advocacy of hatred must also rise to the level of "incitement" to discrimination, hostility, or violence. This phrasing contains important but vague terms, which raise critical questions of interpretation. For example, what is the test for "incitement"? How proximate must the causal link be between the advocacy and the undesirable results of "discrimination, hostility, and violence"? Is the incitement test one in which the advocacy must hold a risk, a significant risk, or a bad tendency of triggering the three undesirable results? Or advocacy that is more likely than not to trigger the undesirable results? Or advocacy that is likely to trigger the undesirable results in the very near future, i.e., imminently? A plain reading of the text does not provide answers to these questions.

      3. The "Hostility" Prong of Article 20

        In considering the ambiguity of Article 20(2), one also wonders about the inclusion of "hostility" in the list of undesirable results from the hateful advocacy. The ordinary meaning of hostility is "a hostile state, condition, or attitude," (19) and "hostile" means "opposed in feeling, action, or character, antagonistic"...

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