Globally Managing American Speech?

I read with great interest Eugene’s post below on the Obama administration, free speech, and human rights. As it happens, I’m trying to finish up a manuscript on the UN and “values” at this very moment, and so alas don’t have time to comment more than a few paragraphs about this. Here are a couple of observations that I don’t propose to defend here; I throw them out unsupported, and I’ll try to go back and add something else later.  Many of them are about the intellectual community of international law, which I take as relevant here in part because Eugene is trying to sort out what various international law experts say is or is not the import of the free speech drafts in the UN Human Rights Council; I think it matters to have a sense, even if it’s just my personal and idiosyncratic one, of the baseline of international law experts.  (I don’t promise that I have re-read this closely despite some aggressive characterizations here; I’m simply out of time.)

This whole process of “engagement” on an issue like free speech by the US at the HRC or anywhere else in the international system is a mistake from the beginning.  Among the many reasons is, first, that a process like that of the HRC is designed to lead to consensus, which in practice will mean some kind of compromise. But the whole point of freedom of speech under the First Amendment is that it is not open to compromise, and certainly not in the sense of elaborating standards from the outside for a sovereign people who govern themselves under a constitution.

Even to “engage” in the process, as a consequence, leads to tears no matter where it goes.  A compromise on the issue will inevitably mean that the first amendment is weakened in its substantive American understanding.  If the US engages in the process, however, but then does not accept the result, then it is understandably accused of negotiating in bad faith.

But that’s the consequence of a policy of “always, or nearly always, engage” with the UN or with international institutions.  There are certain institutions in which the US should always engage; the Security Council is one of them.  There are certain institutions or processes with which it should never engage and actively seek to undermine; Durban I and II come to mind.  The HRC is another institution with which engagement is a mistake, and an obvious one.  The decision to engage or not engage is one that by itself is an exercise in political capital.  I admit to finding unpersuasive the position of some (HRW made these arguments around Durban, but it is a fairly common trope) that

  • (a) the US should always engage with UN institutions because engagement is an important symbolic act that shows US commitment to international institutions and
  • (b) the US should not be concerned about always engaging with institutions or processes at the UN, because these are “merely” symbolic processes and one can always walk out, because as a realist matter no one can “make” the US do anything it doesn’t want.

This is looking to have it both ways.  Which is it to be?  Does symbolic engagement matter or doesn’t it?

The reality is weirdly akin to Thomas a Kempis in The Imitation of Christ – if you stop to wrestle with sin you are already in it.  The processes of engagement create their own meaning, their own dynamic, and once you are embroiled in them, well, getting in was easy and getting out more costly.  If it makes one feel academically better, you can describe the process of engagement with discussions in the HRC (over what, if one were really serious, amount to debating the meaning of the First Amendment with the likes of Egypt or Libya or Saudi Arabia or Cuba, etc.) as “path dependency” rather than, say, rolling around in sin.  The point is that if you are serious about what engagement is supposed to mean if one means what the Human Rights Council is supposed to mean, you are negotiating, however indirectly, the terms of the First Amendment.

I am not happy with that.  But then my view is that the United States is a sovereign democratic political community – in Lincoln’s words, “a political community, without a political superior.”  A second response to this criticism, therefore, seeks to get around the international/domestic law problem by an act of redefinition: ‘but all this international law is part of “our law,” too, so it’s “constitutional.”‘  When those kind sentiments were written in the US constitution (leaving aside self-execution of treaties, etc.) about the law of nations and treaties, however, it did not contemplate the internal reach contemplated by human rights law today; the idea that the law of nations would reach to matters of the First Amendment would have been inconceivable.

Moreover, as this kind of discussion illustrates only too well, in the real world of states and regimes, when the HRC debates free speech, the only real effect it could possibly have is on speech in places like America or Europe.  No one imagines that it would have any impact on the policies of Iran or Saudi Arabia.  The invocation of the formal equality of states and the “neutral” application of international law turns inevitably into a double standard.  States that have no intention of changing their internal practices one whit not just opine, but (given the opportunity in the mistaken spirit of US engagement) are able to put pressure on the US, Europe, and elsewhere, to change their practices, if only by shifting the burden to having to defend them.  It is yet another example of a relentless one way ratchet that, by reason of having undertaken “engagement” to show US support for the principle of the sovereign equality of states, the result is pressure to change on the US and a handful of others alone.

If most of my international law professor confreres were honest, they would admit freely that they are not supporters of the First Amendment as written and currently applied.  Their view of how a democratic society should govern speech is probably closest to Canada, not the United States.  At most, they might think it okay for the US if limited to the US, but not for the rest of the world, but probably not truly even that.  In that, they partly bring a liberal internationalist perspective to the table and partly simply the general distaste in this era of the American left for a provision of the Constitution that has turned out, unexpectedly, to be of service to the American right.   Eric Posner is correct in his view that the interest of what he called “transnationalists” – he had Dean Koh in mind in his post here at VC – is to use international law as a tool of an end-run around domestic US democratic processes.  It’s about US domestic law.  That’s how you can support engagement with a process that, in real terms, could only result in changes to the US way of doing things but not to Iran.  Ultimately your deepest interest in international law is about how they do things in Des Moines, not Damascus.

My estimation of my fellow academic international community is that it does not favor specific rules that treat criticism of religion – read Islam – out of bounds.  But they do in general think that speech needs to be “managed” by human rights standards, which is to say, by international law experts of one kind of another.  Left to themselves, the peoples of the world will use unmanaged speech to slaughter each other, and from there it is unfortunately a slippery, if long, slope to managing speech on a identity group basis.  The model, once again, is Canada and its “gentle” but relentless forms of social control over speech.  I think that most of my colleagues, put to a vote, would think that the HRC draft compromise is substantively about what free speech should mean.  Which is to say, however, that I think my community of international law scholars would like it to be applied in pretty much the ways that Eugene finds most troubling.  Unfortunately, if one thinks this is so, as I do, then people like Eugene who do favor the robust view of speech largely favored by American jurisprudence need to be very careful in accepting what international law scholars might sententiously say does not undermine US protections of speech.  Their idea of that and Eugene’s are not likely, in my experience, to be the same; not in bad faith, let me be careful to say – but not the same, either.

Look, for example, at the discussion of free speech and the emergence of a transnational, global judicial community in A New World Order; Anne-Marie Slaughter carefully does not want to denounce US free speech standards – but she still characterizes them as “outliers.”  In one sense, descriptive and entirely correct – the US is objectively an outlier on speech.  In another sense, however, the effect of using such terms as “outlier” is to suggest that the US ought to think not merely of itself and whether it thinks, on its internal standards and history and beliefs, that it is right, but instead that it occupies an “outlier” position on a set of international community standards.  And the soft implication is that the US should care.  In that way, it is hard to resist the sense that ‘outlier’ has a prescriptive connotation here as well – an invitation to the US, and to US judges as they come to think of themselves as not merely “US” judges, but participants in a “transnational” community of judges developing, on some important things – many important things, insofar as human rights now offers a view on nearly everything – loose standards that also look to each other horizontally across the world.  In that world, to be an outlier on free speech is a subtly prescriptivist statement and, frankly, a disturbing one if you are me or, I imagine, Eugene.

Again, this is not to suggest that my colleagues argue in bad faith – it is just that the idea of free expression, for all but a handful of self-identified “conservative” or “libertarian” international law types, is, in all good faith, not what the jurisprudence of the First Amendment today grants to Americans.  One can perhaps live with it provided that it is subtly de-legitimized as an “outlier” position, and provided that it is strictly limited to the US, and provided also that other mechanisms – libel tourism, for example – allow more internationally enlightened standards to rein in what Americans allow themselves but also allow to spill over to the world of discourse abroad.  As one participant in some panel said somewhere in the late 1990s, at the dawn of the global internet age, the problem with American speech is that the US is not just an “uncontrolled” haven for speech for its own people – we could maybe live with that – it’s that it serves as an “uncontrolled” haven for others in the world, too.

This, in turn, is rooted in a view of polities that takes deep offense, in the first place, at the idea that political communities ought to be self-governing, in the specific sense that the US sees its constitutionalism, from the bottom up, popular democratic sovereignty mediated by a constitution which has the democratic assent of its political community.  The alternative, internationalist, view is that constitutions and constitutional standards, including on matters such as speech, are a matter of national expression of universal human rights – which in turn means universal rights as finally interpreted and defined by international bodies.  A top down view of the source of legitimacy – and a quite mistaken, in my view, conflation of “universal” and “international.”

The vision of the world being put out by this form of speech management is one that aims at global identity politics and global elite management of speech and other things in the interests of what amounts to global “communalism.”  At this point in time, the source of that communalism today is religion, as the relentless pursuit of offense to religion by the leading Bad Actors at the HRC of this issue makes clear.  The foolishness of the “always engage” policy is to believe that if one only were to take that reference out of the HRC draft, it would be magically be okay.  But this question of religion is not going to disappear because it is in or not in some draft.  If you are the serious, or even not so serious, Islamic republics, the world’s theocracies or even semi-theocracies, then this is the cornerstone of values in this matter of human rights.  It is a battle that cannot be “engaged” except to lose by dribs and drabs in venues such as the Human Rights Council, or frankly anywhere in the UN.

The final point here is that both human rights and liberal internationalism appear to be in the process of changing their meaning.  The American conservative or, more precisely, democratic sovereigntist, complaint about human rights has traditionally been that it is a tool by which self-defined political progressives pursue agendas that they cannot manage to achieve through domestic democratic mechanisms.  That remains true and part of the on-going expansion of ‘human rights’ as a way of talking into simply a substantive agenda of progressive politics.  Far more important than that, looking into the future, is the way in which human rights is being transformed from a liberal language of individual rights into a communalist language of group rights, illiberal and multiculturalist.

Liberal internationalism, I’d suggest, is gradually becoming “multicultural internationalism.” Human rights loses its central meaning of individual liberal claims and becomes a mechanism for managing global communalist, principally religious, claims.  It gradually turns the ideal of a liberal world into a vision of a quasi-Ottoman empire writ global, facilitated, ironically, by a language of human rights that gradually allowed itself to be redefined into something illiberal.   Accommodating of group identities, to a certain extent, because, in its own way, the world of the Ottoman empire was both accommodating and humane.  But not secular and still illiberal.

(One fast update: I see I’m taken to task in the comments for attributing things to the “international law community” or IL professoriat at large without naming names or otherwise backing this up.  I mention it because this is a fairly common charge in comment threads about various kinds of generalizations in blog posts, mine and zillions of others.  Sometimes I think it a fair point, other times not.  This is really a longer, separate post about ethics of blog posting, but actually, at least on this occasion, I don’t think – contrary to the comment – that I owe any recitation of particulars.  This is not an academic paper; it’s a blog post.  I’m asserting a generalization – “if my confreres were honest about it” – on the basis of my long experience with a particular academic community.  Sure, your mileage may differ.  But no, look, in a blog post, I don’t think I have any obligation to spend another five pages putting in particulars.  If that means I’m just asserting it on my personal authority, nothing more, that’s right, and fine by me.  If I thought I had to provide academic chapter and verse for stuff in blog posts, I wouldn’t blog.  If you conclude, on the other hand, that I routinely really have no idea what I’m talking about, then presumably you’ll do that “exclude x” function; all good.

That, of course, is partly because I think I do know this particular community pretty well and think I’m right about that – not as some hidden agenda of whatever, nor some dark conspiracy, but simply because – without using up time of my research assistants, but simply consulting my own sense of this scholarly community (so, again, if you want to dispute this for not having so much as run a Westlaw search, sure, you can, and I’ll merely shrug and say, well, you can’t please everyone) – I can’t think of very many occasions on which US First Amendment standards have been defended as the right thing, whether for the rest of the world or, as my impression goes, even for the United States.

I haven’t read everything, and perhaps there is some body of literature out there I’m unaware of – but it is not really very likely.  The feelings in the international law professoriat, to judge by its scholarship at least, or my distilled recollection of it, are that the jurisprudence of the First Amendment does not take hate speech seriously enough.  If that is an accurate characterization, even if merely on my take of it, then I think that if you are Eugene, and hold his views on hate speech, that is not irrelevant information to you.

But, more broadly, in the ethics of blogging, as it were, the fact that I have not “named names” or spent five pages documenting what is plainly my own view of a community in which I have been a long and active participant is not an issue.  One might dispute my characterization, but merely to say ‘you didn’t document your subjective impression’ does not actually move me, at least not when it comes to blogging.  This is a very important reason, however, why I am skeptical about citations to blog posts, at least on the ethics with which I offer them, in actual scholarship.  I’m not doing scholarship here.)