Stuart Taylor on Obama Administration’s Endorsement of Restricting “Advocacy of Religious Hatred That Constitutes Incitement to Hostility”

That’s in his new National Journal column; Taylor is highly respected (by others as well as by me) and known to be quite moderate, so I hope this will bring the issue more attention. And it leads me to ask this question:

The Obama Administration’s cosponsored U.N. Human Rights Council resolution puts it on record as urging other countries “to take effective measures, consistent with their obligations under international human-rights law, to address and combat” “any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence” (and possibly even “negative racial and religious stereotyping”). In context, this is a call for legal punishment, not just for counterspeech or social sanctions. (For more on why this is so, see my earlier post.)

Nor is the call limited to punishment of speech that falls into one of the narrow free speech exceptions recognized under American law (such as the one for incitement that’s intended to produce imminent — presumably within a few hours or at most a few days — lawless conduct, and likely to produce such conduct); “incitement to hostility,” for instance, is clearly constitutionally protected in the U.S., as is what most other countries would call “incitement to discrimination … or violence,” since the incitement exception is narrowly limited to incitement of imminent misconduct, not of misconduct at some unspecified time in the future.

So say that some foreign official, for instance from a conservative Muslim country, asks the Administration about this:

Here you are urging all countries to take effective measures to address and combat any advocacy of religious hatred that constitutes incitement to hostility. And yet in your own country there are prominent speakers — radio talk show hosts, columnists, bloggers, and the like — are arguing that our brand of supposedly ‘extremist’ Islam is evil, dangerous, and terrorist-coddling. That sounds to us like advocacy of religious hatred, and it’s certainly incitement to hostility. What are you going to do about it?

How should the Administration respond?

(a) “We agree that this sort of advocacy of religious hatred that constitutes incitement to hostility should be punished, and we will try to see to it that it is.”

(b) “We agree that this sort of advocacy should be punished, but unfortunately the constitutional rules under our First Amendment keep it from being punished. But we’re doing what we can to relax those rules, for instance by appointing judges that will interpret the First Amendment more in line with international norms, or by having the Solicitor General file briefs urging judges to interpret the First Amendment that way.”

(c) “We agree that this sort of advocacy should be punished, but unfortunately the constitutional rules under our First Amendment keep it from being punished. And it’s too tough for us politically to try to change that, so we’re going to be noncompliant with our own proposal.”

(d) “Actually, though this looks like a call for everyone to restrict such speech, actually if you interpret ‘consistent with their obligations under international human-rights law’ to refer only to those treaties that each country has signed, it turns out that this call binds other countries and not us, since when we signed any treaties that call for such restrictions, we expressly added reservations saying we wouldn’t restrict such speech. So really this is a call for other countries to restrict speech, not for us to restrict speech. Bet you didn’t realize that!”

(e) “Of course this is a call for everyone to restrict such speech, but we don’t really think that’s a good policy. We just think it’s more speech-protective than what most countries do, so we’d like them to shift at least to this intermediate position. We ourselves, however, won’t move to this intermediate position. We will stick with our own approach to free speech, and not follow the proposal we’re making here. This is a proposal for countries like yours, not a country like ours.”

(f) “Come now — this is international human rights. No-one expects it to be taken seriously. You can keep doing what you like, we can keep doing what we like.”

(g) “Resolution? What resolution? No resolution. Hey, look, over there — shiny!”