Prof. Peter Spiro on Why “Hate Speech” Should Be “Ban[ned]” in the U.S. — and on How It Might Be Done, Using International Law

From yesterday’s Opinion Juris post by Prof. Peter Spiro, one of the leading international law scholars in the country:

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.

The result: national foreign relations are seriously compromised by the irresponsible act of an individual. For structural and functional reasons, that doesn’t make a lot of sense. It’s the rationale behind the Neutrality and Logan Acts. A similar rationale undergirds the ouster of states from foreign relations — along the lines of Hamilton’s dictum in Federalist No. 80 that “the peace of the Whole should not be left to the disposal of the Part.”

And the First Amendment? Call me a relativist. We have some pretty good empirical data from the scores of other countries that ban hate speech (in part through signing on to article 20 of the International Covenant on Civil and Political Rights) that a permissive approach to hate speech is not a prerequisite to functioning democracy. On the contrary, our European friends would argue that democracy is better served by banning such material. Either way, our exceptionalism on this score doesn’t serve us very well.

This isn’t any sort of apology for the killing (especially ugly given Stevens’ dedication to the rebel effort against the Gaddafi regime). In the first instance, it’s a recognition of international realities: do we want to take hits like this so that films like that can be made? In the second, it’s a recognition of where international law is going on the issue: in a different direction than we are.

But how can this be done, given the First Amendment? Well, in Treaties, International Law, and Constitutional Rights, published in 2003 in the Stanford Law Review (one of the top three law journals in the country, Prof. Spiro suggested a mechanism: American decisions to sign on to international treaties may cut back on the scope of the protections of the Bill of Rights, for instance the First Amendment.

True, the Supreme Court has supposedly said otherwise, in Reid v. Covert (1957): “[N]o agreement with a foreign nation can confer power on the [federal government] which is free from the restraints of the Constitution” (speaking of the Bill of Rights). But, Prof. Spiro argues, this supremacy of the Bill of Rights really isn’t that strong: The President and the Senate can, in the long run, “insinuat[e] international law” that would create “a partial displacement of constitutional hegemony” (for instance, with “an international norm against hate speech … supply[ing] a basis for prohibiting it, the First Amendment notwithstanding”). “In the short term,” international norms would and should be “relevan[t] … in domestic constitutional interpretation.” But “In the long run, it may point to the Constitution’s more complete subordination.”

Prof. Spiro is both defending the notion that treaties should be able to trump constitutional rights — “If some constitutional norms are more appropriately set at the international level” (and he believes they are), “that should justify a treaty power that, in some cases, overcomes even the Bill of Rights” — and predicting that treaties will over time do so. Courts, he acknowledges, would try to “maintain[] the formal hegemony of the domestic constitution,” but “this formal hegemony may disguise a loss of domestic constitutional autonomy over the long run.” “Constitutional rights ‘adjusted’ by treaty norms are changed by them. The Constitution is read to conform with the treaty.”

Here are the closing paragraphs of Prof. Spiro’s article (emphasis and some paragraph breaks added), so you can see some of these quotes in context, and so you can see Prof. Spiro’s view on how decisions such as Atkins v. Virginia — which cited international law in interpreting the Eighth Amendment as banning the execution of mentally retarded murderers — can lead to a narrowing of other constitutional protections, such as the First Amendment.

[T]his analysis supplies a normative basis for national decisionmakers to rebalance rights. To take the concrete case, an international norm against hate speech would supply a basis for prohibiting it, the First Amendment notwithstanding.

C. Insinuating International Law

It is unlikely in the extreme that the treatymakers would undertake such a frontal assault against the supremacy of constitutional rights given the clear current lack of constitutional authorization to constrain rights on international law grounds. The consensus behind constitutional supremacy remains formidable; given the implausibility of a formal constitutional amendment reversing constitutional doctrine on the question, it would take a constitutional moment of the highest order to overcome the supremacy norm. As a matter of constitutional analysis, then, there is no real argument that the law has changed or is likely to change in the future.

The analysis is not, however, irrelevant to current constitutional practice, for it also justifies putting international regimes to work in the context of constitutional interpretation. This use of international regimes has been engaged. In U.S. courts, those asserting rights are no longer embarrassed to deploy international law arguments, as they once were. The United States Supreme Court is regularly subjected to such arguments, especially from amici (including foreign government amici). International law is becoming part of the vocabulary of American constitutional law. Although its doctrinal place remains unsettled, international law appears poised to make unprecedented inroads in the making of American constitutional law.

The constitutional place of international norms is most hotly contested in the death penalty context. Blocking the execution of mentally retarded offenders, the majority in the 2002 decision in Atkins v. Virginia adverted to the “overwhelming[] disapprov[al]” of such executions “within the world community.” That observation, although buried in a lengthy footnote, generated intense opprobrium from each of two dissents in the case. Justice Rehnquist argued that “if it is evidence of a national consensus for which we are looking, then the viewpoints of other countries simply are not relevant.” For his part, Justice Scalia sarcastically disclaimed the relevance of the international community, “whose notions of justice are (thankfully) not always those of our people.” But if the suggestions above are tenable, it is no longer useful to speak in terms of “our people,” and an international consensus may be relevant to the determination of constitutional rights norms.

This battle is now being fully engaged, on academic, judicial, and policy fronts. Deploying international law as an interpretive tool reflects a defensive strategy, ostensibly a process of domestication rather than one of submission. This may mask what is, in fact, a partial displacement of constitutional hegemony. International law may be a process in which the United States and U.S. entities participate, but it is not a creature of the Constitution. On the other hand, resistance and insulation may no longer be viable options. One can expect more frequent deployment of international norms as part of the domestic rights discourse. In the long run, international norms may be played, not merely as persuasive agents, but as trumps.

Conclusion

Constitutional rights have presented a discursive bulwark against the encroachment of international law. The continuing refusal to contemplate the international determination of rights betrays the embedded nationalist orientation of constitutional theory, and the field of foreign relations law proves to be no exception. These nationalist assumptions may be conceptually vulnerable in the face of the changing architecture of international law and community. Constitutional rights have bowed to the treaty power and the exigencies of foreign relations as a matter of historical practice, even as the inviolability of domestic rights interpretation has been set as a matter of constitutional faith. Accompanying doctrines of constitutional hegemony, deviations notwithstanding, were justified in a world in which law offered no protection of individual rights.

As the regime of international human rights grows thick, however, that justification should no longer stand unchallenged. As transnational society develops a common rights culture, one in which the disaggregated United States enjoys a voice, the supremacy of international rights may be normatively sustainable.

In the short term, this argues for the relevance of international norms in domestic constitutional interpretation. In the long run, it may point to the Constitution’s more complete subordination.

Thanks to Peter Brownback for the pointer to yesterday’s post from Prof. Spiro.