The Commission on Human Rights ... [u]rges States to take resolute action to prohibit the dissemination through political institutions and organizations of racist and xenophobic ideas and material aimed at any religion or its followers that constitute incitement to discrimination, hostility or violence ...
So harsh criticism of Scientology should be outlawed (unless somehow the government is empowered to decide that it's not a "real" religion). So would harsh criticism of Catholicism — which may well urge hostility to Catholic teachings and the Catholic hierarchy — on the grounds that it supposedly oppresses women or homosexuals. So would harsh criticism of militant Islam. Religious ideas and religious institutions, which are often among the most important and influential ideas and institutions, would thus be legally protected from strong condemnation, condemnation that in many instances (though of course people disagree on which instances) is entirely merited.
Perhaps not coincidentally, the UN High Commissioner for Human Rights, Louise Arbour, has recently publicly condemned a Danish newspaper that published a dozen drawings of Mohammed, some of which were pejorative and all of which were seen as blasphemous by many Muslims (since at least some strains of Islam prohibit depictions of Mohammed). Arbour said that she "deplore[d] any statement or act showing a lack of respect towards other people's religion," and "appointed to UN experts in the areas of religious freedom and racism to investigate the matter." The High Commissioner's office has "asked Danish Prime Minister Anders Fogh Rasmussen for "an official explanation," including asking "the Rasmussen government to respond to the question, 'Do the caricatures insult or discredit?'" If this were just the UN using its own megaphone to express its views, that would be troubling enough. But against the backdrop of the resolutions urging governments to legally suppress "xenophobic ideas and material aimed at any religion or its followers that constitute incitement to ... hostility," the call is even worse.
This also reminds me of my posts from 2003 and 2005 on how emerging "international law" principles can erode the Bill of Rights; as Prof. Peter Spiro, one of the leading U.S. international law scholars wrote in one of the leading U.S. law reviews, 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 [hate speech], 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."
And the article was 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."
What's more, I've heard international law fans urge that U.S. constitutional decisionmaking should be informed not just by express statements in treaties that the U.S. has signed and ratified, but also by international practice outside treaties, by statements in treaties that the U.S. hasn't signed or hasn't ratified, and by actions of international bodies established pursuant to treaties that the U.S. has ratified. What U.N. commissions say and do may thus ultimately affect not just international politics, but the constitutional rights of Danes, Americans, and anyone else who has a broader view of free speech than the U.N. seems to endorse. That's reason, I think, to pay close attention to how international institutions are trying to establish norms that demand suppression of free speech.
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- Daily Illini Fires Editor Who Published the Mohammed Cartoons:
- President of Bar Association in Pakistan, Plus Major Pakistani Party, Supports Murder of Danish Cartoonists:
- The Twelve Mohammed Cartoons, in Detail:...
- U.S. State Department on the Cartoons Depicting Mohammed:
- Bush Cabinet Member Condemns Anti-Christian Blasphemy, and Points to Laws Restricting Incitement to Hateful Expressions:
- Suppressing Anti-Religious Speech -- an Emerging International Law Norm?