A New International Law "Value" -- Freedom from "Defamation of Religions"?

Washburn University law professor Liaquat Ali Khan has an interesting article in The American Muslim called Combating Defamation of Religions:

A new value is emerging in the realm of the peoples' rights. Now two years in a row, the United Nations General Assembly has passed a resolution called, Combating Defamation of Religions. Although the Defamation Resolution applies to all religions, it highlights "the negative projection of Islam in the media and the introduction and enforcement of laws that specifically discriminate against and target Muslims." ...

The General Assembly resolutions may contain soft international law. With the passage of time and compliant state behavior, some resolutions pave the way for the formation of a multilateral treaty or customary international law. In almost all cases, these resolutions reflect the international community’s views, which cannot be dismissed as mere opinions. These views, even when they fall short of opinio juris, influence multilateral relations and compose the sociology of international law....

[T]he Defamation Resolution urges states to prevent political institutions and organizations from fomenting discrimination, hostility, and violence against religious groups....

The idea of combating the defamation of religions, though morally sound, is difficult from a legislative viewpoint and will pose serious drafting challenges. The idea, however, poses no greater problems than prohibiting hate speech against racial, ethnic, or religious groups — a law adopted in almost all countries of the world except the United States. One key function of law is to make distinctions and draw balance between competing rights. In the complex realm of human affairs, no right is absolute, not even free speech or the dignity of religion. Accordingly, the law against defamation of religions may be constructed in a way that does not abridge legitimate speech including artistic freedom and yet protects the dignity of religion....

I appreciate the article's acknowledgment that many criticize the resolution on free speech grounds — yet it seems to me hard to read the article as anything but an endorsement of the resolution, and an endorsement of some restrictions on "[il]legitimate speech" that undermines "the dignity of religion." Unfortunately, the article doesn't explain just how the "serious drafting challenges" are to be resolved; and though I e-mailed Prof. Ali Khan on Monday to ask him for his thoughts on the subject, I haven't yet heard back from him. It's therefore hard to figure out precisely what kind of speech Prof. Ali Khan and other backers of the Resolution would like to restrict. A good place to start, though, is one of the provisions of the resolution:

The Commission on Human Rights ... Urges 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.

Prohibiting the dissemination of xenophobic ideas aimed at any religion that constitute incitement to hostility — sounds like a pretty broad proposition. It would cover many atheist criticisms of religion generally; many secularist criticisms of fundamentalist Christianity (or Islam or Judaism); condemnation of religious groups that are alleged to be cults or scams; many theological criticisms of a wide range of religions; many pro-gay-rights or pro-women's-rights condemnations of religions that are seen as hostile to gays or women; and much more.

I think American law is correct in protecting even racist speech, or speech that advocates discrimination (even when limited to illegal discrimination) or violence. But the Resolution, and the very concept of "defamation of religions," suggests the suppression of much more speech than even that.

Two more thoughts:

1. Slippery Slopes: Note how Prof. Ali Khan relies on "The idea, however, poses no greater problems than prohibiting hate speech against racial, ethnic, or religious groups — a law adopted in almost all countries of the world except the United States." This is precisely what those who fear slippery slopes worry about.

A narrow exception for so-called racial or ethnic "hate speech" is adopted (often partly based on grounds that racial or ethnic hostility is illogical because it turns on irrelevant traits such as people's skin color). Then it's broadened to cover religious "hate speech," though religion is ideology and hostility to people based on their ideology is at least more sensible than hostility based on race. (Though I think that religious hostility is generally unjustified despite this, there is an important distinction between racial and religious hostility — but a distinction that many foreign hate speech laws disregard.)

Then this is used as an analogy to support proposed bans on "defamation of religion" generally, a category that's considerably broader than calls for discrimination or violence against the people who adhere to the religion. After all, almost all countries restrict "hate speech"; that broad acceptance suggests (the argument goes) that the restrictions are indeed sound; why not extend them a little further? And of course once we slip down to restrictions on defamation of religion, those restrictions in turn can be used as analogies to support further restrictions.

2. The Subtle Insinuation of International Law into Our Constitutional Law: Finally, this returns me to a Stanford Law Review article I read a few years ago. Signing treaties, the article said, may erode the Bill of Rights: American decisions to sign on to international treaties may erode the protections of the Bill of Rights, for instance the First Amendment.

Yes, 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 it turns out that 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."

These quotes are not from some anti-internationalist "The U.N. is coming to take away our liberties" conservatives. They are from Treaties, International Law, and Constitutional Rights, by Prof. Peter Spiro, one of the leading American international law scholars. 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.

Of course, some people may be quite happy about this: They might well conclude that parts of the Bill of Rights should be superseded by "international" norms, both those explicitly mentioned in treaties and those created by authoritative organs such as the U.N. General Assembly (which themselves derive their legitimacy from treaties that crated them). They may think the international lawmaking community — mostly, I suspect, composed of European legal and political elites, plus of course those segments of American legal and political elites that are involved in this field — will indeed reach better results than those provided for by the current understanding of the U.S. Constitution.

But those of us who disagree should vigilantly watch for, and resist, the "displacement of constitutional hegemony" that the article welcomes. We should insist that the President and the Senate consistently stress in all the treaties they sign and ratify that our agreement to the treaty is constrained by our Constitution, and that the treaty should be read to conform to the Constitution, and not the other way around. We should be careful that none of the treaties that our elected representatives sign include language that broadly approves of "new value[s]" "in the realm of peoples' rights" such as freedom from "defamation of religions," or that authorizes international institutions to create such "new value[s]."

We should criticize judges who rely on international norms in interpreting American constitutional provisions (in this respect, reading Prof. Spiro's article has led me to reconsider some of my views in this post, and to view with much more alarm reliance on international law in American constitutional interpretation). And we should assiduously publicize the ways in which international rules are, in our view, worse than ours, for instance to show that foreign bans on "hate speech" actually end up banning (as American First Amendment thinking would have suggested) a good deal of speech that deserves to be protected (see, for instance, this post by David Bernstein).

Today, as Prof. Ali Khan points out, many foreign countries do not endorse the "emerging" "peoples' rights" "value" of freedom from "defamation of religion" (though enough endorse it to get General Assembly approval). But most foreign countries have endorsed values that aren't that far off, such as freedom from racial and religious "hate speech." It's quite plausible that in a few decades, Prof. Ali Khan's perspective will indeed be adopted by the great majority of foreign countries. I'd hate to see that undermining free speech in America — yet Prof. Spiro's arguments suggest that it might, especially (but not necessarily only) if the General Assembly Resolutions are embodied in future treaties.

Our Constitution is far from perfect, both as written and as interpreted. I think courts should indeed change their views on many issues, and people should try to press courts to do so. But this should be our decision as Americans. We should not cede our control over our constitutional rights to international bodies, international professional elites, or even to our own President and Senate.

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Baltimore Hebrew University Professor Supporting Legal Penalties for "Negative Depiction of Religion":

From a May 12, 2006 column by Dr. Robert O. Freedman, columnist for the Baltimore Jewish Times, professor of political science at Baltimore Hebrew University, former acting president of the university, and former visiting professor at Princeton (emphasis added):

As the crisis over the Danish cartoons depicting the Islamic prophet Muhammad appears to be dying down, it is time to create a system to prevent such a costly crisis from erupting in the future.

As a result of the crisis, lives were lost, embassies were attacked in the Muslim world, the loyalty of Muslims living in Europe was put into question, and the image of Islam in the West as a violent religion was reinforced, thus increasing the possibility of the "clash of civilizations" desired by Islamic radicals such as Osama bin Laden....

In order to rectify the situation, and to prevent a future crisis of this type from erupting, what is needed is a "code of conduct" for the newspapers and other media in both the Western and Muslim worlds. All governments must agree that the negative depiction of religion is "out of bounds," and penalties should be imposed on those who violate the code of conduct.

The problem, of course, is to determine the difference between legitimate criticism of someone who acts in the name of a religion, and the negative depiction of that religion.

To solve that problem, I propose the creation of an International Religious Court, composed of Christian, Muslim and Jewish clergymen with one clergyman representing each of the three religions. Anyone feeling that his or her religion was insulted could appeal to the International Religious Court for a ruling on the matter, and the court would then determine whether a penalty should be invoked. It would be the responsibility of the government on whose territory the action took place to impose the penalty....

[G]overnments may be reluctant, on grounds of sovereignty, to impose penalties required by such an international court. Nonetheless, there is a precedent wherein a number of states have, in certain cases, voluntarily agreed to abide by the decisions of the International Court of Justice, which could be a model for the International Religious Court....

As you might gather, my reaction to this is much the same as my reaction to the "Defamation of Religions" argument I criticized below. Interestingly, unlike Prof. Ali Khan's work, Dr. Friedman's argument doesn't even mention the possibility that the nation in which he lives might be constitutionally barred from going along with the orders of any such court.

Thanks to David Gerstman (Soccer Dad) for the pointer.

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The Effort to Ban "Defamation of Religion" and the Democracy Deficit of International Law:

The ongoing effort to establish an international law norm against "defamation of religion" - discussed in Eugene's excellent post - nicely exemplifies several of the shortcomings of international law discussed in my forthcoming Stanford Law Review article (coauthored with John McGinnis).

In the article, John and I contend that what we call "raw international law" - international law norms that have not been ratified through the domestic political process either by means of a congressional statute or through treaty ratification - suffers from a serious democracy deficit. Raw international law is formulated by international jurists and organizations that are largely free from democratic control; in addition, the content of raw international law is heavily influenced by authoritarian and totalitarian states and their representatives in international institutions such as the International Court of Justice and the United Nations. Obviously, the latter have little incentive to promote international law norms that benefit either their own people or those of democracies, and much incentive to promote interpretations of international law that cement their own grip on power by restricting civil liberties.

The attempt to create a binding international law norm against "defamation of religion" suffers from both of these weaknesses. It is striking that the effort is spearheaded by a coalition of unelected international jurists and bureaucrats (such as UN High Commissioner for Human Rights Louise Arbor) and authoritarian governments.

The key role of the latter is noted in this article by law professor Liaquat Ali Khan, a supporter of the ban. As Ali Khan points out, the recent UN General Assemby Resolution endorsing a ban on "defamation of religion" was passed by a coalition of mostly authoritarian nations over the opposition of most of the world's liberal democracies. It is no surprise that a coalition of international legal elites and domestic tyrants would favor a legal rule that increases their power and provides a license for censorship. These groups have a long history of promoting similar measures, such as the ultimately abortive New World Information Order initiative of the 1980s, which sought to create an international censorship regime.

Even strong defenders of the primacy of international law over domestic law do not claim that a UN General Assembly resolution does not in itself constitute binding law. However, as Ali Khan notes:

General Assembly resolutions may contain soft international law. With the passage of time and compliant state behavior, some resolutions pave the way for the formation of a multilateral treaty or customary international law. In almost all cases, these resolutions reflect the international community’s views, which cannot be dismissed as mere opinions. These views, even when they fall short of opinio juris, influence multilateral relations and compose the sociology of international law.

In sum, the General Assembly resolution does not in and of itself establish a binding legal rule, but it is an important step in that direction - at least if one accepts the views of strong advocates of the primacy of international law over domestic law.

I am no starry-eyed defender of domestic democratic processes. They have numerous weaknesses, some of which I have analyzed in detail in my academic work. However, as John and I argue in our article, democratic domestic lawmaking processes - especially if restrained by a strong domestic Constitution limiting government power - generally lead to much better outcomes than the undemocratic international lawmaking processes that result in such norms as the ban on "defamation of religion."

There is no need to be unduly alarmist. In the near future, international law initiatives such as this one are unlikely to seriously endanger our rights. At the same time, international law may pose more of a threat to liberty in some European and other nations where resistance to the domestic application of raw international law may be weaker than in the US.

Moreover, the effort to insinuate raw international law into domestic law has only recently begun, and as Eugene has often pointed out (see links here), it may over time gain momentum through slippery slope processes of various types. It is important to head this process off at an early stage.

The best way to do so, as John McGinnis and I (and also Eugene) contend, is for both courts and legislators to emphasize that international law is not binding on the United States unless it has been incorporated into domestic through standard legislative processes - such as enactment in a congressional statute or treaty ratification by a 2/3 majority of the Senate. International law norms that conflict with the Constitution can only bind us if they have been enacted through a constitutional amendment. Other democracies should pursue a similar approach.

In addition, the US and other liberal democracies should consider denying funds to the UN Human Rights Council (which is a strong supporter of the Defamation of Religion resolution, among other attacks on freedom of speech) and other international bodies that promote new international law norms that undermine freedom of speech and other civil liberties. The democracies of the developed world provide these bodies with the lion's share of their funding, and the power of the purse can be used to curb their depradations, even if it can't end them completely.

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Is Resistance to International Law Futile?

Over at Opinio Juris, prominent international law scholar Peter Spiro criticizes Eugene Volokh's and (by implication) my claim that U.S. should try to block the overriding of domestic law by international law norms. He argues that such resistance is futile, and that we should instead work to improve the substantive content of international law norms themselves:

I think this is a lost cause over the long run, which is to say nothing about the merits of hate-speech bans or any other particular international norm. There are too many ways in which international law now insinuates itself to mount this sort of centralized defense. For instance, if the states start to pick up on an international norm, it will eventually be indigenized, making its way upwards to the organs of the national government (think what's happening now with Kyoto). Ditto for non-state actors (think universities and hate-speech codes). I think the Supreme Court is likely to desist from the open use of IL sources for the moment, in the face of the push-back after Roper, but that won't stop justices from incorporating IL norms under cover. Over the long run resistance will be futile.

Which all might be by way of a call to arms of a different sort: to try to influence international norms at the international level, rather than wasting time trying to shut them at the border. The US is obviously a powerful actor in the making of international law. It won't win every battle (and this particular one may be a loss) but over the long run that will present the better strategy for protecting (and projecting) our conception of constitutional liberties.

I think that Spiro's conclusion is, at the very least, overdrawn. At most, he shows that we cannot stop all overriding of domestic law by international law. That doesn't mean that we can't stop at least some of it, perhaps even succeed in the vast majority of cases. Over the last several decades, the US has successfully resisted the domestic imposition of numerous international law norms, including "hate speech" laws, the 1977 Protocols to the Geneva Convention [which I originally mislabeled as the "Third Protocol"], the New World Information Order (mentioned in my last post), the Law of the Sea Treaty (which was eventually revamped as a result of US objections and the Reagan Administration's refusal to sign and follow the original version) and others.

Furthermore, Spiro's examples conflate two very different modes of incorporation of international law into domestic law: what John McGinnis and I call "raw international law" and the domestic incorporation of international law through ordinary domestic legislative processes. Raw international law consists of international law norms (e.g. - customary international law) that we have not ratified through congressional or state legislation or through the treaty ratification process. It is this kind of international law that McGinnis and I argue is likely to be systematically inferior to domestic law. By contrast, international law that has passed through the domestic lawmaking process is likely to be no worse, on average, than other domestic legislation. It is only the domestic incorporation of raw international law that should be categorically rejected. There is as yet no reason to believe that we can't resist successfully, and indeed we have done so on numerous past occasions.

Finally, I agree with Spiro that we should use our leverage to improve the substance of international law norms. Indeed, in my last post I suggested one possible strategy for doing so: denying funding to the UN Human Rights Council and other international organizations that promote international law norms that violate civil liberties.

However, the two strategies are not mutually exclusive. The United States should work to improve the content of international law, while simultaneously doing all we can to prevent the overriding of domestic law by harmful international law norms that may be enacted by others over our opposition. The two strategies may even be mutually reinforcing: international organizations and foreign powers may be less likely to try to create harmful new international law norms if they know that the US will refuse to follow them. Our chances of succeeding in both endeavors will, of course, increase if other liberal democracies adopt similar policies.

UPDATE: Peter Spiro briefly replies to this post here. He writes:

I want sometime soon to set out more detailed thoughts on the piece he's co-authored with John McGuinness on the incorporation of international law. For the moment, I'd just say that unlike Ilya and John I would take account of the many non-formal (or at least non-federal) channels through which IL is making itself felt in the US. Just because it's not working its way through the federal government doesn't make it illegitimate. Is there a process problem with California adopting Kyoto's standards? With a university adopting international standards on hate speech (again, leaving the merits aside)? My point is that this is where the action is. Formal incorporation (political or judicial) comes in the way of a mopping-up exercise or as an afterthought, after the real battles have been fought in the trenches.

Just to clarify, John McGinnis and I have no process objection to state legislatures incorporating international law norms into statutes, except in cases where doing so violates the US Constitution; such legislation is, on average, likely to be no worse than other state legislation. Our critique is directed at the claim that raw international law should override domestic law even in cases where no domestic legislation has been passed incorporating it and (as Professor Spiro has argued) even where the international law in question violates the US Constitution. Also, I do not agree that "formal incorporation" is just a "mopping-up exercise or . . . an afterthought." Passing legislation is costly and difficult and requires the support of key political actors and (often) of the general public. Ratifying a treaty or passing a constitutional amendment requires even broader support. Raw international law, by contrast, is often created with the support of only a coalition of relatively unaccountable international elites and authoritarian rulers of foreign states.

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State University Considering Discipline of Students for Walking on the Word "Allah":

The calls for suppression of speech that offends religion (see here and here) don't seem to be limited to purely academic arguments. Here's an e-mail from the San Francisco State University to the College Republicans:

I am writing to you as President of the College Republicans to follow-up with you regarding the letter of complaint that was received by the Office of Student Programs and Leadership Development on Thursday, October 26, 2006, notifying the office of alleged violations of University policy. The complaint is in regards to alleged actions at a College Republican sponsored event, "Anti Terrorism Rally," that occurred in Malcolm X Plaza from 12-2 PM on October 17, 2006. The complaint describes alleged actions of walking on a banner with the word "Allah" written in Arabic script. I am writing to inform you that the Office of Student Programs and Leadership Development has concluded its investigation into the events that occurred on October, 17, 2006 in Malcolm X Plaza. The investigation was put in place to review the following alleged violations of University Policy as were addressed in the written complaint:
1. Allegations of attempts to incite violence and create a hostile environment
2. Allegations of actions of incivility (Standards for Student Conduct Title V, 41301)

Resources presented by interviewees during interview process for review include: 1. Standards for Student Conduct Title V, 41301
2. CUSP II Strategic Plan
3. California penal code

The Investigative report has been forwarded to the Student Organization Hearing Panel for review. The chair of SOHP ... is your contact person should you have specific questions regarding this review.... (I have cc her on this message). She will also be in contact with you regarding any questions and specifics regarding the review. You may continue to contact me regarding any general questions regarding the SOHP process. You can find the process online at http://www.sfsu.edu/~ospld/conduct/hearing_panel.htm. For a copy of the Code of Conduct, please see http://www.sfsu.edu/~ospld/conduct/policies.htm. I have also attached a word copy of these documents, to this email for your convenience. To review CUSP II, please see http://academic.sfsu.edu/apee/planning/plan05-10.php.

Please keep in mind Carl that you as a student organization have the right to have a representative at any stage of possible disciplinary proceedings. However, attorneys are not permitted as representatives in this process.

Sincerely,
... Director
Office of Student Programs and Leadership Development
Student Services Building, Suite 105
San Francisco State University

FIRE (The Foundation for Individual Rights in Education) has more:

The College Republicans “offense” took place on October 17, 2006, when they held an anti-terrorism protest in SFSU’s Malcolm X Plaza. During the protest, several members of the group stepped on butcher paper they had painted to resemble the flags of Hamas and Hezbollah. Unbeknownst to the protestors, the flags they had copied contain the word “Allah” written in Arabic script.
As FIRE points out, burning the American flag, and stepping on it, "is without question a constitutionally protected act of political protest"; stepping on flags of Hamas and Hezbollah, even when they contain religious symbols on them — or for that matter deliberately stepping on religious symbols — is equally protected.

Note also that the university is not simply trying to prevent violence here (which it in any event should do by preventing and punishing the violent responses to offensive student speech, not by punishing the speech itself, at least unless it fits within the narrow category of individually addressed insulting "fighting words," which doesn't apply here). The university is expressly investigating (with the threat of formal sanctions behind the investigation) the possibility that the students' speech is ideologically offensive — creates a "hostile environment" and is "incivil[]." A clear First Amendment violation, it seems to me.

UPDATE: Here's a story about the rally in the campus newspaper.

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Expressive Conduct:

I often hear people say that the First Amendment doesn't protect flagburning, because it's conduct rather than speech. My view is that burning a flag, like waving a flag, is a conventionally understood form of communication, and both should thus be treated as "speech" no less than, say, handwritten materials (which are literally neither "speech" nor "press"), elephant or donkey pins worn around campaign season, paintings that have no words, and the like.

Of course such conduct may often be restricted because it causes certain harms through its noncommunicative component -- an ordinance prohibiting fires in a brush zone could be used against flagburning. But this just reflects the analogy to literal "speech"; an ordinance prohibiting loud noises at night in a residential area could be used against the use of loudspeakers at 11 p.m. (even when the loudspeakers are used in the process of literal "speech"). When, however, either the loudspeaker use or the flag waving or the flag burning is banned because of its communicative effects, for instance because they convey offensive messages or supposedly diminish the emotional force of certain symbols, that is a speech restriction that should be evaluated under the First Amendment.

But for those who disagree, let me ask: SFSU is investigating (with the threat of administrative punishment) the College Republicans for, among other things, supposedly being "incivil" and creating a "hostile environment" by stepping on butcher-paper representations of Hamas and Hezbollah flags (which also contained the name of Allah in Arabic script). If you think that there's no First Amendment problem with banning flagburning, on the theory that it's not speech, I take it that you think there's no First Amendment problems with punishing (even criminalizing) the Republicans' actions, right?

Likewise, if SFSU tried to punish a student for waving a Confederate flag (assume no special circumstances such as the flag's being stolen, or the waving been intended and understood as a personal insult and invitation to fight addressed to one particular person), I take it you'd say "Sure, no First Amendment problem," right? Or is there a distinction here I'm missing?

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The New Anti-Blasphemy Laws:

Debra Saunders, an S.F. Chronicle columnist, writes:

This story starts with an "anti-terrorism rally" held last October on campus by the College Republicans. To emphasize their point, students stomped on Hezbollah and Hamas flags. According to the college paper, the Golden Gate (X)Press, members of Students Against War and the International Socialist Organization showed up to call the Republicans "racists," while the president of the General Union of Palestinian Students accused the Repubs of spreading false information about Muslims.

In November, the Associated Students board passed a unanimous resolution, which the (X)Press reported, denounced the California Republicans for "hateful religious intolerance" and criticized those who "pre-meditated the stomping of the flags knowing it would offend some people and possibly incite violence."

Now you know that there are students who are opposed to desecrating flags on campus — that is, if the flags represent terrorist organizations....

As to the disciplinary action contemplated by SFSU, and FIRE's reaction to it:
The university's response [to FIRE]? Spokesperson Ellen Griffin told me, "The university stands behind this process."

And: "I don't believe the complaint is about the desecration of the flag. I believe that the complaint is the desecration of Allah." ...

Sounds to me like SFSU is acknowledging that under SFSU rules, desecrating Allah — or, to be precise, desecrating religious symbols — is indeed prohibited. Everything old (here, blasphemy bans) is new again.

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Cambridge Student "at the Centre of a Race-Hate Probe After Printing Anti-Islamic Material":

From the Cambridge Evening News (U.K.):

The 19-year-old second year student at Clare College was in hiding today (Friday, 09 February) after printing the racist cartoon and other vile material.

The article is said to be so inflammatory the undergraduate has been taken to a secret location for his own safety.

Today (Friday, 09 February), senior college officials were locked in urgent talks about how the material came to be published and what action to take against the student at the centre of the scandal....

The student magazine, Clareification, printed a cropped copy of the cartoon of the prophet Mohammed next to a photo of the president of the Union of Clare Students.

The cartoon was captioned with the president's name and vice versa.

There was also comment suggesting one was a "violent paedophile" and the other was "a prophet of God, great leader and an example to us all."

The cartoon was the same one which caused riots across the world when it was printed in a Danish newspaper....

The paper had been renamed Crucification for a special edition on religious satire.

The front page included headlines stating: "Ayatollah rethinks stance on misunderstood Rushdie".

On page six, pictures were shown of Muslims holding placards reading: "Behead those who insult Islam" and "Freedom go to Hell."

Enraged students have bombarded the Union of Clare Students with complaints and vice-president of the university's Islamic society described it as "hugely offensive" and "crude unabashed prejudice." ...

Read the whole story for the full picture.

Here's my question: I understand the British have a different free speech tradition than ours; they're not bound by our First Amendment jurisprudence; there are indeed some speech restrictions that we forbid but that other democracies can tolerate and still preserve a vibrant marketplace of ideas, and means for democratic self-government.

But can anyone tell me just what European (including English) students, and citizens more broadly, are free to say about Islam without fear of expulsion from college, or even potentially criminal punishment (as has been discussed in other cases of harsh criticism of Islam)? Islam is an ideology, an ideology which may have a great impact on life and government in Europe. For European self-government and public debate to work, Islam needs to be discussed forthrightly and unreservedly much like libertarianism or Socialism or Communism or atheism or Christianity need to be discussed. Doubtless much critical discussion of it is still possible today without the risk of punishment (I even set aside for purposes of this post the risk of violent retaliation by private individuals).

But how is a European to know just what he is free to say, and what may be condemned as "race-hate" or "anti-Islamic material" or whatever else? Is a publication, for instance, free to republish the Mohammed cartoons in order to discuss whether they are indeed "racist," and for that matter what they mean? Is a publication free to publish any images of Mohammed, or is it barred from doing so on the grounds that some Muslims might find even non-hostile images insulting? What exactly can be said without the reasonable fear of punishment?

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SFSU Republicans Will Face No Punishment:

The Foundation for Individual Rights in Education responds:

San Francisco State University (SFSU) announced yesterday that its College Republicans will face no punishment for hosting an anti-terrorism rally at which participants stepped on makeshift Hezbollah and Hamas flags. SFSU’s decision comes after months of pressure from the Foundation for Individual Rights in Education (FIRE), national and local media, and the public -- all of which called on the school to uphold the students’ constitutionally guaranteed right to free expression....

SFSU’s [action] began after an October 17, 2006 anti-terrorism rally at which several members of the College Republicans stepped on pieces of paper they had painted to resemble Hamas and Hezbollah flags. Unbeknownst to the protestors, the flags they had copied contained the word “Allah” written in Arabic script. On October 26, a student filed a formal complaint with the university against the College Republicans, alleging “attempts to incite violence and create a hostile environment” and “actions of incivility.” Although university administrators could have settled the matter informally or dismissed the charges outright, the university instead chose to press forward with a hearing on the charges.

FIRE wrote to SFSU President Robert A. Corrigan on January 23, 2007, to stress that no American public institution can lawfully prosecute students for engaging in political protest or for desecrating religious symbols. SFSU replied to FIRE’s letter on January 29 by saying that the university would continue to investigate the complaint. When SFSU scheduled a hearing for March 9, FIRE immediately wrote to President Corrigan again to urge him to call off the hearing. Undeterred by clearly established constitutional jurisprudence, SFSU went forward with the hearing as scheduled. President Corrigan then responded to FIRE on March 13, once again standing by the university’s disciplinary process.

Yesterday afternoon, President Corrigan wrote to FIRE with the welcome news that “the Student Organization Hearing Panel (SOHP) unanimously concluded that the College Republicans organization had not violated the Student Code of Conduct and that there were no grounds to support the student complaint lodged against them.” ...

Glad to hear it, but I agree with FIRE: "The College Republicans should never have been dragged through an investigation and hearing for their protected political expression, and it is an outrage that SFSU carried on with this for so long when it had the power to dismiss the charges informally. We hope that SFSU will make whatever policy changes are necessary to ensure that this does not happen again."

If SFSU responded to an allegation that some group had insulted the President, or opposed the war, or criticized Christianity, by putting them through an extended investigation and a hearing, I take it we'd be quite troubled even if ultimately SFSU exonerated the students. The same should apply if the allegation is that the group trampled on the name of Allah.

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The New Anti-Blasphemy Rules, Again:

Last month, a Tufts student newspaper (The Primary Source) published the following ad (thanks to the Foundation for Individual Rights in Education for the pointer):

ISLAM

ARABIC TRANSLATION: SUBMISSION

In the spirit of Islamic Awareness week, the Source presents an itinerary to supplement the educational experience.

"I will cast terror into the hearts of those who disbelieve. Therefore strike off their heads and strike off every fingertip of them." — The Koran, Sura 8:12

MONDAYAuthor Salam Rushdie needed to go into hiding after Iran's Ayatollah Khomeini declared a fatwa calling for his death for writing The Satanic Verses, which was declared "blasphemous against Islam."
Slavery was an integral part of Islamic culture. Since the 7th century, 14 million African slaves were sold to Muslims compared to 10 or 11 million sold to the entire Western Hemisphere. As recently as 1878, 25,000 slaves were sold annually in Mecca and Medina. (National Review 2002).

TUESDAYThe seven nations in the world that punish homosexuality with death all have fundamentalist Muslim governments.
In Saudi Arabia, women make up 5% of the workforce, the smallest percentage of any nation worldwide. They are not allowed to operate a motor vehicle or go outside without proper covering of their body. (Country Reports on Human Rights pracitces 2001)

WEDNESDAYMost historians agree that Muhammed's second wife Aisha was 9 years old when their marriage was consummated.
"Not equal are those believers who sit and receive no hurt, and those who strive and fight in the cause of Allah with their goods and their persons. Allah hath granted a grade higher to those who strive and fight with their goods and persons than to those who sit. Unto all Hath Allah promised good: But those who strive and fight Hath He distinguished above those who sit by a special reward." — The Koran, Sura 4:95

THURSDAYThe Islamist guerillas in Iraq are not only killing American soldiers fighting for freedom. They are also responsible for the vast majority of civi[l]ian casualties.
Ibn Al-Ghazzali, the famous Islamic theologian, said, "The most satisfying and final word on the matter is that marriage is a form of slavery. The woman is man's slave and her duty therefore is absolute obedience to the husband in all that he asks of her person."

FRIDAYMohamed Hadfi, 31, tore out his 23-year-old wife Samira Bari's eyes in their apartment in the southern French city of Nimes in July 2003 following a heated argument about her refusal to have sex with him. (Herald Sun)

If you are a peaceful Muslim who can explain or justify this astonishingly intolerant
and inhuman behavior, we'd really like to hear from you! Please send all letters to
tuftsprimarysource@gmail.com.
The preceding December, the student newspaper also published a satirical Christmas carol — in its Christmas carol parody issue — cricitizing affirmative action by criticizing Tufts' black admitted students; in my view, that carol was offensive because unduly harsh and hyperbolic, but it was clearly an attempt to condemn affirmative action in admissions.

Yet according to the a decision by the Tufts University Committee on Student Life both these items violate Tufts policies and are thus forbidden at Tufts. Tufts policies prohibit, among other things, "[h]arassment or discrimination against individuals on the basis of race, religion, gender identity/expression, ethnic or national origin, gender, sexual orientation, disability, age, or genetics", including (emphasis added) "attitudes or opinions that are expressed verbally or in writing." Here's what the University Committee — a majority of which apparently consists of faculty members — had to say about the anti-Islam item (in the interests of saving space, I omit the similar findings about the anti-affirmative-action carol) (emphasis added):

[W]e find that the MSA proved, by a preponderance of the evidence, that The Primary Source harassed Muslim students at Tufts, and created a hostile environment for them by publishing “Islam-Arabic Translation: Submission.” The Committee found that the MSA established that the commentary at issue targeted members of the Tufts Muslim community for harassment and embarrassment, and that Muslim students felt psychologically intimidated by the piece....

[A]lthough Tufts students should feel free to engage in speech that others might find offensive and even hurtful, Tufts University’s non-discrimination policy embodies important community standards of behavior that Tufts, as a private institution, has an obligation to uphold. Our campus should be a place where students feel safe, respected, and valued. Freedom of speech should not be an unfettered license to violate the rights of other members of the community, without recourse.

We find that the above-mentioned carol and commentary, rather than promoting political or social discourse, as claimed by the members of The Primary Source, instead were designed to harass and intimidate members of the Tufts community because of their race (black) and religion (Islam)....

[T]he Committee has attempted to strike a balance between protecting the rights of students to exist on campus without being subjected to unreasonable attacks based on their race or religion and protecting the rights of students to publish controversial writings....

From now on, all material published in The Primary Source (whether characterized as satirical or otherwise) must be attributed to named author(s) or contributor(s).

We ask that student governance consider the behavior of student groups in future decisions concerning recognition and funding....

The Committee believes that it is important for Tufts University to foster an intellectual climate in which students feel free to express their thoughts, however controversial. Nevertheless, based on the evidence and arguments presented at the hearing on April 30, 2007, the Committee on Student Life holds that The Primary Source violated Tufts University’s non-discrimination policy in publishing the carol “O Come All Ye Black Folk” and the commentary “Islam-Arabic Translation: Submission.”

Lovely: Harsh criticism of Islam doesn't — in the Committee's view — "promot[e] political or social discourse." Rather, it is an "unreasonable attack[]" (and it's up to the Committee to decide which attacks on religions are reasonable and which aren't).

What's more, this "unreasonable" speech violates the "rights of other members of the community." What are those rights? Apparently the right "to exist on campus without being subjected to unreasonable attacks based on their race or religion" (including attacks on the religion generally, even those that don't give any student names in particular). And apparently the right to be free of "attitudes or opinions that are expressed verbally or in writing" that "create[] a hostile environment" for students "on the basis of race, religion, gender identity/expression, ethnic or national origin, gender, sexual orientation, disability, age, or genetics."

In this case, the punishment for the speech is a ban on one newspaper's ability to publish anonymous speech — while other newspapers that express favored views remain free to shield their contributors from social ostracism and other retaliation through anonymity. It requests "that student governance consider the behavior of student groups," which is to say the viewpoints those groups express, "in future decisions concerning recognition and funding."

But more importantly, the ruling finds that the speech violated general campus rules that make such speech "unacceptable at Tufts" and require "prompt and decisive action." Though it looks like no individual students are being disciplined in this instance, if the Tufts Administration accepts the ruling, it will send a clear message that students who express "attitudes or opinions" like this will be seen as violating campus anti-harassment rules, and will be subjected to "prompt and decisive action," which campus rules say may involve "the disciplinary process," against individual students as well as against organizations. After this decision, what should Tufts students feel free to say in criticizing religions, or in criticizing affirmative action?

Welcome to the new freedom of speech at the new university. No, the Committee's actions don't violate the First Amendment, since Tufts is a private university. But they violate basic principles of academic freedom and public debate on university campuses, especially when the top university administrators claim to "fully recognize freedom of speech on campus." Appalling.

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"Intentionally Putting a Negative Spin on Islam" -- Flabbergasting!

Apropos the Tufts University's prohibition on blasphemy, the Tufts Daily has this quote:

The [Muslim Student Association] joined the case after the publication of an April 11 item in the Source saying that Islam is a violent religion. "We have to take it seriously," said junior Shirwac Mohamed, the MSA co-chair who will represent the organization at today's hearing. He said that many Muslim students, even those not normally active in MSA, have complained about the item.

"I looked at the article and was flabbergasted," he said. "It's intentionally putting a negative spin on Islam."

My first reaction was — welcome to America: We're allowed to intentionally put a negative spin on religion here, just as we're allowed to criticize any other ideology. There should be nothing flabbergasting about open debate in America, debate which doesn't assume that any religious belief is sacrosanct.

But I guess the joke is on me, because welcome to Tufts: A university panel (consisting mostly of faculty members) has concluded that in fact Tufts does not allow "attitudes or opinions that are expressed verbally or in writing" that create a "hostile environment" through "unreasonable attacks based on [students'] religion." Or at least that's so when, in the commitee members' views, the criticisms of religion somehow manage to avoid "promoting political or social discourse"; somehow "putting a negative spin of Islam," which I would have thought is a form of political or social discourse, doesn't actually promote such discourse.

So, my apologies, Mr. Mohamed: You're right to be flabbergasted when people "intentionally put[] a negative spin of Islam," when you're in Tufts' No Unreasonable Anti-Religious Attitudes Or Opinions Zone.

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FIRE's Greg Lukianoff on the Tufts Punishment of Blasphemy:

An excerpt from his post:

So does [the item in the student newspaper] paint Islam in a nice light? No. Is it one-sided? Yes, but that was kind of the point. The students were responding to what they thought was a one-sided and overly rosy depiction of Islam during Islamic Awareness week. But is it unprotected harassment!? One certainly hopes not, or else “harassment” just became a truly lethal threat to free speech -- an “exception” that completely swallows the rule....

If what the complaining students wanted to say was that the [newspaper's] facts were wrong, then -- while this still would not be harassment -- that could have been an interesting debate. But instead, in sadly predictable fashion, the students plowed ahead with a harassment claim that, based on the hearing panel’s decision, appeared not even to raise the issue of whether or not the statements in the ad were true, but turned only on how they made people feel.

To be fair, I take it the students' claim was that the collection of facts was one-sided and unfair -- but surely giving universities the power to punish students for newspaper articles that are seen by some as one-sided and unfair is a power that's lethal to freedom of discussion.

Lukianoff goes on:

I doubt that the Tufts disciplinary board thought through the full ramifications of their actions. If a Muslim student had published these same statements in an article calling for reform in Islam, would that be harassment? If Tufts wished to be at all consistent (a dubious bet here), it would be.

Since those students and faculty obviously did not think about the ramifications of this decision, we put it to you, President Bacow: do you think the publication of factual assertions should be a punishable offense if they hurt the wrong people’s feelings, regardless of whether or not they are true?

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Stanley Fish on the Tufts Case Involving Blasphemous Speech and Harshly Anti-Affirmative-Action Speech:

From the Tufts Daily:

When distinguishing offensive from harassing content, some experts brought up the Hustler Magazine v. Falwell case. In this 1988 Supreme Court decision, prominent evangelist Jerry Falwell sued the racy Hustler magazine for running a parody liquor ad about him having drunken sex with his mother in an outhouse. Falwell sued for libel and intentional infliction of emotional distress, but the Court ruled 8-0 in the magazine's favor, upholding its right to publish the parody.

"The Falwell case makes the point that satire, joking and caricature are part of the free flow of ideas in a democratic society," said Stanley Fish, who writes the "Think Again" blog for the New York Times on education, politics and society. He is a professor of law at Miami's Florida International University and dean emeritus of the College of Liberal Arts and Sciences at the University of Illinois at Chicago.

"Presumably, some people in the university who are members of minority groups would have felt insulted," he said of responses to the Source articles. "But being insulted doesn't mean you have any legal redress against those who have offended you."

To this extent, he said that the administration should not have even denounced the carol, as it did immediately after its publication.

"They're saying, 'We're good hearted. We're good people. We're on the right side, even though by law we cannot penalize them,'" he said. "[But] the university is not in the business ... of policing the views or sentiments of its students. That's not what it's supposed to doing. It's supposed to be delivering instruction and equipping them with the analytical tools necessary to perform research."

I don't share Fish's view that the University shouldn't have denounced the anti-affirmative-action carol, which struck me as cruel, offensive, and exaggerated in a context where such exaggeration is rude. It seems to me quite proper that leading members of a community, such as university administrators, would speak up against such rudeness and in defense of those who were being insulted.

But I'm glad to hear that Fish is apparently criticizing the disciplinary action against the student newspaper. I'm not sure how this fits into Fish's complex views about free speech (see, for instance, the closing paragraphs of this interview). But I'm pleased to hear his current position (and his willingness to speak based on it), whether it is consistent with his past views or is a departure from those views.

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The New Anti-Blasphemy Laws:

For more on the resurgence -- in the U.S., fortunately still mild -- in attempts to punish blasphemy, see this thread here.

As I noted below, the Shmulevich prosecution seems to be an unusual sort of hate crime prosecution, in which Shmulevich's punishment may be enhanced simply because he was motivated by religious hostility. But the connection to blasphemy seems to me clear: Speech or conduct that is intended to offend certain religious groups is especially likely to yield pressure for greater enforcement (e.g., from religious activist groups), and is especially likely to be obviously motivated by someone's religion. It's thus especially likely that someone who is blaspheming and who violates some other law -- even, for instance, who merely recklessly inflicts more than $250 in damage on a bystander's property in the course of a blasphemous act -- will face vastly increased punishment.

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San Francisco State University Civility Code Temporarily Enjoined:

From The Recorder ($):

U.S. Magistrate Judge Wayne Brazil issued a temporary injunction against the CSU system Wednesday, in which he struck down a portion of the CSU conduct code that mandates students "be civil to one another." That language would likely not survive First Amendment scrutiny at trial, the magistrate found.

"It's fine to say, 'We hope you're civil to each other,'" Brazil said from the bench. "It's not fine to say, 'We'll punish you if you're not.'"

The magistrate also told the CSU system it can only discipline students for "intimidation" or "harassment" when the health or safety of another person is threatened. In addition, Brazil struck down language in the San Francisco State University student handbook that holds out the possibility of corrective action against student groups if their members behave in opposition to SFSU goals and principles.

The case grows out of an anti-terrorism rally held last year by College Republicans at SFSU. The event turned testy when the Republicans stomped on Hamas and Hezbollah flags bearing "Allah" written in Arabic script. Onlookers from the school's Muslim community objected, and one started to climb on stage to remove the flag, according to the university's court filings. The two sides engaged in heated debate.

After the protest, the school received a complaint alleging the Republicans had violated the student code by attempting to "incite violence" and create a hostile environment, the school says in its court filings. After an investigation, the complaint against the Republicans was dismissed....

For more on the incident, see here.

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Opinion Preliminarily Enjoining SFSU Civility Code

is now online; for more on the matter, see here.

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McLean's Article on the Campaign to Create an International Law Norm Banning "Defamation of Religion":

Canada's MacLean's magazine has an excellent article on the United Nations campaign to create a new international law norm banning "defamation of religion."

Last year, Eugene Volokh and I criticized this movement in a series of posts. As I first pointed out in this post, the campaign - which is spearheaded by authoritarian Muslim states seeking to curtail criticism of Islam - exemplifies the dangerous influence of repressive regimes over the content of international law. John McGinnis and I have analyzed this problem in detail a series of articles (see here and here). John and I do not believe that all new international law norms are as dangerous as this one. But we do suggest that the influence of nondemocratic states over the content of these norms should lead us to be wary about allowing them to override the domestic law of liberal democracies.

An interesting aspect of the McLean's article are the comments by Louise Arbour, former UN High Commissioner for Human Rights. In the past, Arbour was supportive of efforts to censor speech she perceived as insulting to religions, including the famous Danish Mohammed cartoons. She claimed that publication of the cartoons might violate international law banning "hate speech" and further argued that international law requires states to criminalize "xenophobic" and other prejudicial speech (see pg. 1220 of this article for cites). In the MacLean's article however, Arbour is quoted as denouncing the Muslim states' campaign to censor speech that supposedly "defames" Islam at the UN Human Rights Council:

Louise Arbour, the former Canadian Supreme Court justice who served as the UN human rights commissioner, accused the countries of imposing "taboos" over the [UN Human Rights] council. "It is very concerning in a council which should be . . . the guardian of freedom of expression, to see constraints or taboos, or subjects that become taboo for discussion," she said at a news conference. She also noted that the treatment of homosexuals, who are prosecuted as criminals in a number of Islamic countries and others, is "fundamental" to the debate on sexual discrimination around the world. "It is difficult for me to accept that a council that is the guardian of legality prevents the presentation of serious analysis or discussion on questions of the evolution of the concept of non-discrimination," Arbour said.

Ironically, Arbour herself advocated imposing "constraints" and "taboos" to criminalize speech that she considered to be excessively hostile to particular religions or ethnic groups. Her current dissatisfaction with the Muslim states' efforts to take her principles farther than she intended is an excellent illustration of Eugene's point that censorship regimes tend to break out of the initial seemingly reasonable limits that their supporters might have wanted to impose.

As Eugene noted, this is particularly true of a broad, amorphous norm such as a ban on "defamation of religion." Given the broad scope of religious ethics, almost any political or ideological statement might be seen as offensive to the values of one religious group or another. To some theologically conservative Muslims and Christians, advocacy of gay equality is just as offensive to their religious sensibilities as a negative portrayal of the Prophet Mohammed was to those who sought to suppress the Danish cartoons. And claims that Muslim nations mistreat homosexuals might be viewed as no less "defamatory" of traditional Islam than the Mohammed cartoons. Arbour's desire to permit the former while censoring the latter is unlikely to cut any ice with the would-be censors. The right place to block this particular slippery slope is at the very top of the hill.

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Governments -- Don't "Inflexibly Cling[] To Free Speech ... With Absolute Disregard for Religious Feelings":

From what is apparently the Preliminary Document of the African Regional Conference Preparatory to the Durban [Anti-Racism] Review Conference — Draft proposal submitted by South Africa [i]n its capacity as coordinator of the group of African countries accreddited to the United Nations Office at Geneva:

We, the African Regional Conference, having met in Abuja from 24 to 26 August 2008 in the framework of the review of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance held in Durban, South Africa, in 2001, hereby issue the following Declaration and Programme of Action:

13. Calls upon States to avoid inflexibly clinging to free speech in defiance of the sensitivities existing in a society and with absolute disregard for religious feelings; ...

On top of that, the Conference:

11. Reiterates strongly that freedom of religion or belief, freedom of opinion and expression, and non discrimination are interdependent, and stresses the need to strengthen the process of effectively adjudicating cases associated with incitement to religious hatred under article 20 of the International Covenant on Civil and Political Rights [which mandates that "Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence and other analogous instruments" "shall be prohibited by law"] ...

14. Reiterates that it is critical for Governments and the judiciary to ensure that acts that constitute incitement under article 20 of the International Covenant on Civil and Political Rights are closely monitored and do not enjoy impunity;

15. Urges the Human Rights Committee to clarify the scope and content of article 20 of the International Covenant on Civil and Political Rights with the aim, among other things, of defining an appropriate threshold for enacting relevant legislation;

16. Also urges States, as a matter of priority: ...

(c) To pay special attention to the political use of discrimination and xenophobia, notably the ideological and electoral permeation of racist and xenophobic platforms into the programmes of democratic parties; ...

20. Calls upon States to pay attention to the serious nature of incitement to religious hatred, such as anti-Semitism, Christianophobia and, more particularly, Islamophobia, and to promote the fight against those phenomena by strengthening interreligious and intercultural dialogue concerning the common ethics of all religions;

21. Calls also upon States to wage a systematic campaign against incitement to racial and religious hatred and to respect the complementarity of all the freedoms embodied in the International Covenant on Civil and Political Rights; ...

(Source: UN Watch, echoed by Canadian Jewish News; thanks to Religion Clause (Prof. Howard Friedman) for the pointer.)

The push for the new anti-blasphemy laws is alive and well. After all, "religious feelings" must be protected, and incitement of "hostility" to religions must be prohibited — only those who "inflexibly cling[] to free speech" can think otherwise.

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