One Film That Put Free Speech in the Cross Hairs

One Film That Put Free Speech in the Cross Hairs

September 15, 2012
Originally published in Hot Air

From Hot Air:

Hans Bader, Senior Attorney at the Competitive Enterprise Institute, wrote on September 13 that “the Egyptian government said, ‘We ask the American government to take a firm position toward this film’s producers within the framework of international charters that criminalise acts that stir strife on the basis of race, colour or religion.” Some in the realm of international law have sided with the Egyptian government . . .Similarly, journalists and a professor argued that the film’s producer should be prosecuted. . .. . .Bader noted “. . .under the Bush Administration, ‘the United States defended the right of the Danish and French newspapers to publish the cartoons.’ The Obama Administration has done no such thing regarding the film depicting Mohammed, although it distanced itself from the embassy’s statements.)”

Ironically, “the most open and transparent administration in history” is pushing for a blasphemy clause in the United Nations. Bader noted that:

In USA Today, liberal law professor Jonathan Turley criticized the Obama administration for endorsing a ‘blasphemy’ exception to free speech: ‘Around the world, free speech is being sacrificed on the altar of religion. Whether defined as hate speech, discrimination or simple blasphemy, governments are declaring unlimited free speech as the enemy of freedom of religion. This growing movement has reached the United Nations, where religiously conservative countries received a boost in their campaign to pass an international blasphemy law. It came from the most unlikely of places: the United States.’

Other legal scholars have articulated their reservations about this measure as well. In this field of international law, Bader wrote that if such an ordinance can be passed by the UN, it will severely curb our civil liberties.

International law (including unratified treaties) can also undermine civil-liberties by arguably creating a ‘compelling state interest‘ in regulating speech that conflicts with international norms. The First Amendment’s text does not contain any written exception for speech that the government has a ‘compelling interest’ in banning, but the Supreme Court has made up such a ‘compelling interest’ exception. Legal scholars argue that compliance with either international treaties, or ’customary international law‘ (international norms contained in treaties that the U.S. Senate may not even have ratified), is such a ‘compelling interest,’ and that hate speech orspeech that defames or incites hostility to religions such as Islam must be restricted pursuant to international law, since treaties have been interpreted by committees of legal scholars as requiring countries to restrict such speech.

[...] The federal appeals court in Washington once upheld a municipal ordinance restricting protests around embassies based on a ‘compelling interest’ derived from international law, although a divided Supreme Court partly reversed that ruling in Boos v. Barry on the grounds that one of its restrictions was not proven to be essential to achieving that compelling interest, because Congress, unlike municipal authorities, had not supported the restriction or viewed it as essential. (It upheld other less onerous restrictions without really needing to rely on interests derived from international law.) Three of the Supreme Court justices, however, would have upheld the ordinance in its entirety, including its prohibition ‘on the display of any sign within 500 feet of a foreign embassy if that sign tends to bring that foreign government into ‘public odium’ or ‘public disrepute,’ based on the reasoning of the lower court, which had relied on international law to justify the restriction. (On the other hand, the Supreme Court’s earlier decision in Reid v. Covert (1957) said that ‘no agreement with a foreign nation can confer power on the [federal government] which is free from the restraints of the Constitution’ (i.e., the Bill of Rights). Still earlier cases arguably rely on international law to reject rights claims. The law is murky on this point.)

Bader warns that such curtailments to free speech via “customary international law” could be expanded to irreparably harm protected speech in other public venues.