12 Sep US Envoy Killing Bolsters Case for Hate Speech Ban
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.
UPDATE: I appreciate the comments below as well as this thoughtful post by Mark Movsesian, and I’m persuaded by the drift. As Mark points out, the film is offensive speech, not hate speech, so the episode doesn’t supply an example in which US submission to article 20 would make a difference. In other words, this isn’t a case in which the US has deviated from IL. The episode does resonate, nonetheless, in the tradition of foreign relations law exceptionalism – in which we abandon our ordinary constitutional optic in the face of international imperatives (doctrinal manifestations of which are many).
I do stand by the Stanford Law Review article in which I argue that the Constitution should bend (and has bent) to international law, which Eugene Volokh takes a shot at here, even when it implicates the constriction of rights. The logic has changed, though. It’s not so much that it serves the national interest (as in the foreign relation law logic above). It’s more that international law is demonstrating resiliency in protecting rights, in something approaching a constitutional system. If we don’t like something about international law, we can work to change it (just as we work to change domestic legal systems). As we become more enmeshed in international law, the less capacity there is simply to opt out.