US Envoy Killing Bolsters Case for Hate Speech Ban

by Peter Spiro

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.

http://opiniojuris.org/2012/09/12/us-envoy-killing-bolsters-case-for-hate-speech-ban/

33 Responses

  1. Wow.  You think because some backwater Wahhabists in a tribal wasteland take offense at something ONE person did, we must change our entire culture?  Newsflash: these pondscum will always hate us. 
     
    Congratulations on becoming the Dinesh D’Souza of Opinio Juris (if you don’t get the reference, watch his interview on Colbert).

  2. Austin,

    As a law blog with strong perspectives from both the left and the right we are trying very hard to keep the discussion at OJ civil and avoid personal attacks.  Your tone is clearly beyond what we normally accept here.

    Roger Alford 

  3. I haven’t seen the film, but am uncertain why a “satirical portrayal of the life of Muhammad” would qualify as hate speech? It seems to me a more fitting term would be “offensive”. 

  4. I’ve come to expect better from Peter Spiro. I, too, am no FA absolutist, but how you get from “not very flattering” to “hate” baffles me.

  5. I don’t think the film would qualify as hate speech. While it could be labeled as offensive or even blasphemous, it does not explicitly incite violence. As such, the film is pretty much satire and I don’t see any practical way of legislating satire. The film would probably constitute protected speech in every modern liberal democracy.

  6. I think banning certain types of speech to avoid offending people that might react violently is too extreme. Plus, less democratic countries will take advantage of such a precedent to justify their own laws infringing on free speech. 

  7. Okay, I take the point about the film not clearly qualifying as hate speech. Perhaps a better example would be the episode involving the preacher whose plan to burn a Koran was thankfully averted. In either case, the dynamic is the same, though — the nation being held responsible for the (questionable) act of the individual. In some cases, the balance would seem prudently to tip away from protecting the speech at issue.

  8. Qur’an 5:72-77   Surah Al-Ma’idah (The Table Spread)
    They do blaspheme who say: “Allah is Christ the son of Mary.” But said Christ (Maseeh): “O children of Israel! worship Allah my Lord and your Lord.” Whoever joins other gods with Allah Allah will forbid him the garden and the Fire will be his abode. There will for the wrong-doers be no one to help.
    They do blaspheme who say: Allah is one of three in a Trinity: for there is no god except One Allah. If they desist not from their word (of blasphemy) verily a grievous penalty will befall the blasphemers among them.
    Why turn they not to Allah and seek His forgiveness? For Allah is Oft-forgiving Most Merciful.
    Christ (Maseeh) the son of Mary was no more than an Apostle; many were the Apostles that passed away before him. His mother was a woman of truth. They had both to eat their (daily) food. See how Allah doth makes His Signs clear to them; yet see in what ways they are deluded away from the truth!

    When anyone speaks of Mohammed the way the Qur’an speaks of Jesus, then people go into the street to burn buildings and kill people. Any ban on “hate speech” or “offensive writings” has to start by banning the Qur’an, after which Muslims will go into the street to burn buildings and kill people. Ultimately the First Amendment problem isn’t that we allow free speech, it is that we ban the Establishment of Islam. Anything less than an admission that Islam is the only true religion will not solve this problem, although banning verbal attacks on Islam while allowing crowds in Libya to shout out anti-Christian slogans may appease some of them since it implicitly admits that they can do what they prohibit us from doing because they own the absolute truth.

  9. Maybe I am not as far as Peter, but having been a foreign service child and having had parents who served in Tunisia during the Algerian War and Nigeria during the Biafran War, while totally respecting people’s First Amendment rights sitting in the United States, once in a while it would be nice if people here sitting in the comfort of their own homes remember there are Americans representing the United States, living and working also as private citizens in many countries in the world, and American military types around the world.  Just remember them – I think that is a modest suggestion.

    Also, we can ask what the security arrangements were at the US Embassies in these places.  I mean compare the Iraq Embassy to the consulate in Benghazi or the US Embassy in Cairo.  Local guards were clearly not the way to go on this.

    As it all happened on 9/11 in two countries to two Embassies, it stretches credulity that this would be a coincidence.  To whom or if the attacks can be attributed to another state is the question.  Whose interests are served by this?  Many many states and non-state actors.

    Best,
    Ben

    Best,
    Ben

    Best,
    Ben

  10. But, Professor Spiro, why would burning a book (ANY book) qualify as hate speech?

    That would seem more a form of expression, and not a threatening form of expression (as a burning cross on someone’s lawn might be viewed, or a bullet-riddled koran placed at the foot of a mosque) but simply offensive. 

  11. This is where I like the margin of appreciation type discussions in the European space and the balancing sometimes on freedom of speech in international or regional instruments.  I think that with the First Amendment we do such balancing defacto in the US but you have to know all these cases to see where are the contours (fighting words, etc).  I am not saying we get to the same space as the Europeans do (or anyone else does) when you add up the First Amendment right and the Supreme Court decisions – but that there is a balancing that we both do that relates to each of our cultures.

    Like the Yahoo Nazi memorabilia auction case in France and in the US.  Different balancing relating to different histories on the freedom of speech.  Or English libel vs. US libel.

  12. Is your proposal based on the content of the speech or the potential for adverse reaction?  In other words would we ban The Book Of Mormon based on its content or only if it was judged to have the potential to incite Mormons to murder?

  13. Peter, I think we already have foreign relations precedents for suppressing free speech: Schenck v. United States, Debs v. United States, where the Supreme Court offered the “clear and present danger” test to allow suppression of dangerous speech. It strikes me that one might use those precedents here (or their modern incarnation in Brandenberg v. Ohio), rather than endorse a general ban on hate speech.  In other words, using Brandenberg, if speech is likely to lead to imminent lawlessness (or violence), it might be suppressed. But the content of the speech shouldn’t itself be the basis for suppressing it.  

    Are you suggesting a different rule than Brandenberg?  

  14. Mr. Spiro,

    I think your Koran burning hypothetical, like the situation you wrote about, is fundamentally different from hate speech. “Hate speech” or “dangerous speech” is primarily characterized by the speaker inciting his or her audience to act in an unlawful manner. It is within the government’s purview to hold the speaker responsible for any ensuing crimes as he or she was advocating for their commission. However, it would be impossible for the government to limit speech which indirectly incites a third party that is angered by the speaker’s remarks. It is simply impractical and misguided to hold a speaker accountable for the violence caused by those who found his or her comments offensive.

  15. Peter,

    You ask “do we want to take hits like this so that films like that can be made?”  I’m not sure that this is the right question.  Effectively, you are asking “must we censor speech when it has a strong potential to prompt someone, somewhere, to engage in acts of violence?”

    I would offer several observations.  First, it may not even be feasible to censor such speech in an age of interconnected digital media.  Second, such a proposal is as an abdication of one of the core democratic principles in order to appease fundamentalists. 

    The problem is not that we allow offensive speech.  The problem arises when those offended by such speech 1) are so used to living in police states that they believe that the offensive material must have been produced with the blessing (if not the active participation) of the foreign state, 2) feel justified in responding to this offensive speech by engaging in acts of violence.

    How is this movie different from the Mohammed cartoons that the Jyllands-Posten ran in 2005?  Should those cartoons have been censored too?

  16. Limiting expression (rather than threatening/hate speech) to prevent unlawful violence carried out on the part of a third party seems to be allowing these unlawful, non-domestic, actors to determine the scope of the  domestic rights to expression. This seems bizarre. 

    We would end up with a rule like: “if expression E seems likely to cause an irrational mob to act violently in some place, E should be prohibited.”
    What one is allowed to say/not say is then determined purely accidentally, based on the whims of an irrational mob. I suspect if we asked the mob in Yemen/Libya what kinds of things we should be allowed to say (“if it is OK, just nod; if it isn’t ok, load your rocket launchers”) we probably wouldn’t be able to say a whole lot of things that we like to.

    While there may be a causal link between the expression and the violence, it does not seem to be the type that should determine the scope of the right to expression. 

    The present case seems to me distinct from the case where the expression is urging the violence to be committed (e.g. “rise up and kill the muslims/jews etc.”). In the case of this movie, or the Mohammed cartoon case, the legitimate, though distasteful, expression of one party caused a very unreasonable and unlawful response from another party. It did not urge the other party to carry out this response; it merely caused it.

  17. Mr. Spiro’s call for legislation on this matter seems to tempt us into post hoc lawmaking (We’re punishing speech based on people’s reaction, is there a serious proposal to ban this speech if everyone had just shrugged their shoulders?)
    More importantly, it looks to me like the speech in question was merely a convenient cover for a planned attack, rather than the cause of the incident.
     

  18. So, if the US signs a treaty supported by the Muslim world that requires signatories to criminalize homosexual acts, the good professor would support the view that the treaty trumps the constitutional rights of Americans to engage in such behavior.

    Actually, he wouldn’t.  HE assumes that international treaties are, and always be, “progressive”   and sees the opportunity to use progressive international norms to override decisions made by US elected officials.  This assumption may or may not be correct over the long-term, but his approach is profroundly anti-democratic.

  19. The Church of Plan 9 believes that it is a sacred duty of Hollywood to periodically make really bad stupid movies. They therefore believe that this blog posting is sacrilegious and are planning to go out into the streets and riot if you do not immediately stop this offensive hate speech.

  20. Can’t you understand? That if you take a law like evolution and you make it a crime to teach it in the public schools, tomorrow you can make it a crime to teach it in the private schools? And tomorrow you may make it a crime to read about it. And soon you may ban books and newspapers. And then you may turn Catholic against Protestant, and Protestant against Protestant, and try to foist your own religion upon the mind of man. If you can do one, you can do the other. Because fanaticism and ignorance is forever busy, and needs feeding. And soon, your Honor, with banners flying and with drums beating we’ll be marching backward, BACKWARD, through the glorious ages of that Sixteenth Century when bigots burned the man who dared bring enlightenment and intelligence to the human mind!
    Inherit the Wind
     

  21. First of all, the Benghazi attack wasn’t a spontaneous response to any film.  It was well-prepared terrorist attack, most likely retaliation to the death-by-drone of al-Qaeda leader al-Libi (a Libyan, as the name implies).  Perhaps we could check the facts, just a little bit.
    Second, the film (or a part of it) was first shown on an Egyptian Salafist TV channel after having languished on YouTube for months.  The film has obviously been dubbed.  This is a well-executed piece of propaganda, a kind of digital Reichstag Fire designed to provide a pretext for the various attacks we see now.  
    What has amazed those of us who cherish speech rights has been the alacrity with which some American commentators have been willing to abandon centuries of tradition to appease those whose design is, quite obviously, to encourage us to do so.
     
    Definite moment of shame.
     

  22. Our Bill of Rights are not subject to relativism. What next, modify the First Amendment so Jews can’t practice their religion so as not to offend Muslims? What is wrong with you? Either you have a Constitution that says what it means, or we don’t have freedom and we don’t have a country.

  23. One of the areas that the internet age brings to light is obvious but I thought it might bear repeating.  When we have our version of freedom of speech and the “marketplace of ideas” we cherish we tend to think in terms of the marketplace as some part or all of the United States.  But, with the internet, the idea brought into the stream of discussion may or may not be about the US marketplace. 

    This report (http://www.imdb.com/name/nm0001402/news#ni36184614)
    suggests the filmmaker was a Coptic Christian and that there was financing from the Coptic Christian community in Egypt of around $60 000 for the film. 

    If that is the case then it is a situation of foreign financing of a US film which when done in the US permits a latitude for freedom of speech that is not available in the home country of the financier.  This is not bad. 

    What is of interest, rather, is the role in other countries with different more restrictive freedom of speech of the US product created under our freedom of speech rights broadcast through the internet.  More aggressively, if one recognizes this ricochet effect or skimming rock (on a pond) vision, one can instrumentalize the US freedom of speech for purposes that are essentially or even purely non-domestic – to influence foreign influence spaces.

    What we see is the second bounce of the rock on the digital pond back into physical space.  The reaction in the foreign place as we are seeing has blowback on the assets of the US in those places – here it is Embassies but it could be private companies associated with the US or ordinary US citizens living abroad.   As the third skip, this blowback then flows back into the United States – influencing our marketplace of ideas at a tertiary level.  Now, that blowback may have been or not the primary purpose but the point is to see the continuing echoes of the idea.

    Moreover, like turning a key in an engine, this act can keep generating ripples that intersect with other ideas in domestic and foreign marketplaces – evolving in ways and directions that may or may not be predictable as the idea falls into the traces of accepted ways of thinking in both the domestic US and foreign idea marketplaces.

    In each of these marketplaces the power of the idea is responded to differently leading to further refracting in the internal dialogue – like on Morning Joe as opposed to say Good Morning Cairo.  Then we get to the reach of those media channels (CNN in every hotel room around the world vs. Toledo Ohio television) and the skips of the rock on the pond do not necessarily diminish in intensity with the decline in energy.  Independent energy – the US political campaign – give the story legs and the rock’s impact resilience.

    These are aspects of our freedom of speech protections that are certainly unintended consequences of the framers drafting of the First Amendment.  Maybe an originalist can find some citation in the discussion of the first Amendment where the Framers discuss the role of US freedom of speech on influencing situations in foreign countries – maybe the city on the hill vision and the American exceptionalism aspect might be there.

    Even the evolving constitution type people might be asked to look for any Supreme Court decisions that spoke to the instrumentalization of US freedom of speech for foreign influence marketplaces.

    Maybe this has not come up in the discussions in these decisions, but we are seeing again that we as citizens might think about these things as Middle East turmoil spreads.

    If you want to change freedom of speech or do not want to change freedom of speech in the US, I think you have to think through this dynamic also to understand resonances that may be relevant or of interest.

    I would think that we would also think of both state and non-state actor using US freedom of speech in this way.  People are bright enough in intelligence agencies to think these things through as far as this or farther.

    For example, we DO NOT KNOW who did the dubbing into Arabic and from the reports one hears that the actors are saying they were duped – that the film they were doing was called Desert Warrior and not Innocence of the Muslims.  The dubbing becomes the interesting thing – not so much the film.  Who dubbed it into Arabic and what was their motivation and is the dubbing accurate are further issues.  Of course, the picking up by the Salafist television station on September 9 is the trigger.  But, who brought it to their attention and who decided to put it up and start this up.

    Like JibJab or any other use of images and dubbing dialogue, one can do many things for many purposes.

    Best,
    Ben

  24. Many of the responses as well as Spiro’s piece reveal a fundamental point: that is is norotriously difficult to define hate speech. The video isn’t hate speech, but rather a crude mockery. And to engage in prosecutions based upon such a nebulous concept in the context of America’s libertarian speech tradition would engender all sorts of problems and unintended consequences about which a book could be written. I would be extremely careful about changing the libertarian speech tradition our country has labored so long and hard to establish. That is, don’t do it.

  25. Response…Isn’t the situation a  “clear and present danger” analogous to crying “fire” in a crowded theatre which the Supreme Court has found to be a legal limitation of free speech?

  26. “…..we the jury find Mr Smith and Mr Jones guilty of violating UN treaties of religious tolerance. The defendents should have know that a protest kiss-in at the Dearborn, MI Chik Fil A would have offended the local cultural sensitivities and spark the violent protest that occured and therefore are hereby prevented from further public displays of affection.” Mob veto!!

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