The First Amendment and Obama’s Administration

October 6, 2009

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On October 2, 2009, the U.N. Human Rights Council approved a resolution that was cosponsored by the United States and Egypt which called on states to condemn and criminalize “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence." The resolution also condemns "negative stereotyping of religions and racial groups", which can only mean that any criticism of Islam, and we know that Islam is the real issue here, will be seen as “negative stereotyping”. Furthermore, what will be perceived as “negative stereotyping” is to be decided subjectively by Muslims themselves.

How did the United States get involved in this denial of the basic principles of free speech and thought? The American delegates claimed that the measure was a part of the Obama administration’s effort to reach out to Muslim countries. It is true that the resolution did state that, “The exercise of the right to freedom of opinion and expression is one of the essential foundations of a democratic society". And although the resolution is not legally binding, it is morally so. This is almost as damaging as was argued by Eugene Volokh,

“But why the fuss, some might ask, if we’re protected by the First Amendment? First, if the U.S. backs a resolution that urges the suppression of some speech, presumably we are taking the view that all countries — including the U.S. — should adhere to this resolution. If we are constitutionally barred from adhering to it by our domestic constitution, then we’re implicitly criticizing that constitution, and committing ourselves to do what we can to change it.

“So to be consistent with our position here, the Administration would presumably have to take what steps it can to ensure that supposed "hate speech" that incites hostility will indeed be punished. It would presumably be committed to filing amicus briefs supporting changes in First Amendment law to allow such punishment, and in principle perhaps the appointment of Justices who would endorse such changes (or even the proposal of express constitutional amendments that would work such changes).”

There is also irony in Egypt co-sponsoring this resolution since, as Jeremie Smith, Geneva director of the Cairo Institute for Human Rights Studies, said “Egypt’s co-sponsorship of the resolution on freedom of expression is not the result of a real commitment to upholding freedom of expression…If this were the case, freedom of expression would not be systematically violated on a daily basis in Egypt"

Other human rights activists pointed out that the resolution appears to protect religions rather than believers and encourages journalists to some kind of self-censorship.

"Unfortunately, the text talks about negative racial and religious stereotyping, something which most free expression and human rights organizations will oppose. The equality of all ideas and convictions before the law and the right to debate them freely is the keystone of democracy " said Agnes Callamard, executive director of London-based group Article 19, that was formed at the time of the fatwa on Salman Rushdie in 1989.

Not all is lost. Although the resolution was passed unanimously, Western countries did express their reservations on the issue of protecting religions from criticism.