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Can “Hate Speech” Be Banned in the U.S. Under International Law?

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by Publius
Posted September 13, 2012, 11:18 AM

Yesterday at Opinio Juris, Professor Peter Spiro, an expert on internation law, wrote:

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.

Professor Eugene Volokh responds:

[H]ow can this be done, given the First Amendment? Well, in Treaties, International Law, and Constitutional Rights, published in 2003 in the Stanford Law Review (one of the top three law journals in the country), Prof. Spiro suggested a mechanism: American decisions to sign on to international treaties may cut back on the scope of the protections of the Bill of Rights, for instance the First Amendment.

True, 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, Prof. Spiro argues, 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.”

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.”

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