ASIL Live-Blogging, “Limitations on Freedom of Opinion and Expression: Growing Consensus or Hidden Fault Lines?”

Moderator: Charlotte Ku, University of Illinois

Speakers: Michael O’Flaherty, UN Human Rights Committee; Paula Schriefer, Freedom House; Tad Stahnke, Human Rights First; Christopher Wolf, Hogan Lovells Privacy  and Information Management practice group

Remarks by Michael O’Flaherty

While we don’t talk about a hierarchy of human rights, freedom of expression is nevertheless one of the most important.  As a result, the regulation of freedom of expression requires close scrutiny.

Typical issues: journalistic space; blasphemy laws; defamation laws; protection of political speech space; and the internet.

The UNHRC has been concerned with freedom of expression for quite some time.  As a result, the HRC has considerable jurisprudence with respect to Article 19 of the ICCPR.  In light of this jurisprudence, the HRC determined that it was imperative to issue General Comment No. 34, which, after nearly 30 years, finally updated the interpretation and implementation of Art. 19 by not only the HRC but also the State parties.  Article 40 authorizes the HRC to issue General Comments to offer assistance to States in implementing and complying with the ICCPR.  The General Comments are widely accepted by the States, and they are given considerable weight and authority on matters falling under the ICCPR.

General Comment No. 34 was opened for public comment last year.  The HRC received 80 separate submissions containing over 350 suggested changes to the General Comment.  Twenty States from across the world entered submissions, including the US – the only time the US has commented on a draft General Comment before the final product.  This seems to be a change in the US approach to General Comments produced by the HRC.  In addition to these twenty States, scholars, NGOs and human rights organizations submitted briefs, which were quite helpful.  After all this input, the General Comment was published in July 2011.

The scope of the General Comment is divided into three parts.  First, the breadth of “expression” was expanded: every manifestation of every form of expression is covered under Art. 19.  This was important because of the changes in which the manifestation of expression have occurred over the years.  Second, the General Comment considers the technological development in the modes of expression, in particular social media.  Third, the Comment confronted the right of access to information and concluded that States have a proactive duty to publish information on matters of public concern.

Restrictions noted by the Comment: Art. 19(3), which provides for limitations on speech, are limited in scope.  The test for limitations on expression were clearly laid out in the General Comment.  The ements of the test are as follows: (1) legality – the limitation must be expressed in secular law; (2) restriction must be for the specific purposes itemized in Art. 19 – no other purpose may be invoked (while the Comment did not expound those specific purposes, it did address what constitutes “morals” and stated that the “moral” restriction must be compatible with universal values of human rights); (3) restrictions on expressions must be necessary and proportional; and  (4) there must be a direct nexus between the speech sought to be regulated and the “good” sought to be protected.

Weaknesses in the Comment: the Comment is not the last word on freedom of expression; however, it can never be that.  The jurisprudence on freedom of expression is constantly evolving; therefore, a “final word” on such a right is not tenable.  Moreover, it is not always wise to overly emphasize the content of certain terms.  And finally, the General Comment’s status under customary international law is open for debate.

Remarks by Christopher Wolf*

Focus: hate speech; in particular, on the internet.  There is a lot of violent content on the internet, especially Holocaust denial and a racist speech directed towards children.  Internet hate speech is basically pollution in the market place of ideas.  “The Lesson from Rutgers,” a piece written for CNN last week, addressed hate speech directed towards homosexuals.  Ironically enough, the comments to this piece online were filled with the most vile form of hate speech.

There is an epidemic of internet hate speech, from Facebook to YouTube to other websites.  So what about regulation of this hate speech?  While this speech is vile, laws in this area have proven largely ineffective (notwithstanding the First Amendment concerns as well).  For example, the laws regarding hate speech in Europe are largely symbolic.  In practice, the reflexive use of the law in this area generally results in an even worse response.  The best response to hate speech is often counter-speech in protest.

(Cites Section 230 of the Communications Decency Act)

What is the recommended approach?  Providing intermediaries a larger role in educating the public in engaging in counter-speech, or, as in the case of YouTube, reporting hate speech that is in direct contravention of YouTube’s terms and conditions.  In addition to YouTube, many companies, such as Google, enforce restrictions on hate speech uttered by its users.  But are there standards that these companies use in eliminating such hate speech?  This is hard to tell from the information available.  Nevertheless, in the case of Google, the elimination of hate speech is up to the discretion of the person who is charged with regulating such speech in accordance with its terms and conditions.

In conclusion, while government regulation of hate speech is not the way, these “softer,” self-governing approaches are already being used and have been, for the most part, effective in eliminating the most vile forms of hate speech.

Remarks by Paula Schriefer

The purpose of this address is not to defend hate speech; it is to raise and discuss the legal problems associated with punishing persons who have engaged in hate speech, in particular blasphemy.  In Indonesia, blasphemy is considered hate speech, and as such, persons who engage in blasphemy are regularly punished.  In Pakistan, persons guilty of blasphemy can be executed; however, no one, thus far, has been executed for blasphemy in Pakistan.

The effect of these anti-hate speech laws has actually encouraged attacks on minority groups protected by such laws.

Side Note: A recently promulgated Organization of Islamic Cooperation (OIC) Resolution attempted to balance religious liberties and free speech.

So how do we move forward?  Blasphemy laws are counter-productive and, in fact, constitute hate speech in and of themselves.  They radicalize the local population and encourage attacks on more moderate voices, which, as a result of such laws, have been largely silenced.  Thus, international law should take these practical consequences in mind, and not be driven solely by good intentions.

Blasphemy laws are vague and therefore abused.  They also infringe other human rights in undeveloped States.  Moreover, governments have used blasphemy laws to silence opposition groups.  Individuals have used blasphemy laws to settle personal scores.  And finally, blasphemy laws have often served as justification for violent groups to exterminate those groups with whom they disagree.  As such, blasphemy laws affect both minorities and majorities in equal measure.

The General Comment is good for two reasons: first, it establishes the international community’s approach to hate speech; and second, it has encouraged dialogue on the issue.

Remarks by Tad Stahnke

Free speech is good; hate speech is bad – but how do we deal with the tensions between the two?  Hate speech underpins much violence, but where do you draw the line between lawful free speech and unlawful hate speech?

Solutions: the General Comment is a step in the right direction.  While States should incorporate the proposals in the General Comment into their domestic laws, they can already use “softer” measures to dissuade hate speech, as discussed above.  In addition, UNHRC Resolution 16/18 is a positive development on the matter.  Nevertheless, the implementation of Resolution 16/18 is proving to be problematic.

Ultimately, education about tolerance and freedom is absolutely essential in preempting hate speech and its tragic consequences.

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