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Abigail Esman Gets it Wrong on Free Speech

1-10-2012

By Paul LeGendre
Director, Fighting Discrimination Program

In a December 30, 2011 blog on the Forbes website, author Abigail Esman is off base on a number of fronts starting from the very first words. The title: “Could you be a criminal? US Supports UN Anti-Free Speech Measure” suggests that United Nations Resolution 16/18 seeks to create new speech-related criminal offenses. That couldn’t be farther from the truth.

In the first paragraph, the author suggests that “incitement to imminent violence” – an act that the resolution recommends be criminalized – could mean anything. This is a harmful misconception that serves as a crux of the opposition to this resolution.

The author doesn’t directly dispute a quote from a recent Human Rights First blog on Myth vs. Reality on US Engagement with Islamic States that “the only limitation on speech that is in the operative part of the resolution is incitement to ‘imminent violence,’ which is in accordance with US law.” Yet at the same time the author states that opponents of the resolution “rightly find [this measure] distressing.” How could one be distressed by a provision that recommends the criminalization of only those instances of incitement that are considered criminal under the U.S. Constitution, the highest standard of free speech in the world?

Perhaps the distress results from a misunderstanding as to what constitutes “incitement to imminent violence”? Through her examples, the author seems to indicate that speech could be considered “incitement to imminent violence” simply because an individual or group of individuals react violently to it. This is an incorrect understanding of the legal concept of “incitement” as it is used in U.S. law, the standard on which this part of the resolution was based.

Inciting imminent violence occurs when an individual calls upon others to commit acts of violence against a targeted individual or group of individuals (in the case of this resolution because of their religion or belief), with a deliberate intent for that call to lead to violence against those very individuals. Thus the perpetrator of “incitement to imminent violence” is the initiator of a violent act against a specific person or group of persons; NOT, as the author suggests, someone who engages in protected speech only to be threatened or harmed by those who find that speech offensive.

This misunderstanding of the legal concept of “incitement” is the cause of the author’s concerns; not the language of the resolution.

For example, the author states:

“If drawing a caricature of the Prophet incites violence by Islamic radicals to the tune of riots, arson, and murder, all sanctioned by the OIC itself – then drawing such a caricature will now constitute a criminal act.”

Incorrect.

The author also suggests that making a joke in a comedy sketch, or burning a Koran, or the work of Salman Rushdie or Theo van Gogh may also be considered “incitement to imminent violence” as per this resolution. This too is a misinterpretation of “incitement to imminent violence.” It is the threats of violence or actual acts of violence against the cartoonists, the comedian, the pastor, the writer, or filmmaker that are criminal acts in these scenarios, not the speech in question. The resolution does not change that.

Finally and most boldly, according to this same logic, the author claims that terrorist attacks against the United States could now be justified on the grounds that the U.S. government “incited” such imminent violence. Once again, this is a dangerous misinterpretation of the provisions of the resolution. On the contrary, it is well established in international law that those who harm civilians in terrorist attacks are committing criminal acts and must be brought to justice. The resolution in no way calls this principle into question.

Human Rights First supported Resolution 16/18 on the grounds that it does not undermine free speech through unnecessary criminalization (as resolutions that sought to criminalize “defamation of religions” did for so long). But we have also maintained that hateful or offensive speech must be challenged and debated. There are ample ways to do this that are well within the bounds of healthy societal debate and that don’t undermine fundamental rights to free expression. We have issued our own set of recommendations; the resolution itself reflects some of these recommendations, encouraging governments to undertake measures to train government officials to address religious tensions, to raise awareness of the impact of negative stereotyping of persons, to promote interfaith and intercultural dialogue, to foster religious freedom and to speak out against intolerance (among other recommendations). These have been among the strategies in the United States’ own long battle with intolerance, religious and otherwise.

Of course, Human Rights First is the first to admit that there is a wide gap between the principles agreed upon in this resolution and the reality on the ground. First of all, no other country has the same high standard for free expression as the United States (and as reflected in the resolution). Many governments regularly violate rights to freedom of expression. Some governments continue to regularly abuse blasphemy laws, at the great expense of freedom of religion and expression.

In December 2011, the United States government invited a number of government representatives, from both Western and non-Western states, to Washington D.C. to discuss the implementation of Resolution 16/18. This process (known as the Istanbul Process) is new, yet in our view promising, and Human Rights First will continue to encourage US engagement as long as we believe the process remains true to its goal, that is, to combat religious intolerance without undermining free speech.


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Posted in Blog | 3 Comments »

  • Abigail

    I am flattered that you have read my piece and that you chose to take the time to respond. I am, however, disappointed to see that you have apparently deliberately twisted my words and misrepresented them in your response. What I specifically said, and continue to believe, is that the interpretation of “incitement to violence” that will now be taken by the OIC countries can now be stretched to include such things as caricatures and jokes, and that these countries can and will expect the West to take action in the face of so-called “insults to the prophet.” We have now given them the opportunity to claim that the US, for instance, is in violation of a UN resolution, even when it is not, and to take punitive action on that basis. This is unacceptable.

    However, far worse, as I noted in my column, is the fact that America went to the table to discuss anything at all regarding free speech and ways in which we can mollify the OIC on the subject. We were wrong to do that. To the contrary, we should be demanding more from them.

    • http://www.humanrightsfirst.org/about-us/staff/paul-legendre/ Paul LeGendre

      Thank you, Abigail for responding to our blog.

      You raise points regarding 1) the language and interpretation of the resolution and 2) engagement between the U.S. and the OIC.

      First, regarding the language and interpretation of the resolution. I think we are in agreement that “defamation of religions” should under no circumstances be criminalized. Human Rights First fought back for many years against efforts by the OIC to do just that. Resolution 16/18 is a new resolution with a new approach to combating religious intolerance that makes no reference to “defamation of religions.” I believe it is not helpful to suggest, as your article does, that this resolution provides cover to efforts to criminalize “defamation of religions.”

      I agree that criminalizing “defamation of religions” would open a Pandora’s Box in which there would be little limit as to what speech could be criminalized. But one cannot say the same thing about “incitement to imminent violence” – the only speech-related act that the resolution recommends criminalizing. While “incitement” in general does have broader interpretations (more below), the reference in this resolution to “incitement to imminent violence” is in line with constitutional protections in the U.S. and we believe that there are no legitimate grounds for any government to argue that this language permits the criminalization of acts that defame religions or are considered to be blasphemous.

      To get a sense for the threshold for “incitement to imminent violence,” it is worth referencing deliberations around incitement in the United States. The First Amendment of the U.S Constitution prohibits government from regulating the content of speech, subject to a few notable exceptions. The standard used is the “imminent lawless action test” which was established by the Supreme Court in 1969 (Brandenburg v. Ohio). Under this test, speech is not protected by the First Amendment if the speaker intends to incite violence that is both “imminent and likely.” If speech falls short of those conditions, it is protected by the First Amendment. This is important because the U.S. negotiated the U.N. resolution with a view to fully respecting the very high free speech standards of the U.S. Constitution.

      By raising the threshold in this way, Resolution 16/18 went beyond Article 20 norms on “incitement to discrimination, hostility, or violence.” (The United States of course has a reservation to Article 20 and accepts those obligations of prohibiting speech only to the extent that is permitted by the US Constitution.) Even so, there have recently been far fewer attempts than in the past by OIC states or others to argue that “defamation of religions” constitutes “incitement to discrimination, hostility, or violence.” Efforts by western states and rights activists over the years to disassociate these two concepts have been yielding results.

      I accept your point that OIC states and others may walk away from this process with a different interpretation of ”incitement to imminent violence,” despite the fairly clear way in which we believe it should be understood. This will of course require push back from the United States, other Western states, free speech advocates, and others who don’t wish for this resolution to be undermined by such misinterpretation. This is of course to say nothing of the fact that national laws in nearly every country in the world allow for the criminalization of speech that falls short of the very high threshold of “incitement to imminent violence.” Discussions in the context of Resolution 16/18 is only one of many multi- and bi-lateral venues in which the U.S. must challenge abusive national practices in which freedom of speech and religion is denied.

      Regarding engagement between the U.S. and OIC states. You write that the U.S. has gone “to the table to discuss anything at all regarding free speech and ways in which we can mollify the O.I.C. on the subject.” I respectfully disagree. Discussions and negotiations produced a consensus resolution that abandoned “defamation of religions” – a concept that had polarized U.N. discussions on combating intolerance for a decade – and that included only one limitation on speech – “incitement to imminent violence” – which as explained above, is in line with U.S. constitutional standards. This is hardly mollification, in my view.

      It is of course possible that, in the course of discussing implementation of this resolution, certain states may retain the view that punitive action should be taken against blasphemous acts. The U.S. and others have a responsibility to quickly dispel any notion that this resolution in any way provides cover for such actions. As I mentioned in my earlier response, we support the involvement of the U.S. in discussions on the implementation of Resolution 16/18 as long as it remains true to its goals: to discuss strategies for combating religious intolerance that don’t involve the criminalization of speech.

  • Dajjal

    Words only transmit information accurately when the speaker and listener share a common dictionary. That is not the case between Islam and Western Civilization.

    The Islamic & United Nations definition of incitement was demonstrated by Secretary General Ban Ki Moon’s condemnation of the Geert Wilders documentary: Fitna.