1-10-2012By 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.”
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.