'Free Speech' and the 1st Amendment Aren't Always the Same Thing

Maybe we should understand what people in other countries think before we tell them they are wrong.

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A Muslim man holds a sign in front of police during a protest against The Innocence of Muslims in Athens on Sept. 23. (AP)

"Our Constitution protects the right to practice free speech," President Obama told the United Nations General Assembly on Tuesday. "Like me, the majority of Americans are Christian, and yet we do not ban blasphemy against our most sacred beliefs."

This defense was too measured for some. My Atlantic colleague Jeffrey Goldberg argues that "[b]lasphemy is an indispensable human right . . . the essence of free speech." Obama could have explained that to the world, "but he didn't."

I'm sure others found it too robust. Stanley Fish (a beloved former prof) recently explained that Arab rioters -- indeed, one could read his essay as saying, all Arabs -- reject liberal values and regard any criticism of Islam "as a blow that is properly met by blows in return."

Americans seem curiously unaware that, in many countries, thoughtful, modern, secular-minded people don't reject free speech -- they reject the claim that it protects The Innocence of Muslims. Under the most advanced legal norms in their countries, free speech doesn't include the right to incite hatred against racial or religious groups.

American society has made choices about which kinds of speech to permit and which to forbid. Since the mid-1960s, we have protected most racial and religious hate speech, even while we reject threats against individuals, incitement to immediate violence, and "fighting words." Most of those choices, I think, are good ones. Attempts to silence hate speech may begin with good motives; but, over time, they tend to silence discussion, not to foster dialogue.

But that American view isn't the "essence" of free speech. Much of the advanced, democratic world questions it, not from ignorance but from painful experience.

Human rights as international law came into existence after World War II. The field was born in a determination that fascism and Nazism would never recur. Regimes like Hitler's maintained power through censorship, but they came to power because as political movements they observed no boundaries on decent discourse. They used mass communications to dehumanize their enemies -- Jews, socialists, non-"Aryans." By mainstreaming hate speech, they undermined and destroyed democratic governments, then justified official discrimination and finally genocide.

A mature regime of international human rights, many observers believed, would take both these dangers into account. Unchecked incitement to war and hatred might be every bit as dangerous as official censorship and repression. The international human-rights norms they forged reflect both cautions.

The Universal Declaration of Human Rights was drafted with American guidance in 1946. Article 19 proclaims that "[e]veryone has the right to freedom of opinion and expression." Article 7, however, states that every human being is "entitled to equal protection against any discrimination [on the basis of race, national origin, sex, religion, political opinion, or economic status] in violation of this Declaration and against any incitement to such discrimination." (Bear in mind that during the postwar years, "superior" American law embraced the same limits. In 1951, our Supreme Court upheld the conviction of Communist Party leaders for conspiracy to teach Communism. A year later, the same Court upheld a "group libel" statute that made it a crime to denounce entire racial groups.)

International guarantees built on these two ideas: first, that freedom of expression is a bedrock of civilization, and, second, that society must prevent it from being used to destroy freedom. The International Covenant on Civil and Political Rights, drafted in 1966, states that "[e]veryone shall have the right to freedom of expression." But in the next article, it proclaims that "[a]ny propaganda for war" and "[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law."

By this standard, protecting hate speech is not simply unusual -- it is actually unlawful. Similar limitations on free expression are contained in other important human-rights documents. Under these norms, blasphemy laws are not "the essence of free speech" -- not because foreigners live in the middle ages, but because they understand freedom differently than we do.

Ibrahim Gassama, a human rights activist and a professor of law at the University of Oregon, argues that the American response to violent outbursts like the one in Libya actually misses the chance to talk about the rule of law. "The dangerous thing is to excuse the violence," he says. Instead, people in Muslim countries might want to consider that "there's a legal case to be made for objecting -- bringing a lawsuit." Taking Innocence to court somewhere in the world would be a huge improvement over burning diplomats to death.

My point is not that the international community is right and we are wrong. It is that our national self-absorption makes it difficult for us to talk to the world about a very important issue. Smart, enlightened people can and do argue that laws against Innocence are compatible with a free society.

We can, if we choose, refute that case, and perhaps win respect. If we ignore it, however, we look not only arrogant but stupid.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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