Peter Spiro at Opinio Juris has an interesting comment on Adam Liptak’s New York Times/Int’l Herald Tribune report on the hate speech vs. free speech debate, which looks especially at differences in the way the issue is perceived in the US and the way it’s treated elsewhere. According to Spiro:
Together with Jeremy Waldron’s recent New York Review of Books piece on the subject, could this be the leading edge of possible constitutional adjustment?
It would have been mostly unthinkable as recently as 15 years ago. When the US ratified the ICCPR in 1992, everyone was on board with the reservation from article 20, including all the big human rights groups. That would probably play out the same way today, under the categoric rule of Reid v. Covert that treaties can’t trump the Bill of Rights.
But of course there’s a back door to the same result, which is through judicial interpretation. There are the obvious recent precedents for using international law sources in constitutional interpretation, although all in the name of expanding rather than restricting rights. But there’s also a line of less obvious cases (think consular courts, extradition, and foreign claims settlement) under which the courts have shifted rights sub rosa to conform with international realities. Especially to the extent the hate speech prohibition hardens at the international level, I wonder how long the US will be able to go it alone on this.
Actually, it would have been unthinkable slightly more recently than that (to split temporal hairs), for entirely different reasons of foreign policy: it would have removed one more excuse for non-intervention in Rwanda during the 1994 genocide. No joke. I’ll explain.
Last week I wrote up a short note on a great law article that assessed neutrality in cyberwar. I didn’t get into the details, except to suggest that it was the first effort I’d read that bridged cyber issues and radio broadcasting. The conceptual leap(back) allowed for references to work by Jamie Metzl, who once wrote an outstanding analysis of the international law of radio jamming and the Rwandan genocide of 1994. The crux of Metzl’s work was U.S. non-intervention in the Rwandan genocide, which has been dealt with extensively elsewhere, notably by my second-favorite brainy redhead, Samantha Power.
The narrower issue, and the piece most relevant to contemporary problems of internet-linked radicalization and terrorism, is the way radio featured so prominently in the preparation, mobilization, and direction of collective violence during the genocide. Radio absent an internet connection is scarcely given a nod these days, an almost retrograde technology. For a brief moment in time in the 1990s, though, it was the information medium in circumstances of materially unclear lines of command, control, and communcation (see here, here, here, here, and here). Forget written orders and documents that function as smoking gun evidence of criminal intent in war crimes trials. In primarily oral societies, with high rates of illiteracy, "radio is king". There, traditional sources of evidence and channels for C3I simply don’t work the same way. Skeptical? See here for the way archived radio transcripts can be used to build just such a case.
My point: in his article, Metzl looks to the potential for jamming hate radio broadcasts, as the one kind of humanitarian intervention that could have and should have happened in the Rwanda case. It should have been an uncontroversial approach to mitigating the slaughter.
So why didn’t it happen? Metzl’s findings revealed some grossly cynical justifications for non-jamming. The one that’s germane to Liptak’s NYT article: the legal opinion that such intervention might have constituted a violation of free speech provisions… somewhere. I’m not kidding. Memory is fallible, and it’s been at least six years since I read the article, but that’s the essence of Metzl’s expose.
I can’t help but think that individual expectations of free will and self-expression at home can and will shade perceptions of others’ free speech abroad. Which, paradoxically, does little for the way latter-day terrorist-linked media and communications are handled.
So what does this tell us about how constitutionally-enshrined free speech provisions can color threat perceptions and foreign policy responses to them? Trying to reconcile the two issues feels like an exercise in policy gibberish, but there you have it.
MICHAEL A. INNES 