At Opinio Juris, my friend and former colleague Peter Spiro has an interesting post on recent events in Egypt and Libya. Peter argues that there is a foreign relations rationale for banning hate speech. In a world where obscure YouTube videos like “The Innocence of Muslims” can result in the murder of one of our ambassadors, he says, the US should consider banning such material. He notes that European countries have stricter limits on religious hate speech than we and still manage to have functioning democracies.
As I say, it’s an interesting post. Actually, though, this doesn’t seem a workable solution for the US, legally or politically. First, I don’t think Peter means “hate speech,” which typically connotes speech likely to incite violence against minorities. A ban on “hate speech” wouldn’t have applied to “The Innocence of Muslims,” which was not likely to incite violence against anyone, except perhaps the film’s producers. I think the category Peter is looking for is “offensive” speech, specifically, speech that would offend listeners’ religious sensibilities. It’s true that European countries are more comfortable than the US with banning such speech. The ECtHR has ruled that countries can ban religiously offensive speech in certain circumstances — the Otto Preminger Institute case, in which the ECtHR allowed Austria to ban local showing of a film insulting Catholicism, is perhaps the best example. But the ECtHR’s jurisprudence is based on a “human dignity” approach totally different from the American “rights” approach. American constitutional principles would have to be rethought in order to justify a ban on merely “offensive” speech.
Second, the way the world is currently constituted, everyone knows what a ban on religiously offensive speech would mean in practice. The only religiously offensive speech likely to impede American foreign relations nowadays is speech that offends Islam — or, put better, perhaps, speech that offends particular segments of Muslim opinion. One doesn’t hear about attacks on American embassies over speech that offends the sensibilities of Christians, Jews, Buddhists, or Hindus — and there’s plenty such speech on the internet. Perhaps, as Peter says, Americans should generally rethink our willingness to permit religiously offensive speech. But is American public opinion ready for a rule that, in practice, would forbid speech that offends the followers of only one religion?