Human Rights Committee on freedom of speech

The Human Rights Committee, which interprets and enforces the International Covenant on Civil & Political Rights, has circulated a new draft General Comment (slated to be number 34), which will replace General Comment No. 10, which dates from 1983, on freedom of opinion and expression. (General comments are authoritative interpretations of human rights treaties by treaty bodies). Given events in the Middle East and North Africa, as well as the WikiLeaks controversy, this study could not be more timely.
The draft Comment makes the following key points:
► Reservations to Article 19(1) ("Everyone shall have the right to hold opinions without interference") would be incompatible with the object and purpose of the Covenant. In this regard, the Committee also notes that even though Article 4 does not list the Article 19 rights of opinion and expression as non-derogable, it would never be necessary to derogate from such rights, even in a time of national emergency. The Committee has taken a similar approach to the right to seek judicial redress, which is deemed essential to enjoying the Covenant's expressly non-derogable rights even though it is not listed in Article 4 as non-derogable. The Committee did not offer its specific views, however, on how the omnibus non-discrimination clause in Article 2 should be reconciled with the non-derogation clause in Article 4, which does not list "political opinion" as a ground on which derogations are prohibited. Nor does it help with understanding the difference between freedom of thought contained in Article 18(1), which is expressly non-derogable per Article 4 and not subject to clawback by Article 19(3), and freedom of opinion contained in Article 19(1).
► In keeping with general principles of state responsibility, the Committee notes that a state may be in breach of the Covenant in a situation in which any branch of the federal or sub-federal government fails to respect freedoms of opinion and expression. This may also be the case with respect to "semi-state entities," although the Committee does not employ the term "non-state actor." It only notes that states parties are also obliged to ensure that all persons are protected from private action that might impair the enjoyment of freedoms of opinion and expression. Since the landmark Velásquez Rodríguez v. Honduras, case before the Inter-American Court of Human Rights, treaty references to the obligation of states to "ensure" rights have served as a hook to ascribe state responsibility for private action where states are not diligent in protecting individuals from violations by private parties (see prior posts here, here and here). It is not clear if this formulation is meant to be less far-reaching than standard attribution theories of state responsibility.
► It is a breach of the Covenant to criminalize the holding of an opinion. Here, the Committee cites its Views in the case of Faurisson v. France involving France's Holocaust denial legislation (a.k.a. "contestation de crimes contre l'humanité"). (See prior post here). In that case the Committee found no breach of the Covenant where a conviction under this legislation

did not encroach upon his right to hold and express an opinion in general, rather the court convicted Mr. Faurisson for having violated the rights and reputation of others.

The Committee concluded that any restriction on the petitioner's freedom of expression was permissible under Article 19(3), which states that

The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others...

The Committee determined that the law was "necessary" to advance the struggle against racism and anti-semitism. Article 19(3)'s clawback clause lays down conditions under which restrictions to the right to expression and to seek information may be imposed:

• the restrictions must be "provided by law";
• they may only be imposed for one of the enumerated purposes [to respect the rights or reputations of others, national security, ordre public, and public health or morals]; and
• they must be justified as being "necessary" for that State party for one of those purposes.

► The Committee lists a number of forms of expression that are guaranteed by the Covenant, including

political discourse,

commentary on public affairs,

canvassing,

discussion of human rights,

journalism,

cultural and artistic expression,

teaching, and

religious discourse.

"Commercial advertising" remains bracketed in this list, suggesting a lack of consensus on this point.

► The Committee notes that the Covenant expressly provides that

persons belonging to ethnic, religious or linguistic minorities shall not be denied the right, in community with other members of their group, to use their own language.

► Apropos of WikiLeaks, the Committee noted the requirement that states parties allow for a free press and other media "to comment on public issues without censorship or restraint and to inform public opinion" and the corollary right of the public to receive such information. With no specific reference to WikiLeaks, the Committee again invokes Article 19(3) and notes that

It is not compatible with paragraph 3, for instance, to invoke treason laws to prosecute journalists, researchers, environmental activists, human rights defenders, or others, for having disseminated information of legitimate public interest.

The Committee reminds states parties that

Any restrictions on the operation of websites, blogs or any other internet-based, electronic or other such information dissemination system, including systems to support such communication, such as internet service providers or search engines, must be compatible with paragraph 3.

► Given the global controversy over the access to information about reproductive rights (including information about how to protect oneself from sexually-transmitted diseases), it would be useful for the Committee to cross-reference General Comment No. 14 issued in 2000 by the Committee of the International Covenant on Economic, Social and Cultural Rights, which monitors the sister treaty to the ICCPR. There, the IECESC Committee identified the accessibility of information to be fundamental to the right to the highest attainable standard of health as set forth in Article 12 of the ICESCR. In this regard, the Committee observed that:

Information ... accessibility includes the right to seek, receive and impart information and ideas concerning health issues. However, accessibility of information should not impair the right to have personal health data treated with confidentiality.

► The Human Rights Committee particularly noted the high value associated with free expression concerning public figures and institutions and called into question laws addressed to defamation of the head of state or regime. The draft Comment does not specifically condemn criminal defamation laws, but it does note that states parties should avoid "excessively punitive measures and penalties" and "consider decriminalisation of defamation." (See prior post here).
► The Committee warns against monopolistic control of the media "that may be harmful to a diversity of sources and views."
► The Committee notes the risk to freedom of speech rights posed by many counter-terrorism measures and in particular laws aimed at prohibiting the “encouragement of terrorism” and “extremist activity” or the "praising" of terrorist acts. The Committee is silent, however, on material support legislation, e.g., 18 U.S.C. § 2339A in force in the U.S. This legislation criminalizes the provision of "material support or resources" to terrorists, which includes "training" and "expert advice or assistance."
► With regard to hate speech legislation, the Committee determines that many forms of hate speech do not rise to the level of "advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence" which must be prohibited by law according to Article 20 of the Covenant, which also calls for prohibitions on propaganda for war.
The Human Rights Interest Group of the American Society of International Law made detailed suggestions on the draft General Comment, which are available here.

On February 1

On this day in ...
... 2006 (5 years ago today), asserting the freedom of the press was at stake, 6 newspapers in 4 European countries "reprinted controversial cartoons of the prophet Muhammad which have provoked outrage, trade boycotts and threats of violence towards Danes." The 12 cartoons had been published in several months earlier in "a right-of-centre Danish broadsheet." The controversy has resurfaced at times since; for example, in 2009, when Danish Prime Minister Anders Fogh Rasmussen was selected as NATO Secretary-General, and just last month, when trial began involving an alleged plot to attack the cartoonist.

(Prior February 1 posts are here, here, and here.)

On January 24

On this day in ...
... 1857, the Sixth Correctional Chamber in Paris summoned Gustave Flaubert, his publisher, and his printer to stand trial on a charge of an "outrage á la morale publique et réligieuse et aux bonnes mœurs /affront to decent comportement and religious morality" for having produced Madame Bovary, a work of fiction about the adulterous wife of a physician. An acquittal would follow.

(Prior January 24 posts are here, here, and here.)

Help Save Academic Freedom

Dear colleagues and readers,
It has come to my attention, as it may have to other readers of the European Journal of International Law, that Joseph Weiler (left), professor of law at NYU with too many titles and directorships to mention, is facing criminal prosecution in France for libel due to his refusal to remove from his website a book review that the book's author claims is not only unfavorable, but libelous. In his editorial "Book Reviewing and Academic Freedom" (in EJIL), which raises important issues concerning the system of scholarly book reviewing, Weiler seeks the support of scholars in various disciplines, particularly those with experience in editing scholarly journals that publish book reviews. Trial is scheduled for June 25, 2010.

On June 21

On this day in ...
... 1953 (55 years ago today), Benazir Bhutto was born in Karachi, Pakistan. Bhutto (left) would twice serve as her country's Prime Minister. Last December, an assassin's bullet ended her 3d bid for that position. Prior IntLawGrrls posts here.
... 1973 (35 years ago today), reviewing a conviction for unsolicited mailing of sexually explicit materials, the U.S. Supreme Court decided Miller v. California. By a vote of 5-4, it held that the 1st Amendment to the Constitution does not protect "obscenity"; that is, material that, in the view of jurors: (1) would be seen, "as a whole," by "the average person, applying contemporary community standards," to "appea[l] to the prurient interest"; (2) "depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law"; and (3) "taken as a whole, lacks serious literary, artistic, political, or scientific value."

Alice Paul and the National Woman's Party: Direct Action in Time of War

Thanks to IntLawGrrls for giving me the opportunity, by means of this guest post, to call attention to the work of Alice Paul and the National Woman’s Party.

The story of the National Woman's Party and its 1917 picketing campaign on behalf of woman suffrage is almost unknown in legal circles. Yet the suffrage pickets were among the earliest victims of the suppression of dissent that accompanied the entry of the United States into World War I. Nearly forty years before the modern civil rights movement brought the concept of nonviolent civil disobedience to the forefront of American political discourse, the NWP conducted a direct action campaign at the very doorstep of the President of the United States, Woodrow Wilson. And they did so during a time of war.
In the course of this campaign, Paul and her supporters learned to use the apparatus of the municipal courts and the prison system to focus attention on the powerlessness of women, while at the same time elevating their very real suffering to a kind of suffrage martyrdom. Their principal goal was to keep pressure on government officials so that the cause of woman suffrage would not be swept away in the wartime hysteria that gripped the nation in 1917. As the police regularly hauled them off to jail, however, the suffragists began to realize that their ability to pursue that goal hinged largely on the recognition of a constitutional right to free speech.
The working paper I've just posted at SSRN, "We are at War and You Should Not Bother the President": The Suffrage Pickets and Freedom of Speech During World War I, represents the first step in recovering this forgotten story. (This is only a small portion of a much larger work-in -progress on the militant suffrage campaign). In this paper, I present, for the first time, a detailed narrative account of the legal battles of the suffrage pickets of 1917, beginning with the first round of arrests in late June, and concluding with their victory in the District of Columbia Court of Appeals in March 1918. Although the women themselves did not directly shape legal doctrine, the saga of the suffrage pickets provides an excellent vehicle for examining the emergence of free speech consciousness during 1917.
Bringing the story of the suffrage pickets to the attention of legal scholars may cause a significant reevaluation of the traditional narrative of First Amendment history. (photo credit for 1917 NWP suffrage picket of White House)