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Speech that Spreads Conflict Requires New International Regulation

The ease with which an individual opinion can cause international conflict has created the need for new regulation. Freedom of speech is respected across most of the Western world, is a tenet of American civil liberties, and is protected in Article 19 of the International Covenant on Civil and Political Rights. U.S. Supreme Court decisions have upheld First Amendment protection of defamatory statements regarding government, gender, sexuality, race, and religion.

While frowned upon in the U.S., the Supreme Court has a record of allowing defamatory statements or behavior, even if they are seen as inflammatory (see Terminiello v. Chicago, National Socialist Party v. Skokie, R.A.V. v. City of St. Paul). In all three cases, the majority opinion has overturned the right of states to prohibit speech based on content, regardless of racially or religiously charged language.

Historically, provocative remarks regarding religion had far fewer opportunities to reach a wide audience. However, with the rise of the Internet, incendiary speech has the potential to spark global unrest. If such speech has the potential to endanger civilians nationally or internationally, do governments have the right to curtail it to prevent conflict?

In the middle of September 2012, the film trailer “Innocence of Muslims” denigrating the Prophet Mohammed became infamous across the Muslim world.

Allegedly produced by an Egyptian Coptic Christian in Los Angeles, the video sparked Muslim protests outside American embassies and consulates globally, beginning in Egypt on September 11. Protests grew and quickly spread to Libya, where the ensuing violence was initially blamed for the death of the American Ambassador to Libya in Benghazi and three members of the U.S. Embassy staff.

Despite the U.S. government’s attempts to distance itself from the film, protests continued for weeks outside U.S. embassies globally with deaths reported in both Yemen and Pakistan. Google at first refused to block access to the video on its YouTube; eventually the company relented in certain countries, but the trailer’s impact had already been felt.

Within the U.S., the Supreme Court established the precedent of prior restraint in Schenk v. United States – the right to limit free speech when the speech creates a “clear and present danger.” The question then becomes whether governments can enact prior restraint to prevent conflict on a global scale. Article 20 of the International Covenant on Civil and Political Rights states: “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” As the recent protests demonstrated, the incendiary video can be viewed as discriminatory language violating Article 20 and, as a consequence, deemed to create the “clear and present danger” needed to enact prior restraint. It follows that we must consider at what stage the international community should rethink regulation over freedom of speech to mitigate potential conflict.

In his speech at the 2012 opening session of the United Nations on September 25, President Barack Obama defended international freedom of speech, even in the face of violence. The next day, President of Egypt Mohammed Morsi accepted free speech but condemned that which is “used to incite hatred” against a person or religion.

The modern, globalized world must achieve a balance between allowing freedom of speech and limiting hate speech. Citizens should be able to express themselves without fear of censorship or government reprisal. This free rein, however, should not necessarily extend to individuals’ rights as they affect others. Currently, the German volksverhetzung law forbids incitement of the people, while still allowing for broader freedom of speech. This differentiation should be utilized to institute a form of prior restraint internationally to prevent conflict. Broadened into an international context, such a law would allow governments and international institutions to regulate speech that falls either under incitement of the people or clear and present danger.

Twitter has set a precedent suggesting the possibility of international use of prior restraint. In mid-October, Twitter blocked access to the page of a neo-Nazi group to users in Germany at the government’s behest. Rather than being removed entirely, the group’s Tweets were still available to users outside Germany. While the company was following its newer “country-withheld content” policy, Twitter came under fire for allowing government censorship. Its chief lawyer, Alexander McGillvray, claimed company policy was to balance freedom of speech with local laws. This is an approach that other outlets could, and should, employ in the future.

The ease with which comments, films, cartoons or articles can be viewed internationally via the Internet places more of a burden on governments. A government cannot be held accountable for the opinions of its citizens. That said, in the name of preventing international conflict, governments should either hold private companies, such as Twitter and Google’s YouTube, accountable for content within their sphere, or demonstrate a willingness to act against malicious speech.

Not every opinion in the public domain needs to be, or can be, monitored, but if national security agencies are already monitoring speech for potential national threats, they should be able to monitor for international threats as well. The violence of the protests stemming from the “Innocence of Muslims” demonstrated that speech targeting individuals, cultural groups or religions can spark international conflict. If governments are serious about ending such conflict then they must play a more active, and indeed invasive, role in holding their citizens accountable for speech that can be heard internationally.

There are many caveats to an increased use of international prior restraint. These include but are not limited to: Governments must be wary of blanket condemnation of hate speech against individuals or groups. Not all speech against religion can be seen as hate speech. They must not impinge on their citizens’ right to criticize government. Many of the conflicts stemming from international freedom of expression have occurred over speech about religion, yet a delicate balance must be maintained. Individuals must be responsible for becoming more aware of the impact of their speech and the international community must increasingly understand, as many do already, that the majority opinion is rarely blasphemous. Governments must play a role by holding individuals responsible for their stated opinions, ultimately teaching that in a globalized society, it is important to take into account others’ views and feelings.

Critically, governments must not use a call for greater international prior restraint as an overall excuse to increase censorship. Citizens should retain the right to freedom of speech as a route to criticize government. In the vast majority of cases, this basic civil liberty does not create international conflict, and should therefore be exempt from any call for prior restraint. Governments should uphold prior restraint only in cases of potentially dangerously malicious speech.

International prior restraint might be a legitimate course in the prevention of future conflict that has yet to be explored. The ease with which opinions can be transmitted today has created a need for revised legislation. By limiting malicious speech from achieving a global platform, governments may be able to reduce incidences of violence such as those of September 2012.