The U.N. issued an “early warning” Wednesday for the United States, urging that the government take immediate action to confront white supremacy following the violence in Charlottesville, Virginia.
But the warning and call for the U.S. government to act contained a little-noticed last paragraph, urging the U.S. to make sure that the “rights to freedom of expression, association and peaceful assembly” are not exercised to deny rights or freedom to others and pressing the U.S. government to “ensure that such rights are not misused to promote racist hate speech and racist crimes.”
But as many legal scholars have noted, there is no hate-speech exception to the First Amendment; that is, the government cannot limit a person’s speech because it is considered hateful towards any person or group.
The Supreme Court issued a ruling on this as recently as June.
The idea that the government can restrict speech expressing ideas that offend “strikes at the heart of the First Amendment,” Supreme Court Justice Samuel Alito wrote in Matal v. Tam on behalf of four justices. “Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.'”
In the same case, Justice Anthony Kennedy wrote a separate decision for the other half of the court, agreeing on the issue of hate speech.
“A law found to discriminate based on viewpoint is an ‘egregious form of content discrimination,’ which is ‘presumptively unconstitutional,'” he wrote. “A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.”
The United Nations does not quite agree.
The U.N. Committee on the Elimination of Racial Discrimination issued its “early warning” and call to action for the U.S. from its meeting in Geneva, Switzerland, referring to the “horrific” events in Charlottesville on Aug. 11 and 12, and specifically citing the killing of Heather Heyer and the alleged beating of Deandre Harris by white supremacists.
“We are alarmed by the racist demonstrations, with overtly racist slogans, chants and salutes by white nationalists, neo-Nazis, and the Ku Klux Klan, promoting white supremacy and inciting racial discrimination and hatred,” Anastasia Crickley, a native of Ireland who chairs the U.N. committee, said in a press release, going on to call for the U.S. government to “investigate thoroughly the racial discrimination targeting, in particular, people of African descent, ethnic or ethno-religious minorities, and migrants.”
The committee also called on the U.S. “to undertake concrete measures to address the root causes of the proliferation of such racist manifestations” and included this last paragraph in its warning:
“[The committee] recommends that the United States of America ensure that the rights to freedom of expression, association, and peaceful assembly are not exercised with the aim of destroying or denying the rights and freedoms of others, especially the right to equality and non-discrimination, and that the government of the United States of America provide the necessary guarantees so that such rights are not misused to promote racist hate speech and racist crimes.”
The last time the U.N. Committee on the Elimination of Racial Discrimination issued a warning to the U.S. was in 2006.
Previous warnings have mostly been issued to far-flung places ravaged by serious ethnic strife, such as Burundi — to which two “early warnings” were issued in 2016 — and Côte d’Ivoire, Iraq, and Nigeria.
The Committee on the Elimination of Racial Discrimination was set up to enforce the Convention on the Elimination of Racial Discrimination, adopted in 1965, which doesn’t actually make a distinction between race and ethnicity. And although some members of the U.N. originally wanted to include religious discrimination, Arab states managed to block this.
From the beginning, free speech has been an issue, and the United States asserted that it “does not accept any obligation under this Convention, in particular under articles 4 and 7, to restrict those [extensive protections of individual freedom of speech, expression and association contained in the Constitution and laws of the United States], through the adoption of legislation or any other measures, to the extent that they are protected by the Constitution and laws of the United States.”
Several other countries also lodged similar reservations. The committee has apparently not taken much notice, however.
For years, the committee has been criticized for its focus on pushing a left-wing agenda when it comes to a focus on the United States. In 2008, the committee called on the U.S. to stop using the death penalty, restore voting rights to felons, allow terrorists held at Guantanamo Bay to legally challenge their detention, protect “undocumented workers” in the workplace, promote multiculturalism, and prevent U.S. companies from “negatively affecting the rights of indigenous people living outside of the United States:”
“The committee’s recommendations stray into areas of American life that are far outside the committee’s mandate and supposed competence,” Steven Groves wrote in a report for The Heritage Foundation in 2008.
On free speech, Groves, who is now chief of staff to the U.S. ambassador to the United Nations, Nikki Haley, wrote that the committee has continually ignored the U.S. assertion that it can only enforce the Convention on the Elimination of Racial Discrimination so long as it does not violate the constitutional rights of Americans.
“While hate speech is a complex subject about which there is honest disagreement, the CERD Committee’s disregard of the U.S. reservation and its repeated attempts to impose its own judgment on the U.S. as to what is and is not acceptable speech is presumptuous,” he wrote. “The U.S. is an independent and sovereign nation with a long (and thoroughly litigated) legal tradition illuminating the First Amendment and demarcating the constitutional boundaries of free speech. The CERD Committee is not a democratically elected body and is accountable to no constituency, much less the American people.”
Groves went on to write that the committee, by continually urging the U.S. to trample the constitutional rights of Americans “demonstrates that it is acting outside the bounds of the treaty in clear breach of its obligations to the U.S.”