31. U.S. submission to UNHCR on combating defamation of religions (July 2007)
SUBJECT: United States Government Response to Request from the United Nations Office of the High Commissioner for Human Rights for Contributions to a Report on Combating Defamation of Religions
For Delivery to the Anti-Discrimination Unit
We believe an approach such as “defamation of religions” entails a slippery slope, and endangers the very freedom of expression that international human rights treaties are designed to protect and that is essential in a democratic society.
The most obvious and important purpose of U.S. Constitutional protections on free speech is to prevent the government from restricting expression "because of its message, its ideas, its subject matter, or its content." In other words, to be permissible, any regulation on speech and other forms of expression must generally be content neutral. Thus, the right to engage in propaganda of war is as protected as the right to advocate pacifism. The advocacy of hatred is as protected as the advocacy of fellowship.
Of course, the United States abhors all forms of hateful expression. But in our view, because such forms of expression tend to lack merit, they tend to collapse under their own weight. In other words, they are unlikely to survive or thrive in a marketplace of ideas. In the words of Justice Oliver Wendell Holmes, “The best test of truth is the power of the thought to get it accepted in the competition of the market.” — not, in other words, by criminalizing the expression of ideas, however offensive they may be.
Query 1: Actions at local and national level, undertaken by the State to prohibit discrimination based on religion and faith.
Query 2: Legal and Constitutional guarantees, national policies, aimed at protecting against discrimination based on religion and faith, acts of hatred and violence, xenophobia and related intolerance, intimidation and coercion resulting from defamation of religions.
Response to Queries 1 and 2:
a. The First Amendment of the U.S. Constitution guarantees the right to freedom of religion. It prohibits the federal government from making any law that establishes a national religion (Establishment Clause) or prohibits free exercise of religion (Free Exercise Clause). The Free Exercise Clause as interpreted includes the right to freedom of belief and worship, and the freedom to not believe in any faith.
b. The First Amendment also prohibits the federal legislature from making laws that infringe on freedom of speech, freedom of the press, the right to assemble peacefully, and to petition the government.
c. The 14th Amendment extends these protections against encroachment by state as well as federal officers.
d. Additionally, many state constitutions have Bills of Rights which guarantee freedom of religion at the state level.
e. The Religious Freedom Restoration Act, passed by Congress in 1993, aims to prevent laws which substantially burden a person’s free exercise of religion.
f. The freedom of speech clause protects individual expression relating to views on religion, even if these views may be perceived by some as negative, insulting, or offensive. Freedom of speech is one of the fundamental freedoms in the country, and the United States rejects the concept of “defamation of religion.”
1. Human rights law vests rights in individuals, not in groups, ideologies, or beliefs, including religions.
2. “Defamation” carries a particular legal meaning and application in the United States and indeed elsewhere which makes the term wholly unsuitable in the context of “religions” as a term of use in multilateral fora. Because one defense to a charge of defamation is the truth, and merely issuing an opinion about something cannot be verified one way or another as true, this term is simply not appropriate.
3. The United States has voted against every United Nations resolution on Defamation of Religion since the inception of this notion in Pakistan’s 1999 “Defamation of Islam” resolution, which was altered to a “Defamation of Religions” resolution. The United States does not believe it should be illegal to express an opinion on a particular religion, including those which are highly critical. These resolutions carve out a special status for Islam, above concerns for other religions, and infringe on basic freedom of speech rights, such as the right to state opinions, publish books and articles, and freely express views in other ways which may be critical of religions. The U.S. Constitution would not permit any international agreement or treaty purporting to prohibit unpopular opinions and viewpoints to have legal effect in the United States.
4. The United States does not outlaw statements or expressions such as Holocaust denial, and allows groups that are considered racist, xenophobic or otherwise intolerant to congregate peacefully. Of course any acts of violence are not protected under the U.S. Constitution and may be criminally punished. It is peaceful worship, belief, and speech that are afforded the widest protections under the U.S. Constitution.
5. The United States believes that the issues of concern for Muslims described in the UN Defamation of Religions resolutions in toto are better dealt with under the auspices of the International Covenant for Civil and Political Rights (ICCPR) and the International Convention on the Elimination of All Forms of Discrimination Based on Race (ICERD), rather than in this new sui generis and deeply-flawed concept of “defamation of religions.”
6. The United States is deeply concerned with the use of the concept of “defamation of religions” to justify torture, imprisonment, abuse, and even issue execution orders against individuals and religious groups who do not subscribe to a particular “state” religion, or who wish to convert to another religion according to their conscience. The defamation of religions concept has also been promulgated into national legal systems in order to halt any public comment or dissent against political figures, and is now being promoted at the international level to promote and justify blasphemy laws in some countries. The United States believes that the employment of this concept jeopardizes freedom of religion, expression, assembly, association, and press.
g. The United States has significant legislation in place which prohibits discrimination based on religion in several contexts. The Civil Rights Act of 1964 has many protections against discrimination. Title II outlaws discrimination in places of public accommodation and amusement, including hotels, motels, restaurants, and theaters. Title III prohibits state and municipal governments from denying access to public facilities on the grounds of race, religion or ethnicity. Title IV prohibits discrimination on the basis of race, religion, or ethnicity by public schools, colleges, and universities. Title VII prohibits discrimination in the employment context based on race, color, religion, sex or national origin. Public and private employers, with certain exceptions including the federal government and small private businesses, may not discriminate based on the above categories. Executive Order 11246, as amended, prohibits most federal contractors and subcontractors and federally assisted contractors and subcontractors from discriminating in employment decisions on the basis of “race, color, sex, religion or national origin.” The Fair Housing Act, 42 U.S.C. §3601, prohibits discrimination based on “race, color, religion, sex, national origin, handicap, and familial status” in activities relating to the sale, rental, financing, and advertising of housing. These laws are vigorously enforced. The Religious Land Use and Institutionalized Persons Act of 2000 protects the religious rights of persons in institutions such as prisons or mental institutions, and protects houses of worship and religious schools from abuses by local zoning authorities.
h. Additionally, hate crime laws establish prohibitions on actions which are motivated by hatred towards individuals of a particular social group. Crimes against individuals because they are of a particular religion are outlawed as hate crimes as well as common crimes.
i. The U.S. Supreme Court has ruled on numerous cases upholding the free exercise of religion. As just one example, the Court ruled that unemployment compensation may not be denied to a beneficiary who is unwilling to accept employment that would require working on his or her Sabbath (Sherbert v. Verner). The beneficiary’s beliefs need not be based on the tenets of an established religious sect, if his or her belief is a sincere religious one (Frazee v. Illinois Department of Employment).
j. The separation of church and state has, in part, been preserved by the judicial doctrine that when there is a dispute within a religious order or organization, courts will not inquire into religious doctrine, but will defer to the decision-making body recognized by the church and give effect to whatever decision is officially and properly made.
k. These broad statutory and constitutional protections are implemented in practice. Criminal investigations and prosecutions can be initiated against any person exercising the authority of any local, state or federal government who violates the civil rights of individuals, including freedom of religion. Investigations and prosecutions can be undertaken at the federal level, state level, or sometimes both.
l. The Civil Rights Division (CRD) of the U.S. Department of Justice has primary authority over prosecutions for violations of federal criminal civil rights laws. The CRD welcomes complaints from members of the public, which are reviewed to determine whether the facts warrant a criminal investigation. If an investigation develops sufficient evidence to prove a case beyond a reasonable doubt, a federal prosecution can be brought.
m. In February 2007, the U.S. Attorney General launched an initiative to increase enforcement of federal laws protecting against religious discrimination and religious hate crimes. He also released a report detailing the Department of Justice's successes in these areas in the past six years. The report is available at the initiative's website, www.FirstFreedom.gov, which also describes the various facets of the initiative.
n. Where there are allegations of constitutional violations pervading an institution or department, private citizens can file a class action lawsuit using federal civil rights statutes, including 42 U.S.C. §1983.
Query 3: Measures adopted to prohibit the dissemination of racist and xenophobic ideas and material aimed at any religion or its followers that constitute incitement to discrimination, hostility, or violence.
Query 4: Measures adopted to ensure that physical attacks and assaults on businesses, cultural centres and places of worship of all religions as well as targeting of religious symbols are offences punishable by law.
Responses to Queries 3 and 4:
a. In accordance with the 1st and 14th Amendments to the U.S. Constitution which protect freedom of speech, the United States may not criminalize racist and xenophobic ideas, expressed either in conversation or in published materials. The concept of free speech is very important in the U.S. and protects individuals with diverse ideas, including prejudicial ones. The Constitution provides broad protection for speech that may be considered objectionable by most of society. Courts have carved out narrow categories, such as libel, obscenity, fighting words and threats of injury, in which an individual’s statements may not be protected by the First Amendment. See Chaplinsky v. New Hampshire, 315 U.S. 569, 572 (1942); New York Times v. Sullivan, 376 U.S. 254, 270 (1964).
b. Accordingly, the United States has made reservations, understandings, and declarations to certain provisions in international treaties that prohibit the dissemination of racist ideas or otherwise restrict freedom of expression. For example, when the United States ratified the ICCPR and ICERD, it attached reservations, understandings, and declarations concerning provisions insofar as they are inconsistent with the U.S. Constitution. These cover, inter alia, ICCPR Article 20(2), which requires Parties to “prohibit advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence,” and ICERD Article 4, which condemns propaganda and organizations which promote racial hatred or discrimination, and requires parties to punish dissemination of “ideas based on racial superiority.”
c. U.S. law does allow for suppression of or legal sanctions against harmful conduct motivated by racism and other forms of social intolerance. Racist conduct that incites violence or itself inflicts injury has been characterized as outside of First Amendment protections, and is therefore punishable. Under the U.S. Constitution, hateful speech can be criminalized only if it is intended to incite “imminent lawless action” (Brandenburg v. Ohio). Some courts/states require for a conviction of incitement to violence, that the person must not only have made speech which advocates unlawful action, but that the circumstances must indicate that there was some likelihood that the unlawful action would actually occur.
d. Hate crimes in the U.S. exist at both the federal and state levels. Laws vary from state to state, but 45 states and the District of Columbia have statutes criminalizing various types of hate crimes – examples include laws prohibiting assault, murder or other violent crimes perpetrated against a person because of one’s race, color, religion, sex and other categories. Thirty-one (31) states allow a civil cause of action for hate crimes, in addition to a criminal penalty.
e. Many states’ laws allow hate crimes - crimes motivated by hate due to religion and other factors - to have more severe punishments than the comparable crime not stirred by such motivations, and this is constitutionally permissible. The U.S. Supreme Court considers punishing prejudice as a motive for conduct that is already criminal to be different than punishment for abstract beliefs, which would not be constitutional.
f. The federal law goes even further. The Hate Crime Sentencing Enhancement Act of 1994 requires the U.S. Sentencing Commission to increase penalties for crimes committed on the basis of actual or perceived race, color, religion, national origin, ethnicity, and other factors. This act only applies to federal crimes.
g. 18 U.S.C. Sec. 245, also known as the 1969 law (federal) permits federal prosecution of an individual who “by force or threat of force willfully injures, intimidates or interferes with…any person because of his race, color, religion or national origin and because he is or has been” attempting to engage in one of six types of federally protected activities, including voting or going to school. To date, this law has been upheld in the courts.
h. Laws which prohibit racist conduct which stops short of clearly inciting violence or inflicting injury are fairly likely to be held unconstitutional. In a seminal Supreme Court case, (R.A.V. v. City of St. Paul, Minnesota, 505 U.S. 377 (1992)), the Court held that a city hate speech ordinance (which made it a misdemeanor [minor crime] to place on public or private property a symbol, graffiti, object or other expression which reasonably arouses anger or resentment in others on the basis of religion and other factors) was unconstitutional.
i. Laws are in place to ensure that any destruction of another’s property is an offense punishable by law. These laws will generally suffice to punish those who physically attack and assault businesses, cultural center and places of worship.
j. Under the Hate Crimes Sentencing Enhancement Act, if the destruction of a building was motivated by religious hatred, the sentence for the crime would increase.
k. Targeting of religious symbols accompanied by violence or destruction of property is similarly punishable.
Query 5: Action undertaken to ensure that counter-terrorism measures do not incite acts of violence, xenophobia or related intolerance and discrimination against Islam or any other religion.
Response to Query 5:
a. The United States takes action to ensure that counter-terrorism measures do not incite acts of violence, xenophobia or related intolerance and discrimination against Islam or any other religion.
b. Terrorism cannot and should not be associated or identified with any specific religion, nationality, civilization or ethnic group. That said, the United States goes to great lengths to respect the religious freedom of accused and convicted terrorists. One example of this is the Joint Task Force, the military personnel responsible for providing security for detainees at Guantanamo Bay, Cuba. It is both the policy and conduct of the Task Force to respect detainees’ religious practices and beliefs. Officials maintain a program which educates service members about Muslim beliefs, provides cultural competency training, and ensures that they incorporate religious practices into on-site life. The Joint Task Force makes every effort to provide detainees with religious articles, accommodate prayers, and provide special meals, subject to any dietary requirements. A loudspeaker at the camp signals a Muslim call to prayer five times a day – after each signal, detainees get 20 minutes of uninterrupted time to practice their faith. Strict measures are in place to ensure appropriate treatment of the Koran, and every detainee is issued a personal copy.
Query 6: Action undertaken to ensue that the print, audio-visual and electronic media, including the Internet, and any other means do not incite acts of violence, xenophobia or related intolerance and discrimination against Islam or any other religion.
Response to Query 6:
a. The free speech guarantee of the First Amendment has been interpreted by the U.S. Supreme Court to extend to speech advocating illegal conduct, and regulation of such speech is permissible only in narrow circumstances: "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation, except where such advocacy is directed to inciting or producing imminent lawless actions and is likely to incite or produce that action" (Brandenburg v. Ohio). Notwithstanding the First Amendment limitations on the regulation of speech, speech that is tantamount to conduct – or that is simply the means of effecting conduct – may itself be legitimately proscribed, punished, or regulated incidentally to the constitutional enforcement of generally applicable statutes.
b. A number of U.S. statutes criminalize speech-related conduct in certain circumstances, including general laws criminalizing the solicitation to commit acts of violence, conspiracy, and aiding and abetting. More specific laws forbid such acts as seditious conspiracy; advocating the overthrow of the government; conspiring within the jurisdiction of the United States to kill, kidnap, or maim any individual outside the United States or in a foreign country with which the United States is at peace; mailing material that incites murder, assassination, or arson; and providing material support to designated terrorist organizations or in support of terrorist acts.
c. The U.S. material support laws are broad-based charging statutes that provide an important vehicle for prosecuting terrorists' recruitment, training, and fundraising efforts, which is sometimes conducted by terrorists online. Material support may include actions such as providing funding, training, expert advice or assistance, personnel, or providing communications equipment (which could include ISPs and other web services, among other things). The material support provisions, however, either require proof that the defendant knew or intended that the support was to be used in the preparing or carrying out of a terrorist activity, or proof that the defendant knowingly provided material support to a designated foreign terrorist organization, regardless of whether the defendant knew that the support would be used for a terrorist activity. Additionally, U.S. law also prohibits certain financial transactions with certain designated foreign states or individuals.
Response to Query 7:
a. All public officials are subject to the US laws concerning freedom of religion and belief and discrimination laid out in the aforementioned discussion above.
b. Freedom of religion and proscription of discrimination based on religion form the foundation of United States society. The Pilgrims came to the United States in order to set up a society based on this “first freedom” of the human soul. The U.S. education system teaches freedom of religion and all other freedoms guaranteed in the Constitution, and all public officials take an oath to uphold the Constitution.
c. Mandating “respect” for any particular religion or belief, outside of prohibitions on violence, destruction of property, intimidations or threats, etc., would violate the First Amendment of the U.S. Constitution.
d. The Department of Justice has investigated a number of cases involving discrimination against or harassment of Muslim children in public schools. For example, the Department brought an action against a school district that barred a Muslim girl from wearing a hijab to school, resulting in a consent decree that will protect the rights of students to wear religious garb. Similarly, the Department obtained a settlement in a case in which another girl was harassed by a teacher and students because she was Muslim.
Query 8: Measures adopted to ensure equal access to education for all, in law and in practice, including access to free primary education for all children, both girls and boys, and access for adults to lifelong learning and education based on respect for human rights, diversity and tolerance, without discrimination of any kind.
Response to Query 8:
a. Under the U.S. federal system, education is primarily a state and local function, subject to constitutional and statutory constraints. All children in primary and secondary grades residing in the United States are required by law to attend school, and states are required to offer schooling in the language that the child can understand until the child can learn English.
b. The Equal Protection Clause, contained in the Fourteenth Amendment of the Constitution, provides that '[n]o State shall deny to any person within its jurisdiction the equal protection of the laws." The Equal Protection Clause has been interpreted to bar public schools and universities from discrimination on the grounds of race, sex, religion, or national origin.
c. Under Title IV of the Civil Rights Act of 1964, the U.S. Department of Justice may bring suit against a school board that deprives children of equal protection of the laws, or against a public university that denies admission to any person on the grounds of "race, color, religion, sex or national origin." The Department of Justice continues to enforce court-issued consent decrees against local school boards that had engaged in racial segregation in the past in cases that may date back 40 years. The Department of Justice also investigates and brings new cases of education discrimination.
d. The U.S. Department of Education administers a number of programs to help ensure that all students, including minorities and women, have access to elementary and secondary education programs, and opportunities to pursue higher education.
Query 9: Measures undertaken to promote tolerance and respect for all religions and their value systems.
Response to Query 9:
a. The U.S. government in its dialogue broadly promotes religious tolerance and respect for all religions.
b. As indicated above, the U.S. generally does not criminalize private citizens’ intolerance of other religions. However, several laws are in place to prevent religious discrimination in institutional settings such as schools, public accommodations and employment.
Query 10: Actions aimed at supporting and promoting a global dialogue for a culture of peace and tolerance based on respect for human rights and religious diversity.
Response to Query 10:
a. The United States takes many actions aimed at promoting a global dialogue based on respect for human rights and religious diversity. The President of the United States meets with various religious leaders to promote religious freedom and diversity. Recently, he attended the opening of a new mosque, and noted how in the U.S. a mosque will be on the same street as a synagogue, a Catholic church, a Presbyterian parish and a Buddhist temple. He frequently makes comments noting the importance of religious freedom, diversity and tolerance.
b. The United States supports the United Nations’ efforts to promote a culture of peace, tolerance and religious diversity through dialogue and global frameworks such as the “Global Agenda for Dialogue among Civilizations” and its Programme of Action adopted by the UN General Assembly and initiated by the UNESCO; the UN Global Counterterrorism Strategy; and the “Alliance of Civilizations” established by the UN Secretary General.c. The United States also supports these goals bilaterally, in regional and multilateral fora, such as the OSCE and OAS.
d. The U.S. President recently established the position of Special Envoy to the Organization of the Islamic Conference, in order to foster better relationships with the Muslim world.
e. The U.S. Department of State has an office, the Office of International Religious Freedom (DRL/IRF), devoted entirely to promoting religious freedom around the world. The office monitors religious discrimination and persecution worldwide, and recommends and implements policies to promote religious freedom. The office also meets with world religious leaders and engages them in promoting religious diversity and tolerance. Finally, DRL/IRF writes annual religious freedom reports which document the status of religious freedom across the globe. The State Department of course also has offices which promote human rights more generally.
f. The United States has been invited to participate in a high-level ministerial meeting in early October 2007 in New York on Inter-Religious and Inter-Cultural Cooperation.
g. The United States regularly contributes to discussions on resolutions under the agenda item “Culture of Peace” in the UN General Assembly.
h. The Human Rights Democracy Fund, part of the Democracy, Human Rights and Labor (DRL) Bureau at the Department of State, creates and organizes programs which seek to promote human rights and democracy around the world. For example, HRDF plans to start a project which is designed to promote a balanced and moderate media to counteract biased reporting which exacerbates hatred and conflict. The project will train journalists across the Middle East/Gulf region to conduct accurate reporting that will encourage peace, enhance tolerance, defuse conflict and aid reconciliation. Starting in 2002, HRDF particularly directed its efforts toward the Muslim world, Central Asia and China.