"To Ban or Not to Ban Blasphemous Videos"

Evelyn M. Aswad, To Ban or Not to Ban Blasphemous Videos, 44 Georgetown Journal of International Law 1313 (2013).

This article discusses the worldwide outcry over the Innocence of Muslims video and the calls by many outside (and some inside) the United States to ban it.  Aswad's goal, specifically, is to examine the International Covenant on Civil and Political Rights (to which the U.S. is a signatory) to determine whether that document requires members to suppress material like the video.  The key provision at issue is Article 20(2) of the ICCPR, which states that "Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law."  The U.S. filed a reservation to this section when it signed the ICCPR, stating that it would not suppress material protected by the First Amendment.

To my mind, this answers the question of any legal obligation the U.S. might have at international law, but Aswad takes the analysis a step further and argues that, even without a reservation, the Convention does not require suppression.  Through a textual analysis of the provision, she argues that Article 20(2) is focussed on advocacy of religious hatred that constitutes incitement, and that "[i]t would not constitute 'advocacy' for a speaker adhering to religion X to simply criticize, question, mischaracterize or ridicule religion Y without the intent to promote hatred against members of religion Y." (p. 1319)  Thus, in order for Article 20(2) to require the suppression of the Innocence of Muslims video, Aswad concludes that evidence would have to be adduced that its maker had
the intent of promoting hatred towards Muslims.  Further, she argues that the use of the word "incitement" in Article 20(2) is rather vague, as it does not disclose the degree of proximity needed between the act in question and the result which the section hopes to prevent (p. 1319-20).

Another interesting aspect of this short paper is a summary of the drafting history of Article 20.  Aswad concludes that "the point of Article 20(2) was to prohibit expression where the speaker intended for his or her speech to cause hate in listeners who would agree with the hateful message and therefore engage in harmful acts toward the targeted group.  There is no indication in the negotiating history that Article 20 was intended to prohibit speech about a targeted group that would offend the feelings of members of that group." (p. 1322).