Terrorism and Other Dangerous Online Content: Exporting the First Amendment? – Just Security

Posted: March 31, 2021 at 3:38 am

The United States has an historic opportunity to work with democracies around the world to address dangerous online content, including white supremacist terrorism. In 2019, a lone wolf live-streamed via Facebook his massacre of 51 people at two mosques in Christchurch, New Zealand. In direct response, dozens of the worlds leading democracies joined with major social media companies to issue a call to action. The Trump administration, however, did not join them, vaguely referring to First Amendment concerns to explain its absence.

With the coming anniversary of the Christchurch Call to Action (May 15) and the Summit of Democracy, its high time to reconsider the U.S. posture. Whatever the merits or demerits of any multilateral effort to address dangerous online content, one purported basis for the U.S. failure to join such initiatives cannot withstand scrutiny. Thats the claim that the United States has a policy of refraining from supporting international agreements that would call on other countries to act inconsistently with the First Amendment.

One of us served as the State Departments most senior human rights official and the other has served on the State Departments advisory committee on international law during Democratic and Republican administrations. Based on our experience and assessment of U.S. practices, we question any assertion of such a general or consistent U.S. approach toward international agreements.

Indeed, some of the main cases cited to show such a policy, on further scrutiny, demonstrate the opposite: The United States takes a pragmatic approach often issuing statements that stress that its own commitment to an agreement do not run afoul of the First Amendment (and asserting carve outs for U.S. domestic purposes). At the same time, it supports the adoption of international agreements by other countries who apply these treaties in accord with international human rights standards. In bilateral human rights dialogues with countries like China, Vietnam, Myanmar and Uzbekistan, U.S diplomats have routinely urged ratification of international human rights treaties without referring to its own reservation relating to free speech. In these and other diplomatic exchanges, U.S diplomats constantly rely on this international framework, rather than the U.S. Constitution and laws. It makes good practical sense to do so.

Were it otherwise, the United States efforts to advance human rights around the world would be stymied and seen as simply trying to impose its own constitutional standards on other governments including in political contexts where an absolutist First Amendment approach could wreak havoc or far worse.

Consider how the United States approached the main human rights treatythe International Covenant on Civil and Political Rights. That treaty requires any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law. In submitting the treaty to the Senate for ratification, the George Herbert Walker Bush administration acknowledged that this provision directly conflicts with the First Amendment by requiring the prohibition of certain forms of speech and expression. The solution was simple. The United States ratified the agreement but entered a reservation opting out of that provision for itself, that is, to the extent the obligations were inconsistent with the First Amendment. (The reservation read: Article 20 does not authorize or require legislation or other action by the United States that would restrict the right of free speech and association protected by the Constitution and laws of the United States.)

What about the treaty as it applied to other States? That would be up to them to decide. The United States would go on to promote the treaty as a global agreement, including urging other States to ratify the Covenant, and proceed to support the treatys supervisory body. The latter is a committee of 18 independent experts, including a member nominated by the United States from 1995 until 2018 and again in 2020. The Human Rights Committee monitors the application of the Covenant (including Article 20) for States that have committed to comply with it.

The same pattern holds true for other treaties. The Convention on the Elimination of Racial Discrimination, for example, requires States to criminalize all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin (Article 4). In proposing ratification of the treaty, the Clinton administration acknowledged to the Senate, The requirements of Article 4 of the Convention are thus inconsistent with the First Amendment. During the drafting of Article 4, the U.S. delegation expressly recognized that it posed First Amendment difficulties. The solution, once again, was to join the agreement but enter a simultaneous reservation to ensure that parts of that provision did not apply to the U.S. governments own actions. As with the Covenant on Civil and Political Rights, the United States went on to support the treaty on racial discrimination, including joining multilateral calls for other States to ratify the instrument. The treaty also has a supervisory committee, which long included a U.S. member, and it too monitors all States compliance with their own obligations under the agreement including Article 4.

This sort of pragmatic approach by U.S. delegations toward multilateral efforts dates back to the Universal Declaration of Human Rights itself. Consider the incitement provision of the Universal Declaration. Article 7 states that all people are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination. During the drafting process, the head of the U.S. delegation, Eleanor Roosevelt, opposed this text. The diplomatic record states: Speaking as United States representative, she supported deletion of the words against any incitement to discrimination, The United States opposed the provision against incitement to discrimination because it feared that such a provision might be used to justify the enactment of repressive measures, laws that would curtail freedom of speech and the press. However, the United States ultimately acceded to the provision in its final form, and has ever since been a leading backer of the Universal Declaration as a whole.

Finally, we should note the United States has also supported international efforts to counter online support for Islamic terrorism, despite turning away from the Christchurch Call to Action following the terrorist attack on Muslims in 2019. In 2015, the Security Council Counterterrorism Committee, in which the United States serves as a leading member, adopted the Madrid Guiding Principles. In addressing foreign terrorist fighters, Principle 26 states:

Member States should build and strengthen public-private partnerships, in particular with social media service providers, while respecting international obligations and commitments regarding human rights, including freedom of expression, and recalling that any restrictions thereon shall only be such as are provided by law and are necessary on the grounds set out in paragraph 3 of article 19 of the International Covenant on Civil and Political Rights. In this regard, Member States should encourage the ICT industry to voluntarily develop terms of service that target content aimed at recruitment for terrorism and recruiting or inciting others to commit terrorist acts, while respecting international obligations and commitments regarding human rights.

In 2018, the Security Council Committee adopted an Addendum to the Madrid Guiding Principles for foreign terrorist fighters, in which principle 39 provides:

In undertaking efforts to effectively counter the ways that ISIL, Al-Qaida and associated individuals, groups, undertakings and entities use their narratives to incite and recruit others to commit terrorist acts, Member States should:(g) Consider continuing, building on or fostering new strategic and voluntary partnerships with many different actors, such as private sector actors, in particular social media and other communications service providers, including for the purposes of blocking, filtering or removing terrorist content, and civil society actors who can play an important role in developing and implementing more effective means to counter the use of the Internet for terrorist purposes, to counter terrorist narratives and to develop innovative technological solutions;

(h) Encourage information and communications technology service providers to voluntarily develop and enforce terms of service that target content aimed at recruitment for terrorism and recruiting or inciting others to commit terrorist acts, while respecting international human rights law, and publish regular transparency report.

There are other cases in which the United States has invoked the freedom of speech as a basis for its withdrawal from or non-participation in multilateral meetings (e.g., the 2009 Durban review conference against racism) or to advance a negotiated diplomatic outcome (e.g., 2011 Human Rights Council Resolution 16/18 on combating religious intolerance). These assertions need to be understood in their political contexts. The Durban Review Conference became embroiled in a larger political debate about Israel, and several other countries also withdrew based on concerns that the review conference would repeat the anti-Semitic attacks that took place at the 2001 Durban Conference. The United Nations Human Rights Council debate about combatting religious intolerance focused an overbroad proposal from Pakistan and others aimed at declaring any negative commentary on Islam examples of religious intolerancesuch as through national blasphemy laws . That said, there are other examples that may support the claim that First Amendment concerns have more directly precluded U.S. participation in an international initiative (e.g., 2020 UN General Assembly Resolution on Combating Glorification of Nazism). Yet thats also consistent with our general point. There is no settled, uniform, or required U.S. approach to these multilateral initiatives. The United States has adopted a pragmatic approach rather than asserted its First Amendment is a necessary model for the world.

When the Biden administration convenes its Summit of Democracy, many of the participating States will be the same ones that supported the Christchurch Call to Action. It is these venues in which the United States can work with fellow democratic countries and tech companies to address the most dangerous online content. Our First Amendment is no cause for completely holding back.

Editors Note: Readers may also be interested in Christchurch Calls and Washington Isnt Answering by Eric Rosand and Why the Christchurch Call to Remove Online Terror Content Triggers Free Speech Concerns by Evelyn Aswad.

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Terrorism and Other Dangerous Online Content: Exporting the First Amendment? - Just Security

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