Regulating “Hate Speech” Part II –the Yogyakarta Agenda Advances at the Expense of Fundamental Freedoms at UN Conference in Chile

Posted on | November 30, 2011 by Piero A. Tozzi, J.D. |

In a previous posting I called attention to red flags over free speech raised at the first Expert Workshop on the Prohibition of Incitement to Hatred, sponsored by the United Nations High Commissioner for Human Rights.

Indeed, the entire project, ostensibly intended to aid the Human Rights Committee as it drafts a “General Comment” outlining what it deems should be the limits of free expression as contained in Article 19 of the International Covenant on Civil and Political Rights (ICCPR), is flawed ab initio, because its starting point rewrites the language found in a negotiated human rights treaty and is premised upon protections for free expression lower than what the ICCPR provides.

(For an in-depth analysis of the projects shortcomings and flawed premises, see the submission to the Office of the High Commissioner made by the Alliance Defense Fund and several kindred organizations, available here.)

There has now been a second workshop, in Santiago de Chile, which should further trouble free speech advocates, defenders of the natural family and public morality, as well as those concerned with unaccountable transnationalist actors fabricating new soft law norms that they would impose upon sovereign states without their consent. The conference marks another attempt to push the “Yogyakarta Agenda” that would elevate “sexual orientation and gender identity” as a rights category at the expense of fundamental rights such as free expression and religious liberty.

Whereas the first workshop in Vienna limited itself to a discussion of “advocacy of national, racial or religious hatred” – categories actually enumerated in Article 20 of the ICCPR – almost the entire lineup of participants at last month’s Santiago confab presumed that the category of “sexual orientation” has been imported into the ICCPR.

Such presumptiveness is breathtaking in its audacity, since efforts to include the vague class of “sexual orientation” in a UN treaty have been repeatedly rebuffed by member states. Libertarian and religious freedom advocates have noted that broad bans on so-called “hate speech” based on “sexual orientation” have stifled legitimate criticism of homosexual behavior, particularly in the United Kingdom, Sweden and Canada, amounting to a serious erosion of fundamental freedom in the West which a generation ago had been taken for granted.

An ADF representative who attended the Santiago conference chronicled the following:

• Moderator Roberto Bertoni set the stage in his opening remarks by saying that a new development in the region that required our attention was “discrimination on account of sexual orientation.”
• Frank La Rue, UN Special Rapporteur on Freedom of Expression, agreed that “sexual orientation” should be included in the discussion.
• Heiner Bielfeldt, the UN Special Rapporteur on Freedom of Religion and Belief, asserted, apparently without explanation, that it is a “misunderstanding” to consider the enumerated categories in ICCPR Article 20 – national, racial and religious – as “exhaustive.” Rather, the categories must be expanded to include “sexual orientation and gender identity.”
• Santiago Canton, Executive Secretary of the Inter-American Commission on Human Rights (IACHR), implicitly equated “sexual orientation” with race and ethnic discrimination.
• Ricardo Lombado, the head of the Ethics Committee of the Panamanian National Journalism Council, touted his Committee’s efforts at curbing commentary critical of homosexuality.
• Tad Stahnke of Human Rights First appeared to suggest that the issue of non-discrimination based on “sexual orientation” was understood to be a given.

The cheerleading by religion rapporteur Bielfeldt in favor of giving “hate speech” protection to a novel rights category is particularly troubling, given the chronicle of abuses directed at censoring legitimate religious and other speech critical of homosexual behavior in jurisdictions where “sexual orientation” non-discrimination has been elevated to a right. These include:

• Criminal prosecution of Pentecostal pastor Åke Green by the government of Sweden for a homily Pastor Green gave on St. Paul’s epistle to the Romans and other biblical texts. One can read for oneself Pastor Green’s homily and make up one’s own mind as to whether it constituted advocacy of hatred such as to incite violence or was motivated by love for the wayward caught up in the bondage of sin.
• The arrest of Dale McAlpine, a street preacher from the United Kingdom. After McAlpine finished preaching a sermon that did not mention homosexuality, a Police Community Support Officer warned him that if he made “homophobic” comments, he could be arrested. McAlpine replied that he is not “homophobic,” but that he sometimes preaches that homosexual behavior is sinful based on biblical norms. The Police Community Support Officer then summoned several other police officers, informed Mr. McAlpine that it was against the law to describe homosexual conduct as sinful, and had Mr. McAlpine arrested and detained for nearly eight hours before charging him with using “threatening, abusive or insulting” words that were likely “to cause harassment, alarm or distress.” Bail was conditioned upon his agreement not to preach until his matter had been adjudicated; though McAlpine was ultimately vindicated, a point had been made.
• The “hate speech” proceedings against a Canadian pastor, Stephen Boissoin, based on a letter he wrote to the editor of a large Canadian newspaper critical of the “homosexual agenda,” in which he wrote of the need to “defend the precious sanctity of our innocent children and youth.” Two weeks later, a newspaper reported an alleged assault upon a person who self-identified as a homosexual. That man linked what allegedly occurred to him to Rev. Boissoin’s letter, which he said encouraged “people to go out and stop the gay rights movement.” A third party then filed a complaint with the Alberta Human Rights Panel, stating that the letter “exposed people to hatred and contempt and that it fostered an atmosphere of violence.” Despite the introduction of no evidence that any assault had occurred let alone any evidence of causation, the Panel found Rev. Boissoin guilty of the Alberta’s Human Rights, Citizenship and Multiculturalism Act, which prohibits publication of any statement “likely to expose a person or a class of persons to hatred or contempt because of the…sexual orientation of that person or class of persons.” Rev. Boissoin was fined and ordered to cease any further expressing of his opinions on homosexual behavior publicly. Though a higher court overturned the ruling, the case has been appealed yet further.

Even in the United States, where free speech protections are more robust, Chai Feldblum, President Barack Obama’s appointee to the Equal Employment Opportunity Commission and a self-described lesbian, has stated that: “There can be a conflict between religious liberty and sexual liberty, but in almost all cases the sexual liberty should win because that’s the only way that the dignity of gay people can be affirmed in any realistic manner. I’m having a hard time coming up with any case in which religious liberty should win.” Statements such as this can have, at the very least, what First Amendment attorneys call a “chilling” effect on free expression.

Query then why the special rapporteur for religion and belief would be advancing a position that not only goes beyond the scope of his mandate, but also is inimicable to the mandate he holds…

Moreover, Bielfeldt’s assertion that categories found in the ICCPR must be expanded to include the vague terms “sexual orientation and gender identity” goes to the heart of the problem with “norm making” by unelected an unaccountable “experts” – such conceits are inherently undemocratic and without rule-of-law legitimacy. Who ordained these special rapporteurs and “experts” with the power to remake treaties and add terms by their own ipse dixit?

To his credit, Frank La Rue, the special rapporteur on freedom of expression, supported the protection of freedom of expression as a right which facilitates the exercise of other rights, and which therefore must be liberally construed. He also noted the need to treat articles 19 and 20 as a unity, and that any prohibitions on freedom of expression must have a function of preventing a violation of other rights. Any such prohibitions must be defined clearly in the law, when they are absolutely necessary for the protection of these rights. While it may be difficult to determine such limits, the prohibitions “may not be an excuse for the State to limit freedom of expression, nor convert them into a form of prior censorship.”

However, after saying that, he cited as an example the attempt by the State of Chile to ban the blasphemous movie the “Last Temptation of Christ” over a decade ago. That he and others are still flogging that old horse is worrisome, as it shows that even sincere civil libertarians still lack the imagination to go beyond the shibboleths imposed by straightjacket liberalism – the emerging danger is not from those whom he described as “fundamentalist churches,” but rather from the Commissars of Political Correctness.

La Rue also noted that invoking the punitive power of the State should only be a “last resort” – later, he says that the risk must be “perceptible, tangible and immediate” before action is warranted – and the State should rather create a culture of peace through education and prevention.

But as La Rue then followed this by calling for inclusion of sexual orientation in the discussion, query what education policy that sought to implement this would look like. Rather than simply teaching the Golden Rule – a very laudable thing – “anti-bullying” programs have become a vehicle for homosexual indoctrination. Moreover, curricula aimed at mainstreaming “sexual orientation” have seriously eroded parental rights and the notion that children are not “mere creatures of the state.”

The remarks of IACHR Executive Director Canton were significant, given his role within the Inter-American system. While he began by stating that the Inter-American Court has always defended freedom of expression, he then injected ambiguity, implying that the Court is moving toward restricting dissent based on racial or sexual orientation animus.

While Canton conceded that there have been very few cases involving “hatred” and less involving “incitement to violence” before the Court, he contended that there are a number of cases involving “discrimination” based on race, gender, ethnicity and “sexual orientation.” He cited the case In re Atala an extremely problematic example of transnationalist activisim by the IACHR currently before the Inter-American Court with the potential to undermine the integrity of the Inter-American system – as an example of “denial of custody based on a lesbian sexual status.”

This causes one to wonder whether an increasingly “progressive” IACHR will abandon its traditional defense of free speech in order to lobby for “hate speech” restrictions of the type so destructive of liberty in places such as the United Kingdom. Indeed, an amicus brief submitted to the Inter-American Court in the Atala case by Christian Legal Centre (UK), Christian Legal Fellowship (Canada) and Advocates Oceania pointed out the erosion of speech protections in the United Kingdom, Canada and Australia once “sexual orientation” provisions have taken root, though Canton gave no indication that he was aware of this.

Ricardo Lombano, the President of the Ethics Committee of the Panamanian National Journalism Council stated that his committee has banned the use of derogatory terms based on race, religion and “sexual orientation.”

He then went on to discuss a case where a complaint was made to his Ethics Committee concerning discriminatory comments based sexual orientation, which he described as “repeated incitement to repudiate homosexuality by means of written communication.” He said that the case was resolved by the offended party withdrawing the complaint after reaching an agreement with the media outlet.

Ominously, he related that this has raised the idea that the Committee should be given preventive powers on this point, so as to prohibit discriminatory utterances, though this was never resolved. That a press “watchdog” would take such a position is unsettling, to say the least.

The biggest advocate of censorship and curbing freedom of expression as a general matter not specific to “sexual orientation” was Guatemala’s Jose Francisco Cali Tzay. Cali Tzay, an advocate for indigenous people, has served on the UN Committee on the Elimination of Racial Discrimination and as a human rights official from the Guatemalan Ministry of Foreign Affairs. Though Cali Tzay focused on indigenous people, he stated categorically that “speech that offends the dignity of individuals or groups should be limited.” On this he clashed repeatedly with Toby Mendel of the Centre for Law and Democracy in Canada who, along with La Rue, appeared most protective of free expression.

In a concluding remark, Bielefeldt noted that enthusiasm for free speech appears to have migrated to the conservative side of the political spectrum, while the political Left is “more sensitive to certain expressions.” As understated and half-hearted as that observation may be, it does show a grudging awareness that today those who defend tradition usually are the advocates of freedom, while reactionary illiberalism now resides with the Latex Left.

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Turtle Bay and Beyond is a blog covering international law, policy and institutions. Our experts - at the UN, European Institutions, and elsewhere - explore an authentic understanding of international law, sovereignty, and the dignity of the human person. We expose those who would seek to impose a radical social vision that is contrary to these principles.

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