On the morning of August 12, 2017, in Charlottesville, Virginia, an initially peaceful encounter between a gathering of white supremacists and counter-protestors soon turned violent, resulting in several injuries and death. In condemning President Trump’s refusal to unequivocally denounce the racist violence in Charlottesville, the United Nations Committee on Elimination of Racial Discrimination specifically cited two victims. The first, counter-protestor Heather D. Heyer, was killed when a car was intentionally driven into a crowd of counter-protestors. The second, counter-protestor Deandre Harris, was brutalized by white supremacists. The Committee invoked urgent warning procedures to call attention to the violence, stating that while the United States must protect free expression, it is also obligated to take action against hate speech that would provoke racial discrimination.
The Committee is comprised of eighteen experts tasked with ensuring that countries who are signatories to the Convention of the Elimination of All Forms of Racial Discrimination enforce the Convention. The Convention calls for signatories to designate as an illegal, punishable offense the promotion of ideas and policies based on racial supremacy. Not only has the United States been one of the signatories since the Convention’s ratification in 1994, but the United States is also represented among the Committee’s eighteen independent experts. The United States has, however, stipulated in its “Declarations and Reservations” to the Convention’s ratification that the United States’ would enforce the Convention as long as doing so does not infringe on First Amendment rights.
Though the Committee’s decisions tend to focus more often on developing countries faced with government-sanctioned prejudice, the Committee’s response to Charlottesville is not the United Nations’ first disagreement with the United States over freedom of speech. Previously, the United States boycotted a 2009 United Nations conference pursuant to the Unites States’ stance that free speech should be restricted because criticizing Israel would incite aggression. In contrast, the United Nations has now asserted in its decision responding to the events in Charlottesville that the United States is impermissibly allowing the rights to free expression and to peaceful assembly to be used to spread racist hate speech and associated crimes.
Committee Chairwoman Anastasia Crickley has questioned whether neo-Nazi and other racist hate speech should constitute freedom of expression. The fine line between free speech and incitement is constantly debated. Anthony D. Romero, Executive Director of the American Civil Liberties Union argues that there is no distinction that pushes any speech beyond constitutional protection. Romero insists that all racist hate speech must be protected so as to encourage discourse and to prevent the government from subjectively imposing punitive measures for certain speech. Contrary to the assertions of United Nations experts that the First Amendment is too often used indefensibly to justify violence, Romero denies that the First Amendment has direct bearing on racial violence.
In contrast with the United States’ juxtaposition of the First Amendment with the Convention’s disavowal of racist hate speech, the European Court of Human Rights has recognized that though the European Convention on Human Rights protects free expression, this freedom cannot be treated as absolute where human dignity is undermined. The Court has outlined in numerous cases that controversy exposing individuals or groups to a potential risk of violence and other physical damage is not a protected form of free expression.
While the European Convention on Human Rights is not binding on non-European nations such as the United States, it can be compelling for the latter. A binding authority, however, is found in Article 19 of the International Covenant on Civil and Political Rights, of which the United States is a signatory. This Article identifies two legitimate grounds for restricting freedom of expression: to protect the rights and reputations of others and to preserve national security and public welfare.
The decision of the United Nations Committee on Elimination of Racial Discrimination simply recommends that the United States implement measures to preserve the rights to equality and protection from discrimination. Considering the decisions of the European Court of Human Rights, the United States is in the minority of developed nations that balance protection of free speech with other rights. Yet, since the Charlottesville rally in August, the rhetoric of white supremacist Richard Spencer led to another smaller rally in the same town in early October, followed by an attempted homicide by white supremacists after Spencer’s speech to the University of Florida. Thus, it remains to be seen whether measures will be taken by the United States to comply with the Committee’s decision or by the United Nations to enforce compliance so that the United States adopts the principles of the European Convention on Human Rights.