United States Government Response to the United Nations Office of the High Commissioner for Human Rights concerning Combating Defamation of Religions
General Introduction
We are writing in response to your letter dated April 25, 2008 referring to General Assembly resolution 62/154, entitled “Combating Defamation of Religions,” which requests the Secretary General to submit a report on the implementation of the resolution. Resolution 62/154 was adopted by a splintered vote of 108 (in favor), 51 (against), and 25 abstentions.
The divisions in the international community about the concept of “defamation of religions” are more than an academic or theoretical debate. There have been numerous reports that this concept is being used in some member states to justify torture, imprisonment, and other forms of abuse. There are also examples of governments issuing execution orders against individuals and religious groups who do not subscribe to a particular “State” religion, who wish to convert to another religion according to their conscience, or who are merely exercising their right to freedom of expression and opinion or assembly.
The United States therefore believes that the concept of “defamation of religions” is not supported by international law and that efforts to combat “defamation of religions” typically result in restrictions on the freedoms of thought, conscience, religion, and expression. While appearing in name to promote tolerance, implementation of this concept actually fosters intolerance and has served to justify restrictions on human rights and fundamental freedoms such as the freedoms of religion and expression for all persons, including those who may or may not belong to a particular faith. Accordingly, the United States considers this concept to be inherently flawed.
At the same time, the Unites States reiterates that it does not support statements intended to insult religious traditions and works to promote a climate of tolerance, respect, and understanding. The Unites States condemns discrimination based on such grounds as race, ethnicity, religion or gender and supports international efforts to combat such discrimination. The United States understands that religion is a central organizing principle for many societies. We sympathize with those who seek to promote tolerance and take a strong stand against offensive speech. Restricting the rights of individuals, however, is not the way to achieve this goal.
Legal Problems with the Concept of Defamation of Religions
From a legal perspective, the “defamation of religions” concept is deeply problematic. Under existing human rights law, individuals – not religions, ideologies, or beliefs – are the holders of human rights and are protected by the law. However, the concept of “defamation of religions” seeks to convey the idea that a religion itself can be a subject of protection under human rights law, thereby potentially undermining protections for individuals.
In addition, “defamation” carries a particular legal meaning and application in domestic systems that makes the term wholly unsuitable in the context of “religions.” A defamatory statement (or other communication) is more than just an offensive one. It is also a statement that is false. Because one defense to a charge of defamation is that the statement is in fact true, the concept does not properly apply to that which cannot be verified as either true or false, such as statements of belief or opinion. Even offensive opinions and beliefs are not defamatory.
It is also unclear how “defamation” could be defined considering that one individual’s sincere belief that his or her creed alone is the truth inevitably conflicts with another’s sincerely held view of the truth. Even between adherents of the same religion there are divergent views that some might find offensive or “defamatory.” How could an international framework or entity properly adjudicate such deeply held individual beliefs as “defamatory” to another belief?
Even if a defamation standard were to be legally enforceable, and even if it could be enforced in an equitable manner, it would lead to numerous legal claims and counterclaims between majority and minority religious communities or dissenting members of a faith. Instead of fostering tolerance, such a standard would almost certainly lead to greater conflict and intolerance. What is considered to be a sacred statement by one may be viewed as sacrilegious to another, and could therefore be legally actionable as a “defamation of religion”.
Examples of Abuse of Defamation Laws
When the “defamation of religions” concept has been promulgated or invoked in national legal systems, the resulting anti-defamation provisions have often been abused and used against minority religious communities or dissident members of the majority faith. These legal provisions have also been used to deter and/or punish public comment or dissent against political figures.
Here are a few examples of when defamation-related laws have been abused by governments and used to restrict human rights:
• In January 2008, a provincial court sentenced a student to death for distributing “blasphemous” material regarding the role of women in Islamic societies. The student was arrested in October 2007 for downloading the material from the internet and passing it to students at the university he attended. The case is on appeal.
• In December 2007, a court reportedly sentenced two foreigners to six months in prison for allegedly marketing a book deemed offensive to Aisha, one of Prophet Mohammed’s wives.
• In November 2007, a court sentenced a British teacher to 15 days in jail for “insulting religion,” after she named a class teddy bear Mohammed. A 7-year-old student named Mohammed had reportedly requested that the bear be named after him. The teacher was pardoned and deported the following month.
• In February 2007, a court sentenced an internet blogger to three years in prison for his comments that critiqued of the practice of Islam. He remains in prison.
• In January 2007, a court gave two writers a three-year suspended sentence and fined them $8,000 for “defaming Islam” in a magazine article. Publication of the magazine was also suspended for two months.
• In January 2007, authorities arrested a Christian on charges of blasphemy for allegedly making derogatory remarks about the Qur’an. She was held until May and released on bail.
The United States has also observed that some Member States promoting the “defamation of religions” concept do not appear to be speaking out against and condemning intolerant statements made in their own countries about minority faiths or seeking to change policies and laws that favor or promote one religion over another. Domestic political leadership is critical to promoting a culture of religious tolerance and respect. Governmental representatives and elected leaders must be willing to object openly to instances of religious intolerance against any faith, whether majority or minority, and to promote laws and policies that respect freedom of religion, expression, and assembly.
The U.S. Domestic Approach
The United States is home to individuals from a vast array of religious and cultural traditions – from those practiced by the over 560 federally recognized indigenous tribes to those traditions that immigrants have brought from around the world. We believe that promoting freedom of expression, religion, and assembly are the cornerstones that have allowed such diversity — as well as respect for such diversity — to flourish in the United States.
The First Amendment to 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. 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 the right to petition the government.
Democracy depends upon a knowledgeable citizenry whose access to uncensored ideas, opinions, and information enables it to participate as fully as possible in public life. For this reason, although freedom of expression that threatens the public good is not absolute, prohibitions are restricted to forms of expression that threaten the public good by, for example, inciting imminent violence or other unlawful activity; expression is not restricted merely for being offensive. This view was summarized well by Thomas Jefferson, third United States President and eminent political philosopher, who stated, “(w)e have nothing to fear from the demoralizing reasonings of some, if others are left free to demonstrate their errors and especially when the law stands ready to punish the first criminal acts produced by the false reasonings….”
We believe it is not a useful function for governments to judge the offensiveness of speech and imprison or punish their citizens for such offensive speech. We adhere to the philosophy that freedom of expression helps to protect “a marketplace of ideas.” Government should not prohibit or punish speech, even offensive or hateful speech, because of an underlying confidence that in a free society such hateful ideas will fail on account of their own intrinsic lack of merit.
The United States agrees that more must be done to promote inter-religious understanding and believes concrete action supporting tolerance and individual rights is the best way to combat abusive actions and hateful ideologies. The United States takes many actions aimed at promoting a global dialogue based on respect for human rights and religious diversity. The Fifth, Thirteenth, Fourteenth, and Fifteenth Amendments to the U.S. Constitution guarantee that no public authority may engage in any act or practice of racial discrimination against persons, groups of persons, or institutions. These prohibitions apply with equal force at the federal, state, and local levels, and all public authorities and institutions must comply.
The Civil Rights Division of the U.S. Department of Justice enforces several criminal statutes that prohibit acts of violence or intimidation motivated by racial, ethnic, or religious hatred and directed against participation in certain activities, including 18 U.S.C. 247(c) which prohibits damage to religious property. Also, 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.
Entities that promote tolerance and understanding also exist in federal, state, and local governments. Within the federal government, for example, the Department of Justice Community Relations Service (CRS) provides conflict resolution services, which include mediation, technical assistance, and training throughout the United States to assist communities in avoiding racial and ethnic conflict. Organizations promoting tolerance are also active at state and local levels.
Working alongside the United States Government are other non-governmental organizations which focus on addressing racial and ethnic bias and promoting understanding and tolerance, which works at combating hate crimes and promoting inter-group cooperation and understanding.
The U.S. International Approach
At the international level, the U.S. Department of State focuses on promoting the rights to freedom of religion, expression, and assembly through its Bureau of Democracy, Human Rights and Labor. In addition to the annual Country Reports on Human Rights, which also addresses these rights, the Bureau’s Office of International Religious Freedom is devoted entirely to promoting religious freedom around the world for all faiths, including Islam. The Office monitors religious discrimination and persecution worldwide, and recommends and implements policies to promote religious freedom. The Office also meets with religious leaders and engages them in promoting religious diversity and tolerance. Finally, the Office writes annual religious freedom reports which document the status of religious freedom across the globe.
As part of our diplomacy and assistance efforts around the world, the United States advocates and seeks to create the conditions for religious freedom, freedom of expression, and political participation because we believe those are the rights of all people. The United States Government will continue to sponsor educational programs at all levels in partnership with countries across the world.
Alongside our own international efforts, the United States participates in the UN’s 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 UNESCO, and the UN Global Counterterrorism Strategy. The United States participated in a high-level ministerial meeting in early October 2007 in New York on Inter-Religious and Inter-Cultural Cooperation.
The United States also supports these goals bilaterally, in regional and multilateral fora such as the OSCE, the AU, and the OAS. The President of the United States recently appointed Ambassador Sada Cumber as the Special Envoy to the Organization of the Islamic Conference, in order to promote mutual understanding between the United States and Muslim communities around the world and to build forward-looking partnerships to advance common purposes.
For a description of relevant U.S. law, we have attached the 2007 United States Government Response to the United Nations Office of the High Commissioner for Human Rights concerning Combating Defamation of Religions.