1. Freedom of Speech, Expression and Association
Article 4 of the Convention expressly requires States Parties to condemn all propaganda and all organizations based on ideas or theories of superiority of one race or group of persons of one color or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form. States Parties are further required to take immediate and positive measures to "eradicate all incitement to, or acts of, such discrimination," inter alia, by (a) punishing the dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, and acts of violence or incitement to acts of violence, as well as the provision of assistance to racist activities, including financing; (b) prohibiting organizations and activities which promote and incite racial discrimination, including participation in such organizations and activities; and (c) preventing public authorities or institutions, whether national or local, from promoting or inciting racial discrimination.
Article 7 imposes an undertaking on States Parties to take measures to combat prejudice and promote tolerance in the fields of teaching, education, culture and information. These provisions
reflect a widely held view that penalizing and prohibiting the dissemination of ideas based on racial superiority are central elements in the international struggle against racial discrimination. The Committee itself has given a broad interpretation to Article 4, in particular emphasizing in General Recommendations I (1972) and VII (1985) that the mandatory requirements of Article 4(a) and (b), are compatible with the rights of freedom of opinion and expression. Many other States Parties to the Convention have enacted and enforced measures to give effect to these requirements.
As a matter of national policy, the U.S. Government has long condemned racial discrimination, and it engages in many activities both to combat prejudices leading to racial discrimination and to promote tolerance, understanding and friendship among national, racial and ethnic groups. Such programs include those under the authority of Title VI of the Civil Rights Act, the Fair Housing Act, the Bilingual Education Act, the Mutual Educational and Cultural Exchange Act of 1961, the International Education Act (Title VI of the HEA of 1965), and the National Foundation on the Arts and the Humanities Act of 1965. Also, under U.S. law, federal tax money cannot be used to support private entities (such as schools) that practice racial or ethnic discrimination. Further, the Hate Crimes Statistics Act of 1990 mandates collection by the Justice Department of data on crimes motivated by, inter alia, race.
However, American citizens applaud the fact that the First Amendment to the U.S. Constitution sharply curtails the government's ability to restrict or prohibit the expression or advocacy of certain ideas, however objectionable. Under the First Amendment, opinions and speech are protected without regard to content. This is a cornerstone of American society that has as much resonance with regard to modern forms of communication like the internet as with more traditional modes of communication. Certain types of speech, intended and likely to cause imminent violence, may constitutionally be restricted, so long as the restriction is not undertaken with regard to the speech's content. For example, several federal statutes punish "hate crimes," i.e., acts of violence or intimidation motivated by racial, ethnic or religious hatred and intended to interfere with the participation of individuals in certain activities such as employment, housing, public accommodation, use of public facilities, and the free exercise of religion. See, e.g., 18 U.S.C. sec. 241, 245, 247; 42 U.S.C. sec. 3631. An increasing number of state statutes are similarly addressed to hate crimes, and while they too are constrained by constitutional protections, the U.S. Supreme Court has recently determined that bias-inspired criminal conduct may be singled out for especially severe punishment under state law. In two recent cases, the U.S. Supreme Court has addressed first amendment issues in the context of hate crimes legislation. In R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), the municipal ordinance in question made it a misdemeanor to "place on public or private property a symbol, object, appellation, characterization, or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender." The Court held that the statute unconstitutionally restricted freedom of speech on the basis of its content. Notably, the Court did not find it unconstitutional to criminalize "hate speech" per se. Instead, a majority of the Court held that a jurisdiction may not select only some kinds of hate speech to criminalize while leaving other kinds unrestricted.
Then, in Wisconsin v. Mitchell, 508 U.S. 476 (1993), the Court addressed the issue of enhanced penalties for crimes motivated by prejudice. Under the relevant state law, an individual who was convicted of aggravated assault (an offense which normally carried a penalty of 2 years imprisonment) was sentenced to an additional four years imprisonment because his crime had been racially motivated.
The Wisconsin Supreme Court had found the statute to be in violation of the First Amendment, as interpreted by the U.S. Supreme Court in R.A.V. v. City of St. Paul, because it singled out the defendant's biased thoughts and penalized him based on the content of those thoughts. On appeal, the U.S. Supreme Court reversed the judgment and upheld the statute as Constitutional. In a unanimous opinion, the Court held that while the St. Paul ordinance had (impermissibly) targeted expression, the Wisconsin enhanced-penalty statute was aimed at unprotected (indeed, criminal) conduct.
In subsequent decisions, federal and state courts have followed this distinction, generally upholding statutes which punish specific behavior motivated by bias. For example, a federal appellate court sustained the criminal prosecution under federal civil rights laws of a defendant who had burned a cross on a Black family's lawn, distinguishing that act done with intent to intimidate from similar acts meant to make a political statement. United States v. Stewart, 65 F.3d 918 (11th Cir. 1995), cert. denied sub nom. Daniel v. United States, 516 U.S. 1134. In T.B.D. v. Florida, 656 So.2d 479 (Fla. 1995), cert. denied, 516 U.S. 1145 (1996), Florida's highest court upheld a statute making it a misdemeanor to place a "a burning or flaming cross, real or simulated" on the property of another without permission.
During the drafting of Article 4, the U.S. delegation expressly noted that it posed First Amendment difficulties, and upon signing the Convention in 1966, the United States made a declaration to the effect that it would not accept any requirement thereunder to adopt legislation or take other actions incompatible with the U.S. Constitution. A number of other States Parties have conditioned their acceptance of Article 4 by reference to the need to protect the freedoms of opinion, expression, association and assembly recognized in the Universal Declaration of Human Rights.
In becoming a party to the International Covenant on Civil and Political Rights in 1992, the United States faced a similar problem with respect to Article 20 of that treaty. In part because the Human Rights Committee had adopted a similarly broad interpretation of that article in its General Comment 11 (1983), the United States entered a reservation intended to make clear that the United States cannot and will not accept obligations which are inconsistent with its own Constitutional protections for free speech, expression and association. A similar reservation was therefore adopted with respect to the current Convention. It reads:
[T]he Constitution and laws of the United States contain extensive protections of individual freedom of speech, expression and association. Accordingly, the United States does not accept any obligation under this Convention, in particular under Articles 4 and 7, to restrict those rights, through the adoption of legislation or any other measures, to the extent that they are protected by the Constitution and laws of the United States.
