Opinio Juris

Adam Liptak has an excellent front-page story in today's NYT situating the US approach to hate speech in the international context (as part of his series “American Exception"). Together with Jeremy Waldron’s recent New York Review of Books piece on the subject, could this be the leading edge of possible constitutional adjustment?

It would have been mostly unthinkable as recently as 15 years ago. When the US ratified the ICCPR in 1992, everyone was on board with the reservation from article 20, including all the big human rights groups. That would probably play out the same way today, under the categoric rule of Reid v. Covert that treaties can’t trump the Bill of Rights.

But of course there’s a back door to the same result, which is through judicial interpretation. There are the obvious recent precedents for using international law sources in constitutional interpretation, although all in the name of expanding rather than restricting rights. But there’s also a line of less obvious cases (think consular courts, extradition, and foreign claims settlement) under which the courts have shifted rights sub rosa to conform with international realities. Especially to the extent the hate speech prohibition hardens at the international level, I wonder how long the US will be able to go it alone on this.