Alana’s right that the White House’s effort to encourage YouTube to take the video down is a “dangerous precedent.” It’s also Sisyphean. YouTube is just the best known video hosting site: if they take the video down, it will show up elsewhere. Or for a nominal fee, its creators — or anyone else — could serve it from their own website. The whole approach is not only dangerous; it’s ridiculous. As the U.S. movie and music industries have found out, it’s impossible to win a war against the Internet if your only weapon is take-down notices.
The White House’s effort to play on YouTube’s terms of service could only have arisen in the context of an Administration that desperately wanted the video to go away, but recognized that mounting a legal challenge to it was a public opinion loser. I’d love to have been in the room when some bright young staffer said, “We can’t tell them to take it down. We can’t even ask. But what if we ask if it violates their terms of service?” I wonder if anyone in Silicon Valley is rethinking their support for Obama 2012 now.
But the White House’s effort to persuade YouTube to censor itself has a larger significance. Prof. Anthea Butler’s “Sam Bacile deserves arrest” op-ed in USA Today last week is already notorious. (From the balanced world of academia, where tenure is a license to pontificate and deadlines are overrated, I look forward to the publication of Prof. Butler’s The Gospel According to Sarah: How Sarah Palin and the Tea Party are Galvanizing the Religious Right, forthcoming — according to UPenn — from The New Press in Spring 2012.) But over on the Volokh Conspiracy, Eugene Volokh points out that it’s not just professors of religious studies who are eager to start arresting people and banning speech.
On Opinio Juris, Prof. Peter Spiro of Temple, a leading scholar of international law, is making the argument that we need to get with the program and recognize that Europe is right: hate speech can and should be banned. True, in the U.S., that tiresome First Amendment would seem to prevent this, but Prof. Spiro, like Harold Koh, now the legal adviser to the State Department, has an answer: treaties — and, more broadly, recognition of an “international consensus” — will (and should) be used to create “an international norm against hate speech [that would] supply a basis for prohibiting it, the First Amendment notwithstanding. . . Deploying international law as an interpretive tool reflects a defensive strategy, . . . [that] may mask what is, in fact, a partial displacement of constitutional hegemony.”
The problem with the White House’s efforts is not just that they are wrong in principle and feeble in practice. It’s not just that it has handed all the agenda-defining power to Islamist radicals, and refused to recognize that the video is an act of political judo against the U.S., and a pretext for violence, not its cause, in the Middle East. It’s not even just that it plays into the Organization of the Islamic Conference’s seemingly lost campaign for U.N. action against the “defamation of religion,” which the Obama administration rightly opposed.
The problem is that Prof. Spiro has generously spelled out the progressive game plan: use the international consensus, and the occasional foreign outrage, against the U.S.’s exceptional tradition of free speech (and other forms of U.S. exceptionalism, such as Second Amendment rights) to persuade U.S. authorities to define and use legal means to restrict those rights. And that is exactly what the White House is trying to do.
