Via Eliana Johnson and Michael Totten, the question that Rep. Trent Franks asked Assistant Attorney General Thomas Perez in July shouldn’t be very difficult to answer — especially for the man who heads up the Civil Rights Division of the Department of Justice, and who swore to uphold the Constitution when taking that job. Yet Franks has to ask the question four different times, and Perez refuses to provide a direct answer. The question is this: “Will you tell us here today, simply, that this administration’s Department of Justice will never entertain or advance a proposal that criminalizes speech against any religion?”
If you read the First Amendment, the answer is simple. Perez, however, does a two-minute dodge while Franks asks it four times:
Why is that relevant today? Oh, no particular reason:
As recently as December 19, 2011, the U.S. voted for and was instrumental in passing “U.N. Resolution 16/18” against “religious intolerance,” “condemning the stereotyping, negative profiling and stigmatization of people based on their religion.” While this may sound innocuous, it was the latest incarnation of a highly controversial “anti-blasphemy” resolution that has been pushed by the Organization of Islamic Cooperation (OIC) at the United Nations since 1999.
The real aim of the “anti- blasphemy” resolution is not to protect religion but to clamp down on freedom of expression. Accordingly, “defamation of religion,” by the definition of the 56-member OIC, could include things such as satirizing Mohammed in a newspaper cartoon or a YouTube video, criticism of Sharia law, or security check profiling. A report by the New York–based Human Rights First listed more than 50 cases in 15 countries “where the enforcement of blasphemy laws have resulted in death sentences and long prison terms as well as arbitrary detentions, and have sparked assaults, murders, and mob attacks.”
The U.N. “anti-blasphemy” resolution has been put to the vote by the OIC in the Human Rights Councils every year since 1999 and in the General Assembly every year since 2005. It has passed every year, but it receives a dwindling number of votes. Most Western democracies have voted against, seeing it correctly as a threat to free speech.
Last December, the Obama Administration, during three days of closed negotiations at Foggy Bottom, brokered a compromise for the implementation that allowed the controversial measure to pass the U.N. General Assembly unanimously. The only country to voice concern was Poland, whose representative wondered—rightly—why the only example of interfaith dialogue mentioned in the resolution was located in Saudi Arabia.
When Egypt’s President Morsi threatened to sue the makers of the YouTube video Innocence of Muslims and demanded that the US prosecute them, this was the pretext for demanding legal action. It’s the reason why Franks asked Perez to categorically state that the DoJ would never seek to criminalize criticism of religion, and why Perez refused to do so. As Heritage notes, the initial response from the Cairo embassy to the protests calling the YouTube clip an “abuse” of free speech goes right along with this administration’s pussyfooting on First Amendment rights in this regard.
There are tough questions that might take multiple parsings to fully answer. This isn’t one of them. The DoJ under the Constitution has no leeway on this issue, and the correct answer is, “Of course the DoJ won’t allow speech critical of religion to be criminalized.” When the man running the Civil Rights Division of the DoJ can’t bring himself to give that answer the first time it’s asked, we should all be very, very concerned.
Update: Michael Totten noted in a separate post that Perez finally did say that that the DoJ wouldn’t criminalize speech criticizing religion, after Rep. Jerry Nadler nudged him further:
I erred, however, when I wrote that Perez “refuse[d] to say that his department won’t attempt to criminalize blasphemy in the future.” He did refuse to say that in the video, but unbeknownst to me at the time he clarified his position and said the right thing later in the same hearing.
The relevant portion begins at 49:24. Below is a transcript:
Representative Jerry Nadler: I assume the department would make a commitment that you’re not going to offer a proposal to criminalize protected speech, to criminalize criticism of religion or of anybody else, other than in the context of a direct threat.
Perez: Right. We will do this work, as we always have, in a way that is consistent with the Constitution.
Nadler: Which means you cannot criminalize, uh…
Perez: Hate speech.
Nadler: Hate speech.
Franks was quite right that he didn’t ask a hard question. Criticism of a religion (or anything else) is a very different thing from a death threat or an incitement to murder and violence. I don’t know why Perez struggled with it. The simple and correct answer to Franks’ question is “no.”
Perez did later clarify his position, however, so I’m sorry that I wrote about this at all. I wouldn’t have had I known what Perez said later. But I’m happy to correct the record. And this is one of those cases where I’d rather be wrong than right anyway.
I’m less than impressed with Perez’ belated recognition of First Amendment and free speech issues than Michael is, but I’m including his thoughts on this to be as fair as I can on the reversal. The fact that it took almost the whole hearing for the man whose supposed to protect civil rights to decide whether criminalizing critical speech falls outside the bounds of the Constitution is almost as bad as the first video suggests.