International Human Rights Law
Michael J. Glennon · 2023
Abstract Facebook’s Oversight Board upheld Donald Trump’s suspension not because he incited violence, which the First Amendment would not protect, but because he glorified violence, which the Board said is unprotected under international law, even though it is protected by the First Amendment. This chapter suggests that so-called content-moderation cases such as Facebook’s suspension of Trump should be government by the First Amendment, not international human rights law. The two are fundamentally different. International human rights law aims to protect individuals’ rights from interference by states, not from interference by other individuals or businesses. Adherence to it by private companies is voluntary and nonbinding. It is not a single, monolithic body of law. It is incomplete, fragmented, and inconsistent. Some of its elements allow speech suppression that is flatly incompatible with that permitted by the Constitution. The principal provisions of its seminal treaties are often vague and loophole-ridden. They have spawned state practice and customary international law that are confusing and contradictory. The net effect is a false universalism, a façade of consensus that masks indeterminacy and enables arbitrariness and cherry-picking.