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Internet Hate Speech and the Law
All
of this raises the question, what should be done about this spread
of hate through cyberspace? Most people, when they are presented with
the scope of the problem say, "There ought to be a law." That certainly
was the reaction of Congress when it enacted the Communications Decency
Act, which dealt not only with pornography, but also with some extremist
groups, but the U.S. Supreme Court subsequently ruled that the Act was overly broad.
Other attempts to regulate the Internet in the United States have
virtually all been struck down because of the same reason. It's very
hard to create a prohibition or a prescription against the free flow
information. You have to deal with hate speech in other, more creative
ways.
One
method available to individual computer users is to deny the bigots
access to home computers. ADL has developed a HateFilter,
which is designed for parents to use in home computers to filter
out some of the most offensive hate sites. The software is primarily
intended for use as an educational tool. It blocks access to sites
and redirects the user to information about hate groups at the ADL
home page.
There
are legal remedies, however, when hate speech crosses the line into
threats and intimidation. Under the law, threats are not protected
under the First Amendment. This applies to threats involving racial
epithets or those motivated by racial animus. A threatening private
message sent over the Internet to a victim, or even a public message
displayed on a web site describing intent to commit acts of racially
motivated violence, can be prosecuted under the law. Similarly,
harassing speech is not constitutionally protected because the speech
in question usually amounts to impermissible conduct, not just speech.
Both
harassment and threats must be directed at specific individuals.
Blanket statements expressing hatred of an ethnic, racial or religious
group cannot be considered harassment, even if those statements
cause emotional distress.
Another
unprotected activity is incitement to violence. The U.S. Supreme
Court ruled in the case of Brandenburg v. Ohio that there
is a line between speech that is "directed to inciting or producing
imminent lawless action..." and speech that is not likely to incite
such action. Still, the Brandenburg standard is a high bar
to meet. Online hate speech will rarely be punishable under this
test.
Likewise,
the concept of "group libel" -- comments directed toward Jews, blacks
or any other religious or racial group -- cannot be used as a weapon
against haters who spew invective online or off. The courts have
repeatedly held that libel directed against religious or racial
groups does not create an actionable offensive. Libel on the Internet
directed toward a particular person or entity, of course, is actionable
under the law just as libelous remarks uttered in any public forum.
While
hate speech online is not in itself punishable, it may provide evidence
of motive in a hate crime case. Forty-two states and the District
of Columbia currently have some form of a hate crime law on the
books that enable prosecutors to seek increased penalties when a
victim is targeted in a bias crime. When hate speech on the Internet
inspires violence, the evidence could aid the prosecution in seeking
an increased penalty under the hate crimes statute. While this concept
has only been applied to movies thus far, there have been an increasing
number of crimes being committed by perpetrators who read hate literature
online. The racially motivated shooting of blacks, Asian-Americans
and Jews in suburban Chicago over July Fourth weekend in 1999 was
carried out by a member of World Church of the Creator, Benjamin
Nathaniel Smith, who, according to law enforcement officials, has
admitted to reading hate literature online. There have been similar
cases where perpetrators of hate crimes have found inspiration in
literature easily obtainable on the Internet.
Even
with laws against intimidating speech, the anonymity of the Internet
makes it difficult to track down and prosecute perpetrators of threatening
messages. This proved true in a recent case involving a Detroit
boy who received a barrage of anti-Semitic death threats in his
mailbox. The 11-year-old, who innocently stumbled upon a hater while
surfing through a public chat area, immediately reported the incident
to his parents, who notified the local police. Not surprisingly,
their investigation turned up few clues as to the source of the
anonymous threats. Eventually, it was determined the source was
disguised, quite possibly outside of the country, and obviously
well beyond the reach of local authorities.
Yet
there have been other successful prosecutions against senders of
hate mail. A student at the University of California in Irvine who
transmitted threatening e-mails to Asian students was caught and
convicted of a civil rights violation. There have been other convictions.
Still,
the law isn't always a panacea to hate. The best antidote to hate
speech, ADL maintains, is more speech. Public awareness of hate
on the Internet, whether through reports and studies or media coverage,
can go a long way to help sensitize the public, private Internet
companies, and government regulators to the problem.
A
summary of groundbreaking cases involving online hate speech and
a legal analysis of issues relating to hate on the Internet is available
in the ADL report, "Combating
Extremism in Cyberspace: The Legal Issues Affecting Internet Hate
Speech."
Next: Internet
Service Providers: A Link to Hate |
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