Internet Hate and the Law

The First Amendment protects most hateful speech on the World Wide Web, but there are exceptions

Earlier this year, the Southern Poverty Law Center was asked to prepare a paper on hate speech on the Internet for the United Nations High Commission on Human Rights. Intelligence Report Editor Mark Potok traveled to Geneva, Switzerland, for the Feb. 16-18 conference and presented the paper, which focused on potential legal remedies to the problem.

Here are excerpts from his remarks:

We are here today to discuss the role of the Internet in promoting intolerance and to examine potential legal remedies to address the problem. In the past few years, the Center has been intensively monitoring the Internet and the increasingly important role it plays in recruitment and propagandizing for hate groups.

We have seen how this technology has been adopted wholesale by such groups, and the remarkable and unprecedented access this has afforded these groups to teenagers and other potential recruits, both in the United States and in Europe. ...

Although American extremists dabbled with crude computer bulletin boards during the late 1980s and early 1990s — mainly as a means of internal communication — it was not until March 1995 that the first World Wide Web hate site went up. The site was known as Stormfront.

It was run by former Klansman Don Black, who had earlier served time in federal prison for plotting to invade a small Caribbean island. Black correctly foresaw that the Internet would allow hate groups to directly reach millions of people for the first time, and indeed, a veritable explosion of hate sites followed. By early this year, the annual count of hate sites conducted by the Southern Poverty Law Center — including only U.S.-based sites with explicitly hateful material — had reached 305.

Targeting Youth
The leading reason for this growth is obvious. A few years ago, a Klansman needed to put out substantial effort and money to produce and distribute a shoddy pamphlet that might reach a few hundred people. Today, with a $500 computer and negligible other costs, that same Klansman can put up a slickly produced Web site with a potential audience in the millions.

In the 1980s, American groups like the White Aryan Resistance tried to recruit racist Skinheads as the "shock troops" of the movement. The result was a number of deaths and a larger number of people hurt — but no real advancement of white supremacy as a political movement.

Today, the aging cadre of white supremacist leaders recognize this lack of progress and are concentrating instead on a different kind of youthful recruit: the bright, college-bound teenager who is seen as a potential leader and movement-builder of tomorrow. The Net gives racists unprecedented access to precisely these teens, who live in their parents' homes and have computers in their bedrooms.

These children are largely middle- and upper-middle-class youths who wouldn't be caught dead at a Klan rally — or whose parents would make sure they weren't. The Net, with its promise of privacy, lowers any social inhibitions they might have had about consorting openly with racists and other haters.

Where these teens would likely have met social disapproval if they expressed anti-Semitic or racist ideas at home or in school, they are able to propound such ideas over the Internet in a welcoming environment.

Unlike older forms of debating ideas — in public forums or classrooms or even over the family dinner table — talk on the Internet is often limited to those who already agree with one another. There is no real exchange of ideas on whitepower.com. ...

For Americans, the first and most important legal question raised by the appearance of hate and pornographic material on the Internet was how the First Amendment would be applied to cyberspeech. U.S. courts have long distinguished between print and broadcast media.

The former is the freer medium, with no prior censorship allowed and broad freedoms to print anything short of criminal threats or materials within the narrow legal definition of "obscenity." (Of course, other laws, such as those surrounding libel and fraud, also are applicable.)

But in the case of broadcast media, the courts have traditionally found that the public has an interest in regulating the air waves, largely because of the limited number of broadcast frequencies available and the "invasive" nature of radio and tv (a viewer or listener could easily stumble across unexpected material).

Thus, for example, it is permissible to restrict pornographic films on television to late night hours, even if the films do not meet the definition of "obscenity."

How would the Internet be seen? In June 1997, the U.S. Supreme Court voted 7-2 to invalidate portions of the Communications Decency Act (CDA), a law that punished the Internet transmission of "indecent" materials (the material did not have to rise to the level of "obscenity") in a manner that would allow minors to see it.

The court rejected the government's arguments that the Net should be as highly regulated as broadcast media, instead seeing it as a "vast democratic for[um]" that more closely resembled print media. It found that the Internet was not "invasive" — users rarely encounter objectionable content "by accident," and such content is normally preceded by warnings.

In short, the Internet received the court's strongest free speech protections.

Because Internet speech is entitled to broad protection under U.S. law, it is clear that general political propaganda on the Internet will not be curbed by American courts. Under American case law, it is perfectly permissible to denigrate racial minorities or even to advocate the violent overthrow of the government some time in the indefinite future or in general terms.

Only when advocacy amounts to "incitement to imminent lawless action" can it be punished. And the definition of incitement is extremely narrow. Under American law, it is perfectly legal to advocate the political idea that "all police should be killed." On the other hand, it probably would amount to criminal incitement to tell an excited individual to "go kill that police officer over there."