Internet Hate and the Law

The First Amendment protects most hateful speech on the World Wide Web, but there are exceptions
Limits of Free Speech
But while general advocacy is protected, there are limits to certain other forms of speech. In the last few years, we have seen an increasing number of legal cases dealing with threats made over the Internet and related material. The outcome of these cases has made it clear that the protection offered to Internet speech under the First Amendment has its limits.

On Sept. 20, 1996, a former student at the University of California at Irvine sent an E-mail message to 62 Asian students. It said, in part, "I personally will make it my life career to kill everyone of you personally. OK? That's how determined I am," and was signed, "Asian Hater."

The case brought against Richard Machado, then 19, was the first U.S. prosecution of an E-mail threat. ... Although the first case resulted in a mistrial, Machado was eventually convicted of two misdemeanor counts and sentenced to a year in prison. Legal analysts said later that the case showed that threats made on the Internet were no different than those made by telephone or mail. ...

In any event, the Machado case was followed by others — a disproportionate number of which seemed to occur on or around college campuses.

Just months after winning the Machado conviction in 1998, the federal government prosecuted the sender of anti-Hispanic E-mail death threats to 67 students and employees of California State University in Los Angeles, the Massachusetts Institute of Technology and other institutions.

Eventually, Kingman Quon, an Asian-American student, was convicted of sending the E-mail, which said, in part, "I hate your race. I want you all to die. ... I'm going to come down and kill your wetback, affirmative action ass." Quon was sentenced to serve two years in federal prison.

Last year, a federal court in Oregon ruled on an Internet lawsuit that may signal the beginning of an expansive view of what constitutes a "threat" over the Internet. The suit was filed by Planned Parenthood, an abortion rights group, and several physicians who provide abortions.

It targeted 12 hard-line abortion opponents for helping to create printed "Wanted" posters featuring abortion doctors and an Internet site called "The Nuremberg Files." The site, amid graphics of dripping blood, carried a list of some 225 abortion providers and, in many cases, their home addresses, phone numbers, automobile descriptions and license numbers, and other personal details clearly helpful to anyone who wanted to kill them.

When an abortion doctor was killed — seven have been murdered in the United States since 1993 — a line was drawn through his name. Those wounded had their names listed in gray. While the site and posters did not specifically advocate murder, the site was linked to a letter from a convicted doctor-killer describing the joy he felt when murdering his victim.

The theory of the lawsuit was that publicizing the names of doctors violated a federal law meant to protect the public's access to abortion facilities. The defense called it free speech.

'True Threats' and New Laws
In hearing the case, the federal judge said that jurors should consider the "alleged threats ... in light of their entire factual context, including the surrounding events and the reaction of their listeners." Whether or not the alleged threats were "true threats" would then be determined by the "objective, speaker-based test."

That is, the jury would need to decide if a "reasonable" person would foresee that the targets of the "threats" would interpret them as a serious expression of intent to do harm.

The jury thought so. On February 2, 1999, it awarded the plaintiffs a $107.9 million judgment — whopping, even by American standards. The judge who presided over the case, Robert E. Jones, said that the "wanted" posters and Web site were "blatant and illegal communication of true threats to kill."

In addition to roundly endorsing the jury verdict, he ordered defendants to stop publishing "Wanted" posters and contributing information to the Nuremberg Files Web site. Some think the ruling may be overturned on appeal. ...

Legislative bodies as well as the courts have tried to tackle the problems posed by hate speech on the Internet.

In the last year, U.S. senators have attempted — unsuccessfully so far — to force public libraries to use Internet filtering software capable of screening out hate and pornography sites on computers used by children; to require Internet service providers (ISPS) to offer such software to their customers free or at cost; and to make it a crime to 'teach or demonstrate" how to make explosives and other destructive devices.

The state of Arizona, on the other hand, did pass a law in 1999 that mandates that public schools and libraries use filtering software. The institutions will be required to either put software on their computers or buy Internet access from an ISP that provides software.

This completes a survey of the major legal issues currently surrounding the Internet and hate sites and propaganda in America. Although the U.S. Supreme Court has said that the Internet is more like the print media than the broadcast media for First Amendment purposes, the contours of the law are by no means settled.

As the Internet becomes more and more pervasive, more cases like the Planned Parenthood case in Oregon ... will test the boundaries of the law, and more legislative initiatives can be expected.