In a speech to the United Nations High Commission on Human Rights in Geneva, Switzerland, Intelligence Report Editor Mark Potok discussed the First Amendment as it applies to the Internet.
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.
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."
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.