Beyond free speech: novel approaches to hate on the Internet in the United States

Abstract

Hate on the Internet presents a unique problem in the United States. The First Amendment to the Constitution protects speech, even that which is hateful and offensive. Although the First Amendment is not without limitation and, indeed, although there have been a small number of successful prosecutions of individuals who disseminated hate speech over the Internet, web-based hate continues to receive broad First Amendment protections. Some non-governmental organizations in the United States, such as the Anti-Defamation League (ADL) and the Southern Poverty Law Center, have adopted innovative approaches to hate on the Internet. For instance, the ADL tracks and monitors hate-based websites, identifies hate trends, works cooperatively with law enforcement, notifies potentially impacted communities about relevant hate activities, and responds with training, educational curricula and counter-messages. It also has taken a novel, free-enterprise approach to encouraging ISP regulation of hate-speech on the Internet. The ADL has successfully worked with Internet Service Providers (ISPs) to enforce terms of service contracts (TOS) against hate-based website. While identifying originating ISPs is no small challenge, ISPs may voluntarily cease to provide Internet access when made aware of offensive hate content. This article first examines the evolving legal jurisprudence in the United States regarding prosecutions of hate speech on the Internet. It then analyzes the roles of NGOs in monitoring, tracking and regulating hate on the Internet. Finally, it examines the potential and limitations of these efforts.

Keywords:

• hate crime
• hate speech
• freedom of speech
• Internet
• online threat
• First Amendment
• Anti-Defamation League
• Southern Poverty Law Center

Notes

1. After the en banc decision in 2002, litigation continued solely with respect to the proper calculation of punitive damages and was not related to the true threats definition. The United States Supreme Court three times declined ACLA's to review the case, most recently in October 6, 2008. See American Coalition of Life Activists v. Planned Parenthood of Columbia/Willamette, Inc., 129 S.Ct. 145 (2008). As such, the definition of ‘true threats’ provided in the en banc decision continues to be governing law.

2. Roy Frankenhouser, a Ku Klux Klan leader and host of a local television show entitled ‘White Forum’ also engaged in a campaign of harassment and intimidation against Jouhari. HUD also sued Frankenhouser in this action. His case settled separately. As part of his settlement, Frankenhouser agreed to publicly apologize to Jouhari and her daughter on his television show, perform community service, and pay a portion of his income to Jouhari.

3. There are also a small number of criminal cases in which the defendant's Internet visits to hate websites were used to prove bias motive in hate prosecutions. For instance, during trial of a defendant who was charged with burning a cross on an interracial couple's property, the prosecution successfully introduced testimony that the defendant spoke about accessing racist Internet sites to prove the defendant understood the racist significance of cross burning. United States v. Magleby, 241 F.3d 1306 (10^th Cir. 2001). In another case involving a racist murder spree, the prosecution introduced evidence that the defendant visited racist and white supremacist websites. (ADL, Richard Baumhammers: Racist Murder & the Internet, available at http://www.adl.org/Internet/extremism_rw/inspiring.asp).

4. See http://help.youtube.com/support/youtube/bin/answer.py?page=&answer=126264&master=hatefulcontent