Freedom of Speech and Online Hate Speech

Victoria Gue

vgue1@ndm.edu

November 9, 2010

Freedom of Speech and Online Hate Speech

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Introduction

Freedom of speech has always been one of the foremost cornerstones of democracy in the United States. Unlike other countries that restrict the right of individuals to speak their minds and, in doing so, implement policies and laws designed to curtail individual thought and discussion, the United States continues to uphold the right of individuals to express themselves freely, without the fear of persecution or censorship. Although the right to freedom of speech often fosters intelligent discussion, debate, and activism in the United States, it also allows for the existence of other, more controversial types of speech, such as hate speech. While hate speech has existed for centuries, the advent of new technology and the Internet has resulted in an increase in hate speech in the virtual world. New public forums such as blogs, message boards, chat rooms, and Web sites have ushered in an increase in controversial hate speech, which flourishes in the unregulated virtual space with few gatekeepers. As a result, critics worry about the potential negative effects of hate speech online and how the prevalence of hate speech might affect children and adults, alike. While many are concerned with the perpetuation of hate speech online, others argue that such speech is protected under the First Amendment, and is necessary to advance society and democracy. Nevertheless, both sides agree that the Internet allows for easily accessible, readily available, and cost efficient ways to disseminate hate messages.

What is Freedom of Speech?

Simply stated, freedom of speech is the ability and the constitutional right of individuals to voice their thoughts, opinions, and beliefs publicly without the fear of persecution or censorship. Such types of protected speech may include political speech, symbolic speech, speech with action (demonstrations or picketing), and even hate speech (Freeman, 2005, p. 3). Freedom of speech is a constitutional right guaranteed to United States citizens under the First Amendment. Many critics argue that the right to freedom of speech is the “right most essential to democratic government” (Freeman, 2005, p. 3). While individuals have historically invoked their right to freedom of speech in “real world” forums or professionally published documents, the emergence of the Internet in recent history and the corresponding introduction of message boards, blogs, and Web sites in the new virtual world have led to increasing questions about the potential limits to freedom of speech in the online world.

What Laws Govern Freedom of Speech?

There are various laws – both general and online-based – that govern the right to freedom of speech. While some laws have prevailed throughout significant changes in the history of the United States, others have faltered over the course of time, as rising concerns over new technological advances and speech capabilities in the virtual world continue to be weighed against the basic constitutional right to freedom of speech.

Laws and Methods Protecting Freedom of Speech:

First Amendment
Bradenburg Rule
Telecommunications Act of 1996
Communications Decency Act of 1996
Child Online Protection Act of 1998
Children’s Internet Protection Act of 2000
Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM) of 2003
Filtering
Zoning
Acceptable Use Policies

According to the First Amendment, “Congress shall make no law…abridging the freedom of speech, or of the press” (Timofeeva, 2003, p. 270). Although the law seems broad and all-encompassing, not all types of speech are granted the same level of protection (Timofeeva, 2003, p. 270). Speech that poses a direct threat or calls for imminent harm against an individual or group of individuals is typically not protected speech, nor are libel or words that have little social value. On the other hand, hate speech, which is closely associated with political speech, usually falls into a category of speech that is protected by the First Amendment (Timofeeva, 2003, p. 270). Provided that hate speech does not include “true threats” or “violence against a particular individual,” it maintains First Amendment protection. (Bailey, 2004, p. 74). As Jane Bailey (2004) articulates, regulations against hate speech are most likely to occur only when it is clear that such speech will lead to harmful, immediate action that neither appropriate response nor intelligent discussion can prevent (p. 74). According to Yulia Timofeeva (2003), “The First Amendment…protects the vast majority of extremist Web sites that disseminate racist or anti-Semitic propaganda, as well as individual statements expressing hatred of an ethnic, racial, or religious nature” (p. 276). Some critics view the Internet as a place that deserves “First Amendment parlance,” a place where freedom of expression should receive the strongest protection (Nunziato, 2005, p. 1116).

The Bradenburg Rule, derived from the case of Bradenburg v. Ohio, has also been used to uphold freedom of speech. According to the Bradenburg Rule, controversial speech is subject to the “clear and present danger” test. If such speech seeks to invoke actual harm, and it appears exceedingly likely that such speech will prove successful in its intention, then it is not deserving of First Amendment protection (Timofeeva, 2003, p. 272).

Another law that was enacted to limit certain types of speech was the Communications Decency Act (CDA) of 1996. The CDA was enacted as part of the Telecommunications Act of 1996, which prohibited the “knowing transmission of obscene or indecent messages or images through telecommunications to minors” (McCarthy, 2005, p. 84). Specifically, the CDA attempted to limit underage exposure to internet pornography by encouraging Internet Service Providers (ISPs) and independent Web sites to censor content that might be considered harmful or threatening to children. Under section 230 of the CDA, ISPs were not responsible for harmful content published by third parties; therefore their decision to censor certain content was considered voluntary and they were not held liable for violating freedom of speech through the implementation of censoring (Dickinson, 2010, p. 866). Although many ISPs championed the CDA, it was eventually declared unconstitutional in ACLU v. Reno, when the Supreme Court voiced concerns about the CDA’s threat to freedom of speech and argued that less restrictive methods of curtailing harmful content were available (McCarthy, 2005, p. 85).

The Child Online Protection Act (COPA) of 1998 was also implemented to prohibit harmful content to minors under the age of 17 from being distributed through the Internet (McCarthy, 2005, p. 86). Such content included messages, pictures and recordings that lacked “serious literary, artistic, political or scientific value for minors” (McCarthy, 2005, p. 86). Furthermore, it made it illegal for Web site operators to permit individuals access to certain materials without first verifying their age (McCarthy, 2005, p. 86). Like the CDA, COPA was also struck down because Congress said it violated the First Amendment and that less restrictive methods were available to prevent minors from accessing harmful content, while not infringing on the rights of adults who wished to access the same content (McCarthy, 2005, p. 87).

Another law created to limit the dissemination of harmful material to minors online was the Children’s Internet Protection Act (CIPA) of 2000. This Act requires public libraries and schools that receive federal technology funds to utilize filtering methods and implement safety policies in an effort to limit a child’s exposure to potentially harmful content online (McCarthy, 2005, p. 85).

The Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM Act) of 2003 was another attempt to impose limitations on online speech. Designed to limit spam, the CAN-SPAM Act specifies regulations that spammers must follow when transmitting unsolicited email online (Lee, 2005, p. 131). Under the Act, spammers must clearly identify that the email message is an advertisement, include an opt-out feature in the body of the email, and provide a physical mailing address (Lee, 2005, p. 131). Even though the intention of the Act was to increase the cost for spammers to operate their businesses and reduce the number of individuals affected by countless spam emails, spam messages have continued to thrive because of the time and effort required to track spam and penalize spammers (Lee, 2005, p. 132).

It is evident that the lack of solid laws regulating speech in both the real world and the virtual world stems from the sweeping protection of the First Amendment. Critics argue that the lack of universal laws regulating hate speech is not simply a national dilemma, but also an international problem. Increasing globalization of the virtual world has resulted in heightened concerns over the lack of uniform international laws regulating hate speech. As a result of the scope of the First Amendment, the United States often withholds from signing international agreements and, consequently, other countries are left virtually powerless to prevent their citizens from accessing hate speech that is generated in the United States, even though it is illegal in those countries (Bailey, 2004, p. 77). For example, 33 countries (including the United States) signed the Cybercrime Convention Agreement in 2001, an agreement designed to create universal laws “with respect to computer crime and child pornography on the Internet” (Bailey, 2004, p. 78). While other countries argued that a provision related to hate speech was also needed, the United States disagreed and resisted the provision because of the First Amendment (Bailey, 2004, p. 78).

Although the protection of the First Amendment makes international and national regulation of hate speech difficult, private companies and ISPs often choose to voluntarily combat hate speech through filtering and zoning, as well as terms-of-use stipulations (Bailey, 2004, p. 78).

Filtering allows companies or individuals the ability to block “harmful” content from being delivered to their computers, and utilizes a rating system to block information that may be considered threatening (Bailey, 2004, p. 81). One example of such a preventative method is the Anti-Defamation League’s use of HateFilter, which filters out defamatory racial and ethnic content (Timofeeva, 2003, p. 279). Although filtering may seem like an effective method to decrease the spread of hate speech, it often proves difficult because of the rapidly increasing number of Web sites. Furthermore, filtering of harmful material is based upon human judgment of what should be considered “harmful,” and some filters also frequently filter out educational material along with the harmful material (Timofeeva, 2003, p. 279).

While filtering allows receivers the opportunity to limit harmful content, zoning gives speakers the authority to “prevent certain users from accessing their content” (Bailey, 2004, p. 80). For example, some Web sites require the user to click on an acknowledgement verifying that he or she is of legal age to view adult content, while other sites use “geolocational technology” to deny access to users in countries where such content is considered illegal (Bailey, 2004, p. 83). Like filtering, zoning also proves difficult because individuals can design software and technology to circumvent the restrictions (Bailey, 2004, p. 83).

In addition to zoning and filtering, many ISPs require their members to read and accept a terms- of-service notice or an acceptable use agreement related to proper online behavior. For example, AOL’s agreement states that AOL has the right to block or remove offensive content (Bailey, 2004, p. 85). Other ISPs adopt a “hate-free policy,” stating that they can revoke an individual’s membership if that individual violates their policies (Timofeeva, 2003, p. 279).

The First Amendment and increasing privatization of the Internet suggest that ISPs have “sole discretion” over how they choose to regulate their speech (Nunziato, 2005, p. 1117). As a result, ISPs face an important dilemma: They must weigh the importance of morality against the negative implications of censorship and attempt to find the difficult balance between the two (Bailey, 2004, p. 96).

What is Hate Speech?

According to Timofeeva (2003), hate speech is “speech that has no meaning other than expression of hatred for a particular group or individual” (p. 257). Hate speech typically focuses on minority groups including: women, religious, ethnic or racial groups, and homosexuals. These minorities, often groups of people who have withstood persecution throughout history, are usually the recipients of verbal abuse and harassment (Slagle, 2009, p. 238). As Slagle (2009) states, there are three main characteristics of hate speech. Hate speech: includes messages of inferiority, utilizes messages that are hateful and debasing, and directs messages against an oppressed group or minority (p. 242). Most often, hate speech aims to intimidate both individuals of color and Jewish individuals, promote white supremacy, and deny historical events such as the Holocaust (Timofeeva, 2003, p. 258).

Although hate speech has historically prospered in “real world” public forums, political debates and published documents, the Internet has fostered a new wave of hate speech – virtual hate speech. Individuals or groups wishing to disseminate messages of hate online can do so virtually free of cost, reaching millions of people and spreading their messages quickly and with very little effort. As a result, the Internet has become “an increasingly preferred medium for hate propagandists” (Bailey, 2004, p. 62). While hate speech was initially confined to Web sites during the early days of the Internet, it now flourishes throughout various types of Internet mediums including: newsgroups, email messages, chat rooms, blogs, message boards, and even games. Groups such as the Ku Klux Klan and Westboro Baptist Church have moved towards spreading their messages of hate online, using online forums in an attempt to attract new members and attack minority groups (Daniels, 2008, p. 134). The spread of hate speech online makes hate speech difficult to track and makes it nearly impossible to assign accountability to individuals posting such speech, as they often do so anonymously (Bailey, 2004, p. 65).

Jessie Daniels (2008) argues that there are two types of hate speech in the virtual world: overt hate speech and cloaked hate speech (p. 129). While overt hate speech is usually easy to spot through its use of explicit language and forthright degradation of minority groups, cloaked hate speech seeks to deceive the user by burying the messages of hate several pages into the Web site or by using flowery language and seemingly innocent or sophisticated domain names (Daniels, 2008, p. 129). Those seeking to spread messages of hate have two options: they can restrict access to their Web sites or forums to ensure that their messages are only reaching their members or individuals who share the same ideological beliefs, or they can make their forums open to the public in an attempt to further spread their messages and attract new members (Bailey, 2004, p. 65).

Although some critics argue that hate speech deserves protection because it is simply ideological speech that does not pose direct or imminent harm, others caution that hate speech may lead to an increase in cyber-bullying and actual hate crimes (Timofeeva, 2003, p. 274).

What are the Advantages?

There are various advantages of the existence of freedom of speech online. First, Web sites and social networking services allow for easy and quick distribution of messages at little to no cost for the distributors of the message. As a result of the largely unregulated nature of the Internet, individuals are not required to secure publishers in order to distribute their work; rather, the Internet readily affords individuals the opportunity to reach a wide audience from different regions of the world or, conversely, to customize their messages to reach a narrow group of like-minded people with similar interests and beliefs (Gelman, 2009, p. 1318). As Daniels (2008) states, the Internet is often used to “amplify the connection of like-minded people” (p. 142). Since much of the Internet is unmediated, individuals are free to voice their thoughts, opinions and beliefs without the fear of censorship, reprise or prosecution.

While most would readily agree upon the aforementioned advantages of freedom of speech online, some critics also champion the existence of hate speech online. Though some believe that hate speech is nothing more than outright discrimination and bigotry, others argue that hate speech is one form of speech necessary to advance democracy and move society forward (Slagle, 2009, p. 250). They argue that controversial ideas and continual questioning of established societal norms and beliefs are critical in propelling the conversation forward and engaging in vital debate; without such controversy, the “political will” of the people will soon dissipate (Slagle, 2009, p. 240). Likewise, some critics believe that hate speech allows for the further development of a strong democracy and government, strengthening society by encouraging tolerance and self-control (Slagle, 2009, p. 246). As Slagle (2009) articulates, removing hate speech from discussion “…hinders the debate and slows society’s progress. Ideas become valuable when their worth is proven, and that occurs only when they are confronted by opposing ideas” (p. 250).

In addition, the existence of freedom of speech online benefits distributors of that speech by allowing them to post hate messages to promote, recruit and expand their base of followers, while pursuing individuals who “do not fit into the stereotypical image of the movement” (Meddaugh & Kay, 2009, p. 252).

What are the Disadvantages?

Though there are advantages of freedom of speech online, there are also clear disadvantages. Without gatekeepers and mediatory measures in place, all types of speech are allowed to flourish, including hate speech. Despite some critics advocating for the existence of such controversial speech online, many individuals are concerned that unregulated hate speech will spread to millions of individuals in the virtual world, multiplying the number of people involved in hate movements.

In addition, the promotion of bigotry, discrimination and alienation of individuals or groups threatens the well-being of society and the equality afforded to all people in the United States. Such speech may lead to lower self-esteem for the targets of the remarks, cyber-bullying, or harmful social movements (Slagle, 2009, p. 242). Of particular concern is the impact of hate speech on younger generations, who may have difficulty discerning discriminatory speech from factual speech and may become influenced by such remarks.

Another disadvantage is that online hate speech receives an incredible amount of visibility, and has the potential to reach even more people if and when media outlets notice it. In addition, prosecution of distributors of hate speech remains virtually impossible. The broad scope of the First Amendment makes international regulation non-existent and the anonymity and obscurity associated with many of the comments make it difficult to track the speakers and assign ownership of the hate speech (Geach & Haralambous, 2009, p. 244).

What are the Moral Concerns?

Many of the moral concerns surrounding freedom of speech online center on the unregulated and unmediated nature of the Internet and the spread of hate speech as a consequence. As there are few gatekeepers and regulators of speech online, individuals are allowed to freely post their thoughts and beliefs, however hateful or discriminatory they may be, anonymously, thereby taking no responsibility for their messages and making accountability impossible.

In addition, it may be difficult to ascertain the speaker’s purpose on the Internet. Is the speaker promoting racial, ethnic or sexual discrimination by posting hate speech or is the speaker calling for a reasoned discussion of existing societal norms and beliefs? (Slagle, 2009, p. 248). With the absence of facial expressions, body movements, eye contact and vocal pitch, the tone of some messages may prove difficult to determine.

Another moral concern relates to filtering and zoning out certain types of speech. Who decides what hate speech is and who decides how to deal with it? Likewise, who decides what types of speech prove harmful to minors, and how differently should the interests of children be treated from the interests of adults? (McCarthy, 2005, p. 98). Without government regulation or a standard set of laws concerning hate speech, such control remains in the hands of individuals.

What are the Ethical Concerns?

The most common ethical concern surrounding freedom of speech online and the resulting expansion of hate speech is that the spread of discrimination, bigotry and racism will prove harmful to the United States, a country built upon equality for all, and its citizens. Critics worry that hate speech “advocates that certain social elements should be denied fundamental rights” (Timofeeva, 2003, p. 282). Proponents of hate speech view the Internet and its public forums as a “force-multiplier” that allows them to expand their potential audience and spread their messages of hate (Daniels, 2008, p. 132). In doing so, distributors of hate speech perpetuate the cycle of intolerance and increase the probability that such speech will lead to “real world” hate crimes, harassment, cyber-bullying and harmful social movements.

Another ethical problem related to hate speech concerns the increasingly young viewership that distributors target. Critics of hate speech argue that minors are often unable to distinguish factual speech from hate speech and question the impact that hate speech will have on minors (Daniels, 2008, p. 130).

What are the Social Concerns?

Aside from moral and ethical concerns, critics also question the impact of hate speech on society as a whole. They argue that hate speech “perpetuates an imbalance of power” and “lessens equality under the law” (Slagle, 2009, p. 239). As a result, it poses a direct threat to social harmony and acceptance (Bailey, 2004, p. 80).

Other critics are concerned that virtual hate speech will lead to “real world” political threats and hate movements. As Internet hate speech thrives and reaches an increasing number of potential members, it may lead to new organized movements promoting violence against minority groups or individuals (Daniels, 2008, p. 132). Conversely, hate speech may also negatively and personally affect individuals, posing a threat to their careers, safety, social mobility and emotional well-being (Timofeeva, 2003, p. 257).

Conclusion

The broad protection afforded under the First Amendment and the absence of universal regulation online has led to the rapid spread of hate speech on the Internet. While some critics argue that such controversial speech on blogs, message boards and Web sites is simply speech that poses no imminent harm and must therefore remain protected speech in order to advance society and uphold democracy, other critics are concerned with the promotion of racism and discrimination and caution proponents of hate speech about the resulting moral, ethical and social dilemmas. Those against hate speech argue that private regulation of hate speech will ultimately fail if international standards and regulations are not adopted and enforced (Timofeeva, 2003, p. 284). Until then, it remains the responsibility of individuals to advocate for the elimination of hate speech online. Furthermore, individuals should participate in the counter speech movement, making their own voices and opinions heard while showing that the majority of individuals do not share the same views as those expressed through the rhetoric of online hate speech (Slagle, 2009, p. 245).

For More Information:

First Amendment Center

Anti-Defamation League

American Civil Liberties Union

References

Bailey, J. (2004). Private regulation and public policy: Toward effective restriction of Internet hate propaganda. McGill Law Journal , 49(1), 59-103.

Daniels, J. (2008). Race, civil rights, and hate speech in the digital era. In A. Everett (Ed.), Learning race and ethnicity: Youth and digital media (pp. 129-154). Cambridge, MA: The MIT Press.

Dickinson, G. M. (2010). An interpretive framework for narrower immunity under Section 230 of the Communications Decency Act. Harvard Journal of Law & Public Policy , 33(2), 863-883.

Gelman, L. (2009). Privacy, free speech, and “blurry-edged social networks. Boston College Law Review , 50(13), 1315-1344.

Freeman, E.H. (2000). Freedom of speech in cyberspace: Intel v. Hamidi. Information Systems Security , 9(2), 5-10.

Geach, N. & Haralambous, N. Regulating harassment: Is the law fit for the social networking age? Journal of Criminal Law , 73(3), 241-257.

Lee, Y. (2005). The CAN-SPAM act: A silver bullet solution? Communications of the ACM , 48(6), 131-132.

McCarthy, M. (2005). The continuing saga of Internet censorship: The Child Online Protection Act. Brigham Young University Education & Law Journal , 15(2), 83-101.

Meddaugh, P. M. & Kay, J. (2009). Hate speech or “reasonable racism?” The other in Stormfront. Journal of Mass Media Ethics , 24(4), 251-268.

Nunziato, D. C. (2005). The death of the public forum in cyberspace. Berkeley Technology Law Journal , 20(2), 1115-1171.

Slagle, M. (2009). An ethical exploration of free expression and the problem of hate speech. Journal of Mass Media Ethics , 24(4), 238-250.

Timofeeva, Y.A. (2003). Hate speech online: Restricted or protected? Comparison of regulations in the United States and Germany. J. Translational Law & Policy , 12(2), 253-286.

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