Spinning hate on the Web
While hate speech in all its forms has long tested the limits of the First Amendment, the debate has escalated in the age of e-mail and the World Wide Web.
Recent studies by the Anti-Defamation League and the Southern Poverty Law Center show that hundreds of extremist groups have taken advantage of the Internet to spread their messages of hate.
Joe Roy, director of the Southern Poverty Law Center's Intelligence Project, said that “hate groups have definitely taken good advantage of the Internet. Our report shows that the number of hate Web sites has gone from 1 to 163 in the past couple of years.”
Jay Kaiman, Southeast regional director for ADL, said that “our research shows there have been significant increases in web hate pages. The problem is compounded by the fact that certain of the pages seem to be appealing to young people. It is clear to us that young people are reading these pages.”
Because government has a compelling interest in protecting minors from harmful material, should it step in and impose criminal penalties for those who espouse hate over the Internet?
Roy and Kaiman say no. Kaiman explains that the experience of other countries — such as Sweden, Canada and Germany — shows that outlawing racist speech is not the answer.
What, then, is the answer to curbing the spread of hateful words and ideas through this alluring medium of captivating graphics and fingertip control?
Because they are private companies, Internet service providers can restrict hate speech over their networks without running afoul of the First Amendment. Filtering programs can weed out such sites. But filtering programs are cumbersome tools, often restricting much more material than they are designed to screen.
Furthermore, censoring speech can create other problems by making the forbidden expression seem more attractive or by making martyrs of its practitioners. “ADL's answer is exposure,” says Kaiman. “We want to expose these hate speech groups for what they are. Look at Nazi Germany. Perhaps things would have been different if Hitler [had been] subjected to intense scrutiny. I mean if CNN was in Germany during Hitler's reign, would we have responded quicker?” he asks.
The Internet is simply the latest medium to be blamed for distasteful messages. As Roy says, “Hate groups have always adapted to new technology. The Internet has far more positive ramifications than it does negative. It is the largest research tool on the planet.”
One free-speech expert, Robert O'Neil argues that hate speech on the Internet should not be treated any differently than hate speech in the print medium.
The professor said: “Even before the U.S. Supreme Court's decision last summer in Reno v. ACLU, I would have agreed that Internet hate speech should be protected to the same degree as hate speech printed in a book, for instance. After the decision in the Communications Decency Act case, it is even clearer to me that hate speech on the Internet cannot be curtailed or restricted any more than hate speech spoken by word of mouth or hate speech in the print medium.”
A reading of the court's decision in the Communications Decency Act case supports O'Neil's position. Reno v. ACLU involved constitutional challenges to two provisions of a federal law that criminalized the transmission of “indecent” or “patently offensive” speech over the Internet.
In that case, the government argued that Internet communications, like the broadcast or cable media, were eligible only for a relaxed level of First Amendment scrutiny. The Supreme Court flatly rejected the argument, noting that “our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.”
Speech over the Internet, like any other form of expression, can cause harm. But our democratic experience has shown that the best response to hurtful speech is more speech that counters those ideas in the marketplace.
We would be well-served to remember the words of Justice Louis Brandeis spoken more than 70 years ago: “No danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom.”
Brandeis' warning applies with even greater force to the speech-enhancing medium of the Internet where every individual can become a pamphleteer.