Internet hate speech and the First Amendment, revisited.

• Author: Baumrin, Julian

1. INTRODUCTION II. EXAMINING THE CURRENT INTERNET HATE SITE CRISIS UNDER FIRST AMENDMENT JURISPRUDENCE A. The Abundant "Coincidence" of Internet Hate Websites, Hate Groups, and Hate Crimes in the United States 1. Recruitment 2. Advocating Violence 3. Statistics B. Introduction to United States' Approach to Hate Speech: Advancing the Marketplace of Ideas by Prohibiting Content-Based Restrictions 1. First Amendment Protection of Hate Speech & Two Important Exceptions to Prohibition of Content-Based Restrictions C. Internet Hate Speech in the United States: First Amendment & Federal Statutes 1. Juxtaposition Between United States' and International Approach to Hate Speech III. RETHINKING THE UNITED STATES' APPROACH TO ANONYMOUS INTERNET HATE SPEECH A. Revisiting Reno v. ACLU: Internet as an "Invasive" Medium 1. The Internet is an Invasive Medium 2. Analyzing these trends under FCC v. Pacifica and Reno v. ACLU 3. Preventing Children's Accidental Viewing of Indecent Internet Material: Creating New Generic Top-Level Domain to Aid Content-Filtering Technology B. Revisiting R.A.V. for Regulation of "Secondary Effects" of Hate Speech Websites 1. Internet Anonymity, Its Benefits, and Its Drawbacks 2. Secondary Effects of Hate Speech Websites 3. First Amendment Protection of Anonymous Speech, and its Application to the Internet IV. CONCLUSION I. INTRODUCTION

   Heralded as one of the most important inventions by the human species, (1) the Internet has provided for the facilitation of viewpoint-sharing, personal communication, education, (2) and economic development of corporate endeavors. (3) The Internet engenders freedom of expression by convening a diverse array of people and viewpoints together for discourse in a marketplace of ideas, (4) but the relative inexpensiveness and efficiency of Internet speech, as well as the pervasiveness of its messages, creates the potential for serious abuses. (5) Actualizing this potential is anonymous Internet use, which has afforded individuals the ability to disseminate distasteful messages to vast audiences without fear of personal accountability. (6) Specifically, Internet users may and are anonymously creating hate sites--websites that engage in hate speech, advocating messages that discriminate against and promote violence or intimidation toward people of a specific religion, race, gender, national origin, sexual orientation, or ethnic background. (7) These sites aim primarily to recruit new members and to spread their messages, as well as to advocate specific acts of violence and criminal activity toward people according to one of the above characteristics. Common tactics take various forms, including offering free downloads of music with hate-filled messages, maintaining racist Internet games that allow players to murder virtual depictions of out-group members, and targeting children through cartoon characters. These messages also often contain inaccurate and misleading information aimed at convincing listeners of a dangerous revisionist history; namely, people with a specific characteristic have caused serious social and economic problems that can only be eradicated by engaging in violence against them.

   This note does not advocate that these sites' expression blindly be deemed constitutionally unprotected. Instead, it proceeds to analyze how the serious need to adopt a proactive deterrent to this Internet hate speech proportionally rises with the likelihood of a society's economic and social forces leading to actualization of these sentiments. Few can argue that the United States is currently engrossed in a period significantly defined by polarized opinions on economic and social issues. Considering especially the influx of hate groups operating in America, it is important to limit the potential of Internet hate sites to cause violent action towards specific groups of people. Recent statistics undisputedly show that these hate sites are increasing steadily, and right-wing extremist group membership has also increased alarmingly. (8) This note aims to analyze what type of regulation of Internet hate sites--if any--would be permitted by United States jurisprudence in order to counteract these trends. Hate speech has historically received heavy First Amendment protection, and any potential regulation must avoid the traditional prohibition of content-based restrictions. Furthermore, there exists little guidance from the courts on whether hate speech on the Internet will be protected as staunchly.

   Part I of this note will discuss the protections afforded to hate speech in the United States, as well as the contrary stance taken by other nations. Part II examines two important exceptions to the prohibition of content-based restrictions of hate speech, and how these exceptions may serve as potential bases for regulating Internet hate sites. Furthermore, Part II explores lower protection for Internet hate speech in two ways: First, Part II(A) discusses whether child Internet users can be considered "captive audiences" on account of the invasiveness of the medium, and whether indecent Internet hate sites can subsequently be restricted in ways that specifically advance their welfare without detracting from their accessibility for adults. Second, Part II(B) inquires into whether restrictions on the content of Internet hate sites could be justified on content-neutral grounds and subsequently be permitted to target whatever "secondary effects" may result from such speech.

   Importantly, these analyses do not focus on whether single speakers of hate can be silenced as a form of government-sponsored censorship. Instead, this note aims to determine whether the manner of such expression can be limited, and whether potential audiences can be controlled--under the principles of the United States Constitution--in order to limit the troubling influx of hate groups and Internet hate crimes. Accordingly, the analyses will not focus on Internet hate sites from the perspective of the individual Internet user, who may be harmed by viewing hate speech directed at them. While these harmful effects cannot be ignored, this note instead focuses on the role that these sites play in increasing membership in hate groups, as well as facilitating hate crimes.

2. EXAMINING THE CURRENT INTERNET HATE SITE CRISIS UNDER FIRST AMENDMENT JURISPRUDENCE

   Hate speech and hate crimes have received different treatment within the United States legal system. Although both the federal government and several states have enacted legislation to address the harmful effects of criminal activity that is specifically motivated by discrimination or hate, (9) its jurisprudence has stood relatively stagnant in the face of mere expressions of hate. Recently, however, this stagnancy has become more apparent due to the rise of right-wing extremists reacting to the increasingly turbulent political climate in the United States. (10) A huge increase in hate-driven websites has spawned, (11) and these sites have joined with the prevalence of anonymous Internet use to increase hate crimes themselves. (12) In light of this trend, Part I examines the current state of hate sites and hate groups, as well as the protections afforded to hate speech both in the United States and in other countries.

   1. The Abundant "Coincidence" of Internet Hate Websites, Hate Groups, and Hate Crimes in the United States

      Haunting are the words of Benjamin Nathaniel Smith, an American who in 1999 carried out a racially-motivated, murderous shooting rampage before killing himself. (13) "It wasn't really 'til I got on the Internet, [and] read some literature of these groups that ... it really all came together.... It's a slow, gradual process to become racially conscious." (14)

      Just as many developing technologies, originally well intended, have spawned some negative consequences, (15) the Internet's potential for instant, utopian communication has begotten significant collateral damage. The internet has successfully helped people to communicate at an instant, and to locate and enjoy the contact of other people with similar interests in ways that may not have been available otherwise. Unfortunately, for some groups in the United States, that shared interest is hatred. Hate groups have utilized the Internet for two distinct purposes: to recruit new members to advance their cause; (16) and to advocate violence against and intolerance of the object of their hatred. (17)

      1. Recruitment

         First, hate groups engage in thorough efforts to recruit new members in order to rectify what they purport are dire problems caused directly by a specific group of people. These sites utilize society's general fear of social, political, and economic uncertainty to recruit these members by blaming these out-groups for any number of social, political, or economic problems. (18) Efforts are directed in large part toward impressionable people--such as those who are lonely or upset--because they are the most susceptible targets to both hate group doctrines and general Internet surfing. (19) Children and youth are particularly targeted since they are often impressionable, lonely, marginalized, and left wanting for a sense of identity and acceptance within a group. (20) In addition, children have not yet gathered the experience or education necessary to deconstruct any inaccurate or misleading information presented to them. (21)

         Accordingly, hate sites are recognizing that the internet is an efficient recruitment tools and are featuring content that is more attractive to children. Typical methods of attraction include cloaking racist and xenophobic messages within music, games, activities, and cartoon characters. (22) In possibly their most deceptive method of recruitment, many hate sites are now disguised as educational websites, offering intentionally misleading "educational" content that misinforms younger viewers under the cloak of legitimate scholarship. (23) Unfortunately, this content...