Not Your Father's Marketplace of Ideas: Hate Speech and the Fraudulent Marketplace of Ideas Created by Social Media

• Jurisdiction: United States,Federal
• Citation: Vol. 34 No. 1
• Publication year: 2020

Not Your Father's Marketplace of Ideas: Hate Speech and the Fraudulent Marketplace of Ideas Created by Social Media

George Mixon

NOT YOUR FATHER'S MARKETPLACE OF IDEAS: HATE SPEECH AND THE FRAUDULENT MARKETPLACE OF IDEAS CREATED BY SOCIAL MEDIA

"It's all there specifically to kill people," Devon Arthurs told police after they found homemade bomb-making materials, two large boxes of live ammunition, a shotgun, an AK-47 assault rifle, a framed photograph of Oklahoma City Bomber Timothy McVeigh, a "trove of neo-Nazi and white-supremacist propaganda," and the bodies of Arthurs' two roommates.¹

Introduction

The murder of Devon Arthurs's roommates was the culmination of Arthurs being radicalized into the world of white supremacist, neo-Nazis who dominated alt-right social media forums and websites where Arthurs spent a considerable amount of time.² Right-wing violence, white supremacy, and racially-motivated injustice hold a vital—but vile—place in the history of both the United States and Germany. Hate speech and dissemination of information advocating dogmas like white supremacy, however, are regulated differently in these two countries.

In recent years, racially-motivated, hate-based crimes have been on the rise, both in the United States and abroad.³ From 2000 to 2016, white supremacists were responsible for more homicides than any domestic extremist group in the country.⁴ From 2008 to 2016, right-wing—including white supremacist—attacks and violent events outnumbering such actions by Islamic extremists almost two-to-one.⁵ The Global Terrorism Database operated by the University of Maryland defines right-wing extremism as, "violence in support of the belief that personal and/or national way of life is under attack" and is "[c]haracterized

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by ... racial or ethnic supremacy or nationalism ... and/or belief in conspiracy theories that involve grave threat to national sovereignty and/or personal liberty."⁶ From 2008 to 2016, left-wing motivated violent events made up less than ten percent of all domestic terror incidents.⁷ Though they occur more frequently, violent incidents by right-wing and white supremacist groups were thwarted less often than Islamic motivated attacks, indicating a misapplication of resources.⁸ Many theories behind the disparity may be envisaged; the pragmatic takeaway is that white supremacy poses a threat to the United States that is not being adequately addressed and law enforcement is devoting less than sufficient resources.⁹

Even before taking office, the Trump Administration began working on plans to "redirect national-security resources away from white supremacists to focus solely on Islamic terrorism."¹⁰ In 2016, the Office of Community Partnerships, which houses the Countering Violent Extremism Task Force, created by President Barack Obama, had a 16 person staff, with 25 additional contractors, and a $21 million budget tasked with preemptively stopping acts of violent extremism.¹¹ By 2018, the office was reduced to eight employees working with less than $3 million meaning that "[e]ffectively, it no longer exists" according to a former Department of Homeland Security official.¹² Such a claw-back of resources is wholly inappropriate given the dangers of the digital world in which speech takes place today.

The "marketplace of ideas" envisioned by Justice Oliver Wendall Holmes in Abrams v. United States, in which the "test of truth is the power of the thought to get itself accepted in the competition of the market," is no longer limited to

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newspapers, radio and television broadcasts, and in-person word-of-mouth.¹³ The internet and social media can connect and foster interactions and communications with people and points of view in previously unimaginable ways. The ability to connect with others around the world, however, is not without drawbacks. For all of the good that can come from the diversity of thought and exposure to different ideals, the Internet also includes "the depraved."¹⁴ The Internet is seemingly anonymous by default and thus has become a "valuable means of communication for those of ill will."¹⁵ According to George Selim, the former head of the Countering Violent Extremism Task Force, the "technical capability" and "social media savvy" have coincided with an increase in extremism, and "the mainstreaming of hate and extremism as part of our political discourse ... allows for ... bigots to better connect and organize online."¹⁶

This is not your father's marketplace of ideas.¹⁷

In Germany, Holocaust denial and similar hate speech are not protected under the German Constitution.¹⁸ This Comment will address whether similar white supremacist and Nazi hate speech, when spread through social media companies like Facebook, are an unprotected form of speech subject to content-neutral time, place, and manner regulation by Congress.¹⁹ This Comment will then address how white supremacist hate speech, distributed and circulated through social media platforms, can be regulated under the Commerce Clause if their information distribution mechanism, like the "newsfeed" on Facebook, algorithmically displays content based on user engagement instead of, for example, the time at which a post was published.

Part I details the background and history of hate speech in the United States and Germany, the rising importance of the internet, and in particular social media, compared with the information dissemination methods and capabilities of the past, the theory and function behind user-generated algorithms in social

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media, and the Commerce Clause as it relates to the transmission of data. Part III will discuss the rise of an insular right-wing media ecosystem that has come about in recent decades. Part IV details a November 2018 district court opinion addressing the use of social media by white supremacists.

Part IV will address the similarities between American and German jurisprudence regarding hate speech, and how American jurisprudence is primed to adopt a view similar to that of Germany. This section will show that white supremacist and Nazi hate speech is not a protected class of speech in the United States and is subject to content neutral time, place, and manner regulation. Part V will then discuss how white supremacist and Nazi hate speech on social media platforms could be regulated under the Commerce Clause.

I. Background

A. The History of Hate Speech Regulation in the United States and Germany

Regulation of hate speech in both the United States and Germany grew out of the worldwide geopolitical shift after World War II. However, forms and categories of hate speech as well as the reasons and bases upon which hate speech can be regulated in each country differ. Despite this divergent evolution, both the American and German philosophies regarding freedom of speech grow partly out of each countries' history and relationship with oppressive governmental regimes. This reliance on history has led to similar thinking and reasoning that has ultimately been interpreted differently by each countries' courts.

This Section will detail the evolution of hate speech regulation in the United States with particular emphasis on the doctrines of imminent lawless action, fighting words, content neutrality, and true threats. This section will then address the development of hate speech regulation in Germany with emphasis on the outlawing of Holocaust denial and other Nazi-related speech.

1. Hate Speech in America

The modern era of hate speech regulation arose in the midst of the Vietnam War. In 1969, the Supreme Court in Brandenburg v. Ohio held that an Ohio law criminalizing the advocacy of violence for political purposes violated the First Amendment.²⁰ In Brandenburg, the Court overturned the conviction of a Ku

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Klux Klan leader who was filmed using racist and anti-Semitic speech in the presence of firearms.²¹ In a per curium opinion, the Court created the imminent lawless action test under which the First Amendment generally does not allow a State to ban or prohibit one from advocating for the "use of force or law violation."²² However, the Court carved out an exception for when "such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."²³

Prior to Brandenburg, in Chaplinsky v. New Hampshire, the Court indicated that there is no absolute right to freedom of speech.²⁴ The Court asserted that "the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace" are not protected classes of speech because they are not an "essential part of any exposition of ideas."²⁵ The Court considered those classes of speech to be "of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."²⁶

The next significant development in hate speech-related First Amendment jurisprudence came in R.A.V. v. City of St. Paul—the test of content-neutrality.²⁷ The Court declared unconstitutional a Minnesota statute that banned acts of cross-burning because the Government cannot arbitrarily draw content-based distinctions in its regulation of speech.²⁸ The majority created the "content neutrality" doctrine which stand for "the idea that the government has no right to discriminate against speech on the basis of its content."²⁹ According to content neutrality, there is a presumption against content-based regulations, though, exceptions do exist.³⁰ Justice Scalia, writing for the majority, detailed two instances in which content-based distinctions are permissible.³¹ One, "when the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is prescribable" there is "no significant danger of idea or

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view-point [sic] discrimination."³² Two, if the...