Abstract
This essay expounds on Raphael Cohen-Almagor’s recent book, Confronting the Internet’s Dark Side, Moral and Social Responsibility on the Free Highway, and advocates placing narrow limitations on hate speech posted to social media websites. The Internet is a limitless platform for information and data sharing. It is, in addition, however, a low-cost, high-speed dissemination mechanism that facilitates the spreading of hate speech including violent and virtual threats. Indictment and prosecution for social media posts that transgress from opinion to inciteful hate speech are appropriate in limited circumstances. This article uses various real-world examples to explore when limitations on Internet-based hate speech are appropriate. In October 2015, twenty thousand Israelis joined a civil lawsuit filed against Facebook in the Supreme Court for the State of New York. Led by the civil rights organization, Shurat HaDin, the suit alleges Facebook allows Palestinian extremists to openly recruit and train terrorists to plan violent attacks calling for the murder of Israeli Jews through their Facebook pages. The suit raises important questions, amongst them: When should the government initiate similar suits to impose criminal sanctions for targeted hate speech posted to Facebook? What constitute effective restrictions on social media that also balance society’s need for robust dialogue and free communication, subject to limitations reflecting a need for order and respect among people? Our essay progresses in four stages. First, we examine philosophical origins of free speech and the historical foundations of free speech in the United States. Second, we provide an overview of American free speech jurisprudence. Third, we address particular jurisprudence that provides a framework for imposing limitations on free speech in the context of social media. American history and jurisprudence embrace free speech as a grounding principle of democracy, yet simultaneously subject speech to limitations. Finally, through a comparative exploration of real-world examples, we address the narrow instance when limitations on inciteful and targeted hate speech are appropriate.
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Notes
See generally Raphael Cohen-Almagor, Introduction: Confronting the Internet’s Dark Side, Moral and Social Responsibility on the Free Highway (2015) [hereinafter Confronting the Internet’s Dark Side].
The First Amendment of the U.S. Constitution guarantees the right to free speech. International conventions such as the International Covenant on Civil and Political Rights (ICCPR) similarly recognize it.
Jeremy Waldron, The Harm in Hate Speech 4 (Harvard Univ. Press 2012).
Id. at 15.
First Amendment Center, State of the First Amendment 2009 (2009) available at http://s111617.gridserver.com/madison/wp-content/uploads/2011/03/SOFA2009.analysis.tables.pdf.
Id. at 2.
Id. at 6.
Id. at 448.
See id. at 447–48.
Brandenburg, supra note 54.
Id. at 446.
Id. at 569. Chaplinsky, 315 U.S. at 569.
Id. at 571–72.
Street v. New York, 394 U.S. 576 (1969).
Cohen v. California, 403 U.S. 15 (1971).
R.A.V. v. City of St. Paul, 505 U.S. 377, 379 (1992).
Id. at 393–96.
Watts v. United States, 394 U.S. 705, 705 (1969).
Id. at 708.
Virginia v. Black, 538 U.S. 343, 359 (2003).
Cohen-Almagor defines hate speech as “a bias-motivated, hostile, malicious speech aimed at a person or group of people because of some of their actual or perceived innate characteristics. It expresses discriminatory, intimidating, disapproving, antagonistic, or prejudicial attitudes towards the disliked target group.” Confronting the Internet’s Dark Side at 148.
David L. Hudson Jr., Hate Speech and Campus Speech Codes, First Amend. Center (Sep. 13, 2002), http://www.firstamendmentcenter.org/hate-speech-campus-speech-codes.
Chaplinsky, 315 U.S. at 572.
UWM Post v. Board of Regents of U. of Wis., 774 F.Supp. 1163, 1174 (1991).
Burson v. Freeman, 504 U.S. 191 (1992).
Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).
Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Vill. of Stratton, 536 U.S. 150, 175 (2002).
United States v. O’Brien, 391 U.S. 367, 382 (1968).
See generally Buckley v. Valeo, 424 U.S. 1 (1976).
Confronting the Internet’s Dark Side at 148.
Contributed by Jonathan Vick, Assistant Director, Cyberhate Response, Anti-Defamation League. Mr. Vick’s substantive contribution of pivotal factors to assess when limiting speech are described herein.
See e.g., Stormfront.org, a neo-Nazi forum that predates the Internet, and is run by a former Klu Klux Klan Grand Dragon, David Duke. The White Supremcisit group makes its online home at the stormfront.org website.
Anonymous. Private e-mail exchange conditioned on guarantee of anonymity, records in authors’ papers.
Confronting the Internet’s Dark Side at 15, 230.
Id. at 148, 203.
See generally id. at 230 (discussion on State Responsibility); see, e.g., Yahoo! Inc. v. La Ligue Contre Le Racisme et L’Antisemitisme, 169 F.2d 1181 (N.D.Cal. 2001), rev’d., 433 F. 3d 1199 (9th Cir.), cert. Den. 547 U.S. 1163 (2006)..
Cited contributor is anonymous.
About the Anti-Defamation League, ADL, http://www.adl.org/about-adl/.
Id.
Oberlin College in Ohio was recently at the center of a social media controversy regarding Facebook postings made by one of its Professors, Joy Karega. Karega posted a number of anti-Semitic statements on her Facebook page. Oberlin College is a private actor and the issue is not a question in which the government may intervene.
Apologetic Sam Houston State Student Won’t Get Punished by Sam for Tweet, KBTX http://www.kbtx.com/home/headlines/Apologetic-Sam-Houston-State-Student-Wont-Get-Punished-by-Sam-for-Tweet-324742191.html.
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Professor of Law, S.J. Quinney College of Law, University of Utah. Elizabeth A. Park, J.D. May 2016, S.J. Quinney College of Law, University of Utah, served as a research assistant for select portions of this essay.
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Guiora, A., Park, E.A. Hate Speech on Social Media. Philosophia 45, 957–971 (2017). https://doi.org/10.1007/s11406-017-9858-4
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DOI: https://doi.org/10.1007/s11406-017-9858-4