The explosion of the Internet,
and especially the startling increase in the number of teenagers
and even children online, has raised important concerns among parents
and educators. Among the distractions and diversions along the information
superhighway, there are potent dangers. Much of the attention has
been focused on online pornography and sex predators. Less has been
said of the dangers of hatred and bigotry on the Internet. But the
problem has been well documented. And the multiplying of hate sites
on the Internet is really just the tip of the iceberg.
a marvelous medium for education, communication, entertainment and
commerce, the Internet has a dark side. Hate groups have emerged
from the back alleys of the past to post their hateful ideas online,
in full view of everyone, where they can hide behind their anonymity
while spewing their hatred for a potential audience of thousands,
if not millions. The Internet is a relatively cheap and highly effective
way for hate groups as diverse as the National Alliance and the
Ku Klux Klan, as well as anti-Semites, right-wing extremists, militia
groups and others to propagate their hateful ideas.
it's becoming a powerful recruitment tool for these groups. Where
the activities of hate groups once were limited by geographical
boundaries, the Internet allows even the smallest fringe group to
spread hate and freely recruit members online by tapping into the
worldwide audience that the Web provides. Technology also offers
such groups the ability to post messages in chat rooms and communicate
like never before.
the Anti-Defamation League, which is at the forefront of tracking
this trend of hate online and exposing the phenomenon in numerous
reports, has responded to several incidents where hatred and bigotry
has found its way onto mainstream Internet portals. For instance,
the ADL recently fielded dozens of complaints about the presence
of hate "clubs" on Yahoo, one of the Internet's most popular sites.
Dozens of hate groups had established "clubs" in plain view on Yahoo's
servers. In this case, ADL and Yahoo were able to work together
to pull the plug on these haters, resulting in the company's removal
of some of the most offensive clubs because they stood in violation
of the site's terms of service agreement, which clearly prohibits
one instance where it was possible to rein in white supremacist
and racist groups from spreading racism and bigotry. But in the
vast majority of cases, online hate speech remains protected under
the First Amendment. Hate speech and the many varied forums available
on the Internet for the exchange of information have opened up a
new set of legal quandaries. Many of the thorniest issues surrounding
hate speech ultimately will be decided in the courts.
Assessing the Problem Hate on the Internet
Hate is pervasive on the
Internet, and it takes many forms. Through its Internet Monitoring
Unit, the ADL has documented literally hundreds of hate groups that
maintain a web presence. The ADL's report "Poisoning the Web: Hatred
Online" noted that these groups have become increasingly sophisticated
in their approach. Many hate sites are being specifically designed
to ensnare children.
The virulently anti-Semitic and racist World Church of the Creator, for example,
has in the past maintained a "Kid's Page" complete with apparently
harmless color graphics, crossword puzzles and games. A closer look
revealed the games were laced with racist and anti-Semitic themes.
The World Church of the Creator also posts membership applications and disturbing
images, such as a graphic of a skinhead crushing a Hassidic Jewish
man, with blood dripping from the giant fist. These hateful images
are hardly an isolated phenomenon, nor are they banished to the
farthest fringes of the Web. Any computer user can unwittingly land
at a hate site by typing a few keywords on a search engine. Indeed,
many hate sites are barely a click away, making it easier than ever
for hate groups to prey on unsuspecting computer users, especially
While many hate sites are blatantly racist or bigoted in their approach, other
sites disguise themselves as legitimate sources of information.
There's one site that appears to be an examination of the life of
the civil rights leader, Dr. Martin Luther King, Jr. Any student
doing research on Dr. King who might happen upon this site could
be duped into believing this is a legitimate history. Scrolling
down, the trained observer notices that it really contains racist
propaganda from the National Alliance.
The Internet has also become a haven for Holocaust Deniers, who dispense anti-Semitism
through distorted conceptions of modern history.
The Internet may also provide some hate groups with sources of revenue. The National
Alliance, one of the most dangerous organized white supremacist
groups in the United States, recently purchased a nearly defunct
hate music record label and revived it, taking advantage of the
unsurpassed power of the Internet with a newly designed web site
designed to sell hate music to the masses. The Resistance Records
Web site enables the record label to hawk its wares while spreading
the word about the hate movement to a new generation of potential
Internet Hate Speech and the Law
of this raises the question, what should be done about this spread
of hate through cyberspace? Most people, when they are presented with
the scope of the problem say, "There ought to be a law." That certainly
was the reaction of Congress when it enacted the Communications Decency
Act, which dealt not only with pornography, but also with some extremist
groups, but the U.S. Supreme Court subsequently ruled that the Act was overly broad.
Other attempts to regulate the Internet in the United States have
virtually all been struck down because of the same reason. It's very
hard to create a prohibition or a prescription against the free flow
information. You have to deal with hate speech in other, more creative
method available to individual computer users is to deny the bigots
access to home computers. ADL has developed a HateFilter,
which is designed for parents to use in home computers to filter
out some of the most offensive hate sites. The software is primarily
intended for use as an educational tool. It blocks access to sites
and redirects the user to information about hate groups at the ADL
are legal remedies, however, when hate speech crosses the line into
threats and intimidation. Under the law, threats are not protected
under the First Amendment. This applies to threats involving racial
epithets or those motivated by racial animus. A threatening private
message sent over the Internet to a victim, or even a public message
displayed on a web site describing intent to commit acts of racially
motivated violence, can be prosecuted under the law. Similarly,
harassing speech is not constitutionally protected because the speech
in question usually amounts to impermissible conduct, not just speech.
harassment and threats must be directed at specific individuals.
Blanket statements expressing hatred of an ethnic, racial or religious
group cannot be considered harassment, even if those statements
cause emotional distress.
unprotected activity is incitement to violence. The U.S. Supreme
Court ruled in the case of Brandenburg v. Ohio that there
is a line between speech that is "directed to inciting or producing
imminent lawless action..." and speech that is not likely to incite
such action. Still, the Brandenburg standard is a high bar
to meet. Online hate speech will rarely be punishable under this
the concept of "group libel" -- comments directed toward Jews, blacks
or any other religious or racial group -- cannot be used as a weapon
against haters who spew invective online or off. The courts have
repeatedly held that libel directed against religious or racial
groups does not create an actionable offensive. Libel on the Internet
directed toward a particular person or entity, of course, is actionable
under the law just as libelous remarks uttered in any public forum.
hate speech online is not in itself punishable, it may provide evidence
of motive in a hate crime case. Forty-two states and the District
of Columbia currently have some form of a hate crime law on the
books that enable prosecutors to seek increased penalties when a
victim is targeted in a bias crime. When hate speech on the Internet
inspires violence, the evidence could aid the prosecution in seeking
an increased penalty under the hate crimes statute. While this concept
has only been applied to movies thus far, there have been an increasing
number of crimes being committed by perpetrators who read hate literature
online. The racially motivated shooting of blacks, Asian-Americans
and Jews in suburban Chicago over July Fourth weekend in 1999 was
carried out by a member of World Church of the Creator, Benjamin
Nathaniel Smith, who, according to law enforcement officials, has
admitted to reading hate literature online. There have been similar
cases where perpetrators of hate crimes have found inspiration in
literature easily obtainable on the Internet.
with laws against intimidating speech, the anonymity of the Internet
makes it difficult to track down and prosecute perpetrators of threatening
messages. This proved true in a recent case involving a Detroit
boy who received a barrage of anti-Semitic death threats in his
mailbox. The 11-year-old, who innocently stumbled upon a hater while
surfing through a public chat area, immediately reported the incident
to his parents, who notified the local police. Not surprisingly,
their investigation turned up few clues as to the source of the
anonymous threats. Eventually, it was determined the source was
disguised, quite possibly outside of the country, and obviously
well beyond the reach of local authorities.
there have been other successful prosecutions against senders of
hate mail. A student at the University of California in Irvine who
transmitted threatening e-mails to Asian students was caught and
convicted of a civil rights violation. There have been other convictions.
the law isn't always a panacea to hate. The best antidote to hate
speech, ADL maintains, is more speech. Public awareness of hate
on the Internet, whether through reports and studies or media coverage,
can go a long way to help sensitize the public, private Internet
companies, and government regulators to the problem.
summary of groundbreaking cases involving online hate speech and
a legal analysis of issues relating to hate on the Internet is available
in the ADL report, "Combating
Extremism in Cyberspace: The Legal Issues Affecting Internet Hate
Internet Service Providers A Link to Hate
Internet access providers have policies that regulate offensive
speech, most do not ban hate speech outright. Some providers cite
their First Amendment rights as reason enough not to interfere with
content on their servers.
web sites, regulating content remains a work in progress. Today,
Internet providers such as America Online have clear guidelines
regulating what is acceptable and what is not acceptable behavior
on their servers. An AOL subscriber can lose privileges simply because
of a complaint from another user. AOL and others have worked closely
with ADL to respond responsibly to hate on their servers.
Internet service providers have been less willing to establish firm
policies against hate speech, citing the First Amendment in their
defense. For example, Earthlink of Pasadena, Calif., states in its
"acceptable use policy" that the site "supports the free flow of
information and ideas over the Internet" and does not actively monitor
the content of web sites it hosts. Although Earthlink makes clear
that illegal activities are not permitted on its site, that one
caveat didn't stop the neo-Nazi web site "For Folk and Fatherland"
from establishing a home page through Earthlink. The web site reprints
Hitler's "Mein Kampf" and more than two dozen of Hitler's speeches.
It's not illegal activity, but the message is clearly hateful.
groups that do find trouble gaining access to mainstream Internet
service providers can turn to one of a number of renegades of the
Web, hate institutions such as Don Black's "Stormfront." Since becoming
the first hate site to go live in 1995, "Stormfront" has leapt into
the business of hosting extremist sites, describing itself as "an
association of White activists on the Internet whose work is partially
supported by providing webhosting for other sites." At least one
extremist bumped from a mainstream online service has taken refuge
on Black's server. Alex Curtis' "Nationalist Observer" site, once
hosted by America Online, now resides at "Stormfront." The implication
is clear: No matter how many mainstream Internet providers rebuff
the bigots, those determined enough to establish a racist site will
be able to find a willing host.
Conclusion: Hate A Growing Problem on the Internet
Combating online extremism
presents enormous technological and legal difficulties, and as noted
earlier, the few examples provided here are only the tip of the iceberg.
Even if it were electronically feasible to keep sites off the Internet,
the international nature of the medium makes legal regulation virtually
impossible. And in the United States, the First Amendment guarantees
the right of freedom of speech regardless of what form that speech
As a result, governments, corporations and people of goodwill continue to look
for alternative ways to address the problem.
Christopher Wolf, is a partner with the law firm of Proskauer Rose LLP, in Washington,
D.C. Considered one of America's leading practitioners in the area
of high technology law, he has litigated cutting edge Internet issues
involving online privacy, jurisdiction over web site operations,
domain names and protection of intellectual property. Mr. Wolf is
chairman of the Anti-Defamation League's Internet Policy Committee.
This article was originally published on GigaLaw.com in July 2000.