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Hate Speech on the Internet and the Law

Posted: September 12, 2006

This speech was delivered by Christopher Wolf, Chair of the Anti-Defamation League Internet Task Force and Chair of the International Network Against Cyber Hate at the 3rd International Symposium on Hate on the Internet sponsored by  B'nai Brith Canada  Institute for International Affairs and League for Human Rights inToronto, Canada on September 12, 2006.

At sessions such as these, hate-filled Web Sites typically are projected on a screen for all to see.  Some of the Web Sites deny the Holocaust and espouse virulent anti-Semitism; others portray gays and lesbians as subhuman in the guise of promoting so-called "family values"; and still other Web Sites contain racial epithets and caricatures.  Audience members almost always have the same reaction to what they see.  When they are finished shaking their heads in disbelief and after they say "disgusting," audience members frequently are heard to exclaim:  "There oughta be a law."

Legislatures around the world have heeded the call for new laws aimed at Internet hate, except notably in the United States where the First Amendment prohibits broad regulation of speech.  The Internet hate protocol to the Cybercrime Treaty is a prime example of a heralded legal solution to the problem.  And even in the United States, while there are not new Internet-specific laws, existing laws against direct threats or incitements to violence or terrorism have been used against online miscreants.

It may surprise you to hear my reaction to the chorus demanding new laws, given that I am an Internet lawyer.  In my professional life, I regularly employ an array of laws to go after violations of the law that appear online.  I was one of the first lawyers, if not the first, to go after illegal downloading and file sharing of music way back in 1996, long before Napster.

And my reaction also may surprise you given that I am Chair of the International Network Against Cyber Hate (INACH), a coalition of NGOs working together to fight Internet hate.

But my response to the visceral calls for new laws to deal with hate speech, is "Not necessarily."  I might even put it more strongly:  "Laws addressed at Internet hate are perhaps the least effective way to deal with the problem, and create a sense of false security promoting inaction and under use of the other tools available to fight online hate."

To be sure, there are clear cases where legal enforcement is absolutely required.  The Web Site of  neo-Nazi Bill White posting civil rights lawyer Richard Warman's address and urging others to take violent action against him is plainly illegal even in the land of First Amendment.  It is a travesty that the Canadian Radio-television and Telecommunications Commission (CRTC) could not fashion an immediate remedy to protect Mr. Warman and his family.  In at least one U.S. jurisdiction, covering California and much of the West, the highest appellate court – the Ninth Circuit – has ruled that specific threats like that addressed to Mr. Warman justifies an injunction shutting down the Web Site containing the threats, as well as millions of dollars in damages.  And that is the right result.

And there also are cases where legal action serves to express decent society's outrage against speech that goes well beyond the pale of what is acceptable in normal discourse, especially in light of recent history.  In countries like Germany and Austria, the enforcement of laws against Holocaust deniers – given the bitterly sad history of those countries – serves as a message to all citizens (especially impressionable children) that it is literally unspeakable to deny the Holocaust given the horrors of genocide inflicted on those countries.  With that said, there are many who believe that prosecutions such as that of David Irving do more to promote his visibility, and to stir up his benighted supporters, than they do to truly quell future hate speech and enlighten the public.

But the reflexive use of the law as the tool of first resort to deal with online hate speech threatens to weaken respect for the law if such attempted law enforcement fails or is used against minor violations.  The case brought against Yahoo! to enforce the French law that prohibits the selling or display of neo-Nazi memorabilia in the end trivialized the speech codes directed at Holocaust deniers, and created a series of precedents that could prove unhelpful in future, more serious prosecutions.

Likewise, prosecutions in the U.S. against persons accused of maintaining Web Sites that promoted terrorism failed when it was demonstrated that the content that triggered the prosecutions appeared elsewhere, unchallenged, in more respectable academic sites.  Those cases demonstrated perfectly that deciding what speech is in or out of bounds can be extremely difficult, especially when on the Internet the very same content can appear in a variety of locations.

Which brings me to my chief objection to the use of the law as the primary enforcement tool:  Given that the U.S. with our First Amendment essentially is a safe-haven for virtually all Web content, shutting down a Web Site in Europe or Canada through legal channels is far from a guarantee that the contents have been censored for all time.  The borderless nature of the Internet means that, like chasing cockroaches, squashing one does not solve the problem when there are many more waiting behind the walls – or across the border.  Many see prosecution of Internet speech in one country as a futile gesture when the speech can re-appear on the Internet almost instantaneously, hosted by an ISP in the United States.

Certainly the prosecutions of Ernst Zundel and Frederick Töben sent messages of deterrence to people that make it their life's work to spread hate around the world that they may well go to jail.  And, again, such prosecutions expressed society's outrage at the messages.  But all one need do is insert the names of those criminals in a Google search bar, and you will find Web Sites of supporters paying homage to them as martyrs and republishing their messages.

And it must be noted that the cross-border prosecutions give support to repressive regimes like China to request international support and assistance in enforcing their laws, which they justify as important as the laws against Holocaust denial but which in fact are laws squelching the free expression of ideas.

I am not saying that law has no role to play in fighting online hate speech – far from it.  I am saying that countries with speech codes should make sure that the proper discretion is employed to use those laws against Internet hate speech, lest the enforcement be seen as ineffectual resulting in a diminished respect for the law.  And I am saying that the realities of the Internet are such that shutting down a Web Site through legal means in one country is far from a guarantee that the Web Site is shuttered for all time.

Thus, the law is but one tool in the fight against online hate.  At the Anti-Defamation League, where I have chaired the Internet Task Force for more than a decade, we believe that the best antidote to hate speech is counter-speech – exposing hate speech for its deceitful and false content, setting the record straight, and promoting the values of tolerance and diversity.  To paraphrase U.S. Supreme Court Justice Brandeis, sunlight is still the best disinfectant – it is always better to expose hate to the light of day than to let it fester in the darkness.  ADL has always believed that the best answer to bad speech is more speech.  Education is a huge part of what we do, because kids are the most impressionable, susceptible victims of hate speech.

And at the ADL, as well as at INACH, through its member organizations, we seek voluntary cooperation of the Internet community – ISPs and others – to join in the campaign against hate speech.  That may mean enforcement of Terms of Service to drop offensive conduct; if more ISPs in the U.S. especially block content, it will at least be more difficult for haters to gain access through respectable hosts.  But in the era of Search Engines as the primary portals for Internet users, cooperation from the Googles of the world is an increasingly important goal.  Our experience at the ADL with Google the site "Jew Watch" is a good example.  The high ranking of Jew Watch in response to a search inquiry was not due to a conscious choice by Google, but was solely a result of an automated system of ranking.  Google placed text on its site that apologized for the ranking, and gave users a clear explanation of how search results are obtained, to refute the impression that Jew Watch was a reliable source of information.

I am convinced that if much of the time and energy spent in purported law enforcement against hate speech was used in collaborating and uniting with the online industry to fight the scourge of online hate, we would be making more gains in the fight.  That is not to say that the law should be discarded as a tool.  But it should be regarded more as a silver bullet reserved for egregious cases where the outcome can make a difference rather than a shotgun scattering pellets but having marginal effect.

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