Computer Crime and Intellectual Property Section

INTRODUCTION

The Internet has undeniably positive implications for human rights and freedom. As a technological tool that spans continents, offering near-instantaneous availability of information to people around the globe, the Internet offers a means both of bridging cultural divides and promoting cultural diversity. Its impact to date on the free exchange of ideas can barely be overstated; and it promises even greater benefits to individual users and national governments alike in the years to come.

However, like the movable-type printing press, its technological forebear over five centuries ago, the Internet is simply a tool subject to the purposes of its users. The advent of the printed word brought about enormous -- and enormously beneficial -- social and economic change through tracts proposing new political, scientific, and artistic ideas. But those who followed in Gutenberg's footsteps have also pursued less noble paths from time to time. History is full of notorious books -- and many more that have passed into well-deserved obscurity -- whose authors advocated ideas we today find distasteful and odious.

And so it is unsurprising that today we find the Internet, like the printing press, used to expound not only men's best thoughts but also their worst. Unfortunately, expressions of racial animus can also be found amid the wealth of useful information and constructive discussion on line. The challenge facing this Seminar, as well as the government of every nation connected to the Internet, is to decide how best to respond.

In doing so, one must recognize that a global computer network means content is available to, and located in, countries with diverse cultures, especially legal cultures. This paper summarizes briefly the key principles of law in the United States relating to racist speech and the difficulties in attempting to impose legal regulation or prohibition upon it.

THE U.S. CONSTITUTION: FUNDAMENTAL PRINCIPLES

The starting point for any discussion of the rights of U.S. citizens, and of the powers (and restrictions) that attach to the U.S. government, is the U.S. Constitution. That document, including its 27 amendments, sets forth the fundamental legal principles of American society.

The role of race and racism in American social and legal history is a long one, and is reflected in many of the Constitution's amendments. Most prominently, a series of amendments adopted almost 130 years ago -- in the aftermath of the Civil War -- enshrines values that lie at the heart of racial equality.

Specifically, the 14th Amendment forbids the government from "deny[ing] to any person . . . the equal protection of the laws," a clause that has repeatedly been applied to protect racial and ethnic minorities from receiving unequal treatment at the hands of government. An accompanying amendment, the 15th, explicitly protects the right of citizens to vote regardless of race.

Of even greater importance to the issues under discussion at this Seminar, however, is the U.S. Constitution's First Amendment, which provides in relevant part that "Congress shall make no law . . . abridging the freedom of speech, or of the press . . . ." Through its explicit guarantee of freedom of expression, the First Amendment establishes a general rule that neither the U.S. government nor the governments of its states may criminalize speech (or burden it, as by imposing civil penalties) on the basis of content. Like the Universal Declaration of Human Rights, which also recognizes a right to free expression, the First Amendment proceeds from the understanding that governments must permit vigorous (and often competing) speech in the "marketplace of ideas."

Of course, this general rule is subject to exceptions. Over the course of American legal history, our highest judicial body -- the Supreme Court -- has identified several categories of speech that receive reduced (or no) protection under the First Amendment. These include obscenity, child pornography, defamatory statements, fraudulent statements, "fighting words," and threats or harassing communications. As to each of these categories, the Court has concluded that such speech plays no role in the "marketplace of ideas." Over 50 years ago, the Court described such speech as follows:

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. . . . It has been well observed that such utterances are no essential part of any exposition of ideas, and are 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.

Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942).

RACIST SPEECH AND FREE EXPRESSION

As to other classes of speech, however, the First Amendment commands that government refrain from penalizing one viewpoint at the expense of another. This is the case even where the "exposition of ideas" includes expression that the average citizen might find irrational or even repugnant.

For example, someone may ardently believe that the Sun revolves about the Earth, and may even exhort others to adopt this credo. Notwithstanding the universal scientific understanding to the contrary, the First Amendment requires that this person be allowed to speak and publish his geocentric theories freely, on the grounds that it is not the proper function of government to "drive certain ideas or viewpoints from the marketplace." Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 116 (1991).

Rather, the animating principle of First Amendment jurisprudence is that such expression will meet with opposing expression -- often described succinctly as "more speech" -- and that citizens may discern for themselves the truth or falsity of the contending viewpoints. This tolerant attitude to expression finds its roots deep in the traditions of humanism itself, which proceeds from the fundamental belief that each person is (and must be) a moral actor. Under this philosophical approach, it is not the role of the state to dictate the views a citizen must hold; rather, each person must exercise his innate capacity for independent reason. As a corollary, however, government must accept that not every person will arrive at the same judgment.

This is precisely the relation in which the First Amendment stands to racist speech, whether it occurs on the Internet or in the physical world. Even where the United States government finds the views expressed to be misguided and repugnant -- and surely those are singularly appropriate words to describe racism -- our Constitution commands that we neither prohibit nor regulate speech merely "because of disapproval of the ideas expressed." R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992).

Thus, in its 1949 decision in Terminiello v. City of Chicago, the U.S. Supreme Court reversed the conviction of an orator for "disturbing the peace." As the Court described the circumstances, in his public oration the defendant had "vigorously, if not viciously, criticized various political and racial groups whose activities he denounced as inimical to the nation's welfare." 337 U.S. 1, 3 (1949). Moreover, this fiery rhetoric issued in the face of over one thousand protesters gathered outside the hall in opposition to the speaker's views.

But Terminiello's expression of these hateful views could not, according to the Court, support imposition of criminal penalties. As the Court observed,

The vitality of civil and political institutions in our society depends on free discussion. . . . [I]t is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected. The right to speak freely and to promote diversity of ideas and programs is therefore one of the chief distinctions that sets us apart from totalitarian regimes.

Accordingly, a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects . . . .

Terminiello, 337 U.S. at 4.

This protective treatment of provocative or offensive expression is not restricted to speech that disparages individuals or racial and ethnic groups. It has been applied equally to speech emphatically critical of the U.S. itself and its political institutions.

Most obviously, in the past decade the Supreme Court has ruled not once, but twice, that burning or desecrating the U.S. flag is expressive activity fully protected by the First Amendment. See United States v. Eichman, 496 U.S. 310 (1990); Texas v. Johnson, 491 U.S. 397 (1989). It is perhaps difficult for someone outside the U.S. to understand the intense emotions excited by this type of conduct (and, indeed, by the Court's decisions affording it legal protection). Suffice it to say that many Americans found flag-burning a deeply personal affront. But it was for precisely that reason, the power of this symbolic act to communicate an idea and to provoke a reaction, that our Supreme Court found this expression to fall within the core protection of the First Amendment.

Advocacy of Illegal Conduct

The broad speech guarantee of the First Amendment has been interpreted to extend well beyond the expression of personally held beliefs. In addition, it extends in many cases to speech advocating conduct even when the conduct itself would be illegal.

Thus, in the landmark decision in Brandenburg v. Ohio, 395 U.S. 444 (1969), the U.S. Supreme Court held unanimously that "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless actions and is likely to incite or produce that action." Id. at 447 (footnote omitted). Because this test requires proof of both an intent and a likelihood that the speech will incite imminent unlawful action, there has never been a case in which the mere publication of written materials was found to be a punishable incitement offense. Rather, Brandenburg's rule permitting prosecution has typically been applied in cases where a speaker urges an already agitated mob to commit illegal acts (such as assault on a passing victim).

As a result, the vast majority of the racist propaganda found on the Internet today could not be made the object of U.S. criminal sanctions or other disfavored legal treatment. A page on the World Wide Web, even one advocating the supposed benefits of achieving "racial purity," lacks the potential for imminent incitement required under the Brandenburg exception.

"Fighting Words"

For similar reasons, racist speech on the Internet -- even when it is directed toward a specific victim -- is unlikely to fit within the "fighting words" exception to the First Amendment. Under that principle, our government may punish that limited class of speech "likely to provoke the average person to retaliation, and thereby cause a breach of the peace." Chaplinsky v. New Hampshire, 315 U.S. 568, 574 (1942).

Because this exception, which has rarely been invoked in the past five decades of American law, is founded on the risk of immediate physical violence, it is hard to imagine its application to cyberspace. Potential antagonists have no physical contact whatsoever in the online sphere, and indeed may be separated by hundreds or thousands of miles in the physical world.

Threats and Harassment

It is well settled that threats of harm (physical or otherwise) receive no First Amendment protection, and this is no less true for threats involving racial epithets or those motivated by racial animus. Thus, a threatening electronic mail message sent to a victim, or even a public announcement (via the World Wide Web) of an intention to commit acts of racially motivated violence, could in many cases be punished.

Even here, however, the Constitution has been construed as requiring that any such punishment be applied only to "true threats." Thus, in Watts v. United States, 394 U.S. 705 (1969), the U.S. Supreme Court upheld the constitutionality of a federal law against threatening the President, but in the same case vacated the defendant's conviction as inconsistent with the First Amendment. (The basis for the prosecution was a statement by Watts that if he were ever conscripted into the U.S. Army, the first person he'd look for in his gunsights would be the President.)

As a general rule, hyperbolic, conditional, or jesting "threats," and those which imply action only at an uncertain and remote future time, cannot qualify as "true threats." Equally important is the principle that mere vehement denunciation or disparagement is not a punishable "threat"; rather, there must be an express or implied promise to engage in conduct that will injure the intended victim.

A similar set of rules applies to speech that descends into harassment. Repeatedly targeting an individual as the focus of harassing "speech" is not a constitutionally protected activity under U.S. law. However, the conduct must go beyond speech which simply angers or distresses: it must be sufficiently persistent and pernicious as to inflict (or be motivated by a desire to inflict) substantial emotional or physical harm. In many cases, U.S. laws prohibiting harassment require a "course of conduct" on the part of the offender.

Moreover, U.S. law does not recognize the notion of "harassment" directed at a general class of persons (such as the members of a particular racial group). Thus, a World Wide Web page that makes false and disparaging claims about an entire racial group cannot be considered "harassment" under U.S. law, even where the publisher's sole intent is to inflict emotional distress on the members of that group.

ADDITIONAL LIMITING DOCTRINES:

OVERBREADTH & UNEQUAL BURDENS ON CLASSES OF UNPROTECTED SPEECH

Even where racist speech crosses into conduct (such as threats or harassment) that may be punished consistent with the First Amendment, two important legal principles limit the extent to which government may criminalize such speech. First is the doctrine of "overbreadth." This doctrine holds that where a statute imposes penalties on both protected and unprotected speech, the statute is invalid in its entirety if it affects a substantial amount of protected speech. See Broadrick v. Oklahoma, 413 U.S. 601 (1973).

For example, consider a law which makes it a crime "to vex or irritate another person." Clearly, there are many types of conduct within the scope of this law that may properly be punished, such as "irritation" through physical assault or even threats of harm. However, because the statute also covers many kinds of "irritation" arising from First Amendment-protected expression -- for example, acerbic criticism of opposing political or religious viewpoints -- the statute is plainly unconstitutional and may not be enforced at all.

The justification for invalidating the entire statute is that protected speech would otherwise be "chilled." As the U.S. Supreme Court has said, "the possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted." Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973).

A second, separate principle of U.S. constitutional law makes it difficult to single out for punishment specific types of otherwise unprotected speech. For instance, as noted above, threats of physical harm may be punished without violating the First Amendment. However, U.S. government may not single out "threats of harm involving ethnic slurs."

A recent U.S. Supreme Court case -- involving grossly offensive racist conduct -- illustrates both of these rather rarefied legal doctrines. In 1990, several juveniles erected a crude wooden cross in the yard of a neighboring black family, and set fire to the cross. The local authorities in Minnesota charged them under an ordinance making it a crime to engage in expressive conduct that "arouses anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender

. . . ."

After being convicted of this crime, one of the defendants appealed to the U.S. Supreme Court, whose nine Justices all agreed that the statute was constitutionally defective. See R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). According to a five-member majority of the Court, even if the law was read as relating solely to "fighting words," it failed the test of the First Amendment because it did not apply to all types of "fighting words."

As the Court observed, "[t]hose who wish to use 'fighting words' in connection with other ideas--to express hostility, for example, on the basis of political affiliation, union membership, or homosexuality--are not covered" by the penalties of the challenged law. R.A.V., 505 U.S. at 391. As a consequence, the majority concluded that the ordinance impermissibly imposed "special prohibitions on those speakers who express views on disfavored subjects." Id.

The remaining four members concurred in the view that the Minnesota law was unconstitutional, but adopted a different analysis. In their view, the law suffered from the "overbreadth" defect described above: "Although the ordinance . . . reaches categories of speech that are constitutionally unprotected, it also criminalizes a substantial amount of expression that--however repugnant--is shielded by the First Amendment." R.A.V., 505 U.S. at 413 (White, J., concurring opinion).

In effect, these four members of the Court viewed the law's ban on arousing "anger, alarm, or resentment" as impermissibly applicable to "expressive conduct that causes only hurt feelings, offense, or resentment, [speech which] is protected by the First Amendment." R.A.V., 505 U.S. at 414 (White, J.).

In understanding R.A.V., it is surely worth emphasizing the following: every member of the Court recognized that the defendant's conduct could be constitutionally punished under a variety of other laws (such as those prohibiting arson or terroristic threats). And in fact, less than a year after issuing its opinion in R.A.V., the Supreme Court ruled unanimously that the First Amendment allows enforcement of a law punishing physical assault more severely where the assailant acts on the basis of racial hatred. See Wisconsin v. Mitchell, 508 U.S. 476 (1993).

CONCLUSION

As the foregoing should make clear, the U.S. government (and those of its component States) is forbidden in most cases from taking any legal steps to suppress the expression of racist views. But while the First Amendment bars the latter, it does not prevent our government from denouncing racism and seeking to promote racial equality through competing speech.

In the U.S. legal tradition, the proper response to racist books is not to ban or to burn the offending matter. Rather, it is to leave open avenues of expression for a diverse array of views, with the knowledge that racist dogma will be soundly rebutted. In our tradition, it is only through that clash of views in vigorous debate, and not through government censorship, that equality is well served. That principle -- one which accords freedom of expression the highest respect -- applies with equal force to the Internet.