Hate Speech and the First Amendment;
The Anti-Defamation League Helps Educate
Amendment I of the Constitution of The United States reads:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
In its article “Responding to Extremist Speech Online; Ten Frequently Asked Questions,” The Anti-Defamation League, provides information to help the public better understand how the Constitution regards hate speech on-line as well as how parents, educators and internet service providers can exercise their rights to prohibit or guard against it.
In addressing the FAQ, “What kind of hate speech on the Internet is not protected by the First Amendment” the article clarifies that, while the Constitution protects internet speech that is “merely critical, annoying, offensive or demeaning,” it does not shield those who engage in libelous speech or copyright infringement or those whose writings threaten or harass. “For example, an E-mail or a posting on a Web site that expresses a clear intention or threat by its writer to commit an unlawful act against another specific person is likely to be actionable under criminal law. Persistent or pernicious harassment aimed at a specific individual is not protected if it inflicts or intends to inflict emotional or physical harm. To rise to this level, harassment on the Internet would have to consist of a “course of conduct” rather than a single isolated instance.”
The article also cites examples of offenders who have been successfully prosecuted for making racist threats and those the courts have held liable for encouraging acts of violence on the World Wide Web.
Of particular note are the answers to FAQ’s concerning what Internet users and providers can do to curtail the spread of hate speech and protect our children from exposure. To assist parents, the ADL has developed its own “filter” that can block children’s access to Web sites that “advocate hatred, bigotry or violence towards Jews or other groups on the basis of their religion, race, ethnicity, sexual orientation or other immutable characteristics.” The ADL HateFilterTM can be downloaded from the ADL site and offers the helpful feature of redirecting users who try to access blocked sites to related ADL educational material.
Computer services offered by public and private universities are also open to misuse by hate advocates who attend or are employed by those institutions. Under the FAQ, “May universities prevent the use of their computer services for the promotion of extremist views?” the article clarifies that while public universities, as agents of the government, must follow the First Amendment’s prohibition against speech restrictions, they may consider instituting “content-neutral” regulations:
“For example, a university may limit use of its computers and server to academic activities only. This would likely prevent a student from creating a racist Web site for propaganda purposes or from sending racist E-mail from his student E-mail account. One such policy — at the University of Illinois at Champaign-Urbana — stipulates that its computer services are ‘provided in support of the educational, research and public service missions of the University and its use must be limited to those purposes.’ ”
Private universities, because they are not agents of the government, may forbid users to utilize university equipment or services to engage in offensive speech.
ADL advises that any decision to limit speech on a university campus should be done in consultation with representatives from both the faculty and student body when implementing such policies.
Commercial Internet Service Providers (ISPs) are completely within their rights to prohibit the sending of racist or bigoted messages over their services. According to this FAQ, “Such prohibitions do not implicate First Amendment rights because they are entered into through private contracts and do not involve government action in any way.” ISP’s who institute such policies are encouraged to monitor the use of their services to prevent violation and, should they occur, take action to cancel the accounts of the violators.