Internet Hate Speech and the First Amendment, Revisited
Baumrin, Julian, Rutgers Computer & Technology Law Journal
I. INTRODUCTION II. EXAMINING THE CURRENT INTERNET HATE SITE CRISIS UNDER FIRST AMENDMENT JURISPRUDENCE A. The Abundant "Coincidence" of Internet Hate Websites, Hate Groups, and Hate Crimes in the United States 1. Recruitment 2. Advocating Violence 3. Statistics B. Introduction to United States' Approach to Hate Speech: Advancing the Marketplace of Ideas by Prohibiting Content-Based Restrictions 1. First Amendment Protection of Hate Speech & Two Important Exceptions to Prohibition of Content-Based Restrictions C. Internet Hate Speech in the United States: First Amendment & Federal Statutes 1. Juxtaposition Between United States' and International Approach to Hate Speech III. RETHINKING THE UNITED STATES' APPROACH TO ANONYMOUS INTERNET HATE SPEECH A. Revisiting Reno v. ACLU: Internet as an "Invasive" Medium 1. The Internet is an Invasive Medium 2. Analyzing these trends under FCC v. Pacifica and Reno v. ACLU 3. Preventing Children's Accidental Viewing of Indecent Internet Material: Creating New Generic Top-Level Domain to Aid Content-Filtering Technology B. Revisiting R.A.V. for Regulation of "Secondary Effects" of Hate Speech Websites 1. Internet Anonymity, Its Benefits, and Its Drawbacks 2. Secondary Effects of Hate Speech Websites 3. First Amendment Protection of Anonymous Speech, and its Application to the Internet IV. CONCLUSION
Heralded as one of the most important inventions by the human species, (1) the Internet has provided for the facilitation of viewpoint-sharing, personal communication, education, (2) and economic development of corporate endeavors. (3) The Internet engenders freedom of expression by convening a diverse array of people and viewpoints together for discourse in a marketplace of ideas, (4) but the relative inexpensiveness and efficiency of Internet speech, as well as the pervasiveness of its messages, creates the potential for serious abuses. (5) Actualizing this potential is anonymous Internet use, which has afforded individuals the ability to disseminate distasteful messages to vast audiences without fear of personal accountability. (6) Specifically, Internet users may and are anonymously creating hate sites--websites that engage in hate speech, advocating messages that discriminate against and promote violence or intimidation toward people of a specific religion, race, gender, national origin, sexual orientation, or ethnic background. (7) These sites aim primarily to recruit new members and to spread their messages, as well as to advocate specific acts of violence and criminal activity toward people according to one of the above characteristics. Common tactics take various forms, including offering free downloads of music with hate-filled messages, maintaining racist Internet games that allow players to murder virtual depictions of out-group members, and targeting children through cartoon characters. These messages also often contain inaccurate and misleading information aimed at convincing listeners of a dangerous revisionist history; namely, people with a specific characteristic have caused serious social and economic problems that can only be eradicated by engaging in violence against them.
This note does not advocate that these sites' expression blindly be deemed constitutionally unprotected. Instead, it proceeds to analyze how the serious need to adopt a proactive deterrent to this Internet hate speech proportionally rises with the likelihood of a society's economic and social forces leading to actualization of these sentiments. Few can argue that the United States is currently engrossed in a period significantly defined by polarized opinions on economic and social issues. …