17 Ga. St. U.L. Rev. 379, *
Copyright (c) 2000
Georgia State University
Georgia State University Law Review
Winter, 2000
17 Ga. St. U.L. Rev. 379
ARTICLE: PURVEYORS OF HATE ON THE INTERNET: ARE WE READY FOR
HATE SPAM?*
* This article was prepared in conjunction with the Symposium, "Law and
the Internet: A Symposium for the New Millennium," hosted
by the Georgia State University Law Review on February 8, 2000.
Elizabeth Phillips Marsh+
+ Professor of Law, Quinnipiac College School of Law. I am grateful to my
colleagues for their helpful comments and encouragement in response to an oral
presentation of this piece, particularly Neal Feigenson, Marilyn Ford, Carrie
Kaas, Stan Krauss, Linda Meyer, Steven Latham, Alan Soloway, Mary Moers Wenig,
Ann DeVeaux, and Michael Hughes. I also wish to acknowledge the generous aid of
the Quinnipiac College School of Law as well as the patience and encouragement
from my family.
[*379]
Introduction
The Internet 1
has opened up new vistas of empowering communicative opportunities. We marvel 2
at how this power has made the Internet part of the fabric of
our everyday life. It is now entrenched as a means by which to accomplish many
common tasks, such as shopping, 3
banking, 4
investing, 5
[*380] education, 6
and simple interpersonal communication. 7
For many, the Internet has become our newspaper, our public
forum, our mail service, our shopping mall, and our library and research
center. It presents a marketplace of ideas 8
unlike any we have ever encountered; 9
of course this multiplicity of functions defies easy characterization for
doctrinal analysis.
[*381]
This technology, however, is not an unalloyed tool for good. 10
New technology creates opportunities for criminals as well as law-abiding
citizens. 11
For every legitimate use of the Internet, there is a potential
for criminal abuse. Efforts to purchase goods over the Internet
can lead to fraud; therefore, customers are understandably reluctant to
transmit credit card information without satisfactory assurances that it will
not be misused. 12
Legitimate banking may exist side by side with illegitimate money laundering
over the Internet. 13
Legal investing activities can give way to new forms of securities offenses. 14
Accredited educational endeavors can be diluted or harmed by spurious Internet
courses. 15
Otherwise appropriate communication [*382]
channels become gateways for gambling, 16
pornography, 17
and hate speech. This should not surprise us. With any new technology,
opportunities for misuse will arise.
Just as the Internet has empowered its users with a great
communicative capacity for good, it has also created vast opportunities for
communication of socially undesirable messages. The Internet
empowers not only the groups that society may wish to foster, namely, churches,
synagogues, school groups, political organizations, 18
and public interest groups, but also criminals, hate groups, and groups that
seek to impede others in the exercise of their rights. 19
Many [*383] commentators have examined
the problems surrounding pornography on the Web, but as a society, we might
need to worry as much, if not more, about the purveyors of hate as we do about
the purveyors of flesh. 20
The dangers do not lend themselves to easy answers. Much of this activity is
protected by our First Amendment. Much of it is difficult to
investigate and enforce given current law enforcement attitudes regarding Web
activities. 21
Nevertheless, given the dangers posed, there is a point at which the use of the
Internet by purveyors of hate must evoke a response from law
enforcement authorities and society as a whole. The nature and extent of that
response should be evaluated by looking at the entire context of the
anti-social message.
In recent years, many have
suggested that the glory of the Internet is its lack of
regulation. Supporters of this unregulated environment contend that any
regulation of the Internet violates the First
Amendment 22
or, alternatively, that cyberspace presents a modern libertarian utopia that
should be encouraged [*384] not
stilted. 23
This has led some to frame the issue of Internet regulation as
a stark dichotomy between anarchy and government control. 24
Others view the debate as one of private ordering versus government regulation.
25
Still others accept regulation, but raise issues of federalism and preemption. 26
Others argue that existing legal doctrines are the only ones needed for
cyberspace. 27
There is also a significant question of whether regulation can come solely from
government or whether technology imposes its own restraints on the flow of
information. 28
"Regulation" can come from self-help as well as from the government;
indeed, in a "wild west" environment, self-help is often the only
help. Many have commented on the need for private measures in the face of an
unwillingness to seek law enforcement assistance and inadequate law enforcement
response, thus necessitating a self-help response. This is a fascinating and
exciting debate, and while I take no position on these views, I would argue
that we do well to consider Lawrence Lessig's comment that "[w]e need to
think collectively and sensibly about how this emerging reality will affect our
lives." 29
In this spirit, I will venture a few tentative thoughts on how law enforcement
can respond to the use of the Internet by purveyors of hate
without violating the principles of the First Amendment. 30
Assuming that these
messages of hate are [*385] pervasive,
self-help will not suffice. From a background in law enforcement, 31
I start with a sense that the use of the Internet magnifies
the messages of hate in a way that may deserve a heightened governmental
response. Quite simply, speech on the Internet is
different. Looking at a few instances in which courts have confronted hate on
the Internet, the lesson I draw is that even though courts
must be careful to safeguard First Amendment values, the
vitriolic nature of these communications must be measured, not in isolation,
but rather in their broader social context. In short, when applying the Brandenburg test 32
to Internet speech, particularly hate speech, courts should
evaluate these communications within a broader social context and look at the
pervasiveness of the speech when deciding whether the speech falls within the
protection of the First Amendment.
Part I of this Article raises the question of whether Internet
speech is different from other speech, thus deserving a different standard of First
Amendment protection. Part II presents a hypothetical fact pattern as
a vehicle to explore some of the issues. Part III discusses two cases that deal
with hate speech on the Internet. Part IV touches on
traditional First Amendment theory and asks whether existing First
Amendment doctrine precludes any successful regulation of hate
messages, or whether criminal law can reach this type of speech when it is
pervasive and within a broad social context of violence. Finally, Part V
discusses the difference between simple speech and "hate spam," which
magnifies the message of hate. I conclude by arguing that in the absence of
governmental regulation of privacy data, criminal law should be able to reach
hate spam if, when viewed from a broader social context, it encourages violence
to an intolerable degree. Thus, courts should consider the pervasiveness of the
speech and how the message is amplified on the Internet.
[*386]
I. Is Internet Speech Different from Other Speech?
Several commentators have compared two or more types of media with an eye
towards asking whether different First Amendment standards
should be applied to each. Professor Rodney Smolla believes "that one First
Amendment fits all." 33
Professor Frederick Schauer notes that the Supreme Court has hinted at
developing First Amendment principles "in an
institution-specific manner . . . ." 34
While there is a strong argument that speech on the Internet
should be subject to the same standards as other speech, I would suggest that
speech on the Internet is different.
The United States Supreme Court has treated different types of media
differently for purposes of First Amendment analysis. 35
The emphasis on media parameters will change over time, particularly as one
technology merges into another. For example, with the growth of broadband
technology, some of the borders will blur. 36
Nevertheless, certain
characteristics of the Internet are sui generis. 37
First, communication on the Internet has vast scope. 38
[*387] "It is no longer the case
that those with the most massive resources will have the biggest
audience." 39
A person can send a single communication to millions with just a few clicks of
a mouse. 40
In addition, Web sites can have mirror sites so that the same site appears in
more than one place. Second,
the Internet is open to vast numbers of people, and the cost
of communication is low, to the point that the expense is virtually nil. 41
Thus, there is no scarcity of resources or information channels in this
context. 42
Third, the Internet
permits anonymous speech. 43
While anonymous speech often serves desirable goals 44
and claims First Amendment protection, 45
the [*388] very ease of access
described above may encourage criminal activity and hate speech. 46
Fourth, communications can
come in many different forms at once. In addition to simple person-to-person
messages, senders can create a barrage of e- mails reinforced with banners,
advertisements, hyperlinks, and Web sites. Messages can also be sent via other Internet-based
media such as Usenet and listservs. Fifth, the reach and widespread use of the Internet
have serious implications for individual privacy. Many promotional messages
come without an invitation, making the recipient a captive audience. Bulk
mailers can reach many people at once, and often these messages are mere spam,
unbidden messages, usually commercial in nature, but not necessarily. Moreover,
simple reading on the Internet becomes interactive because
when someone visits a Web site, cookies 47
are left with identifying [*389] information.
Profiles of personal information on Web users can be compiled from these
cookies, often without the user's knowledge. Finally, in the few instances in
which regulation has been imposed on the Web, it has been with reluctance.
Often, people prefer not to resort to government intervention, and even when
the government does intervene, it is often ineffective. For example, Web sites
that have been enjoined have appeared again on another Internet
service provider (ISP). 48
With these differences in mind, let us turn to my hypothetical.
[*390]
II. The Hypothetical
Suppose I form a small group called the Society for Cutting and Raping Every
Woman (S.C.R.E.W). 49
We meet once a month. Cognizant of our rights of association, we guard our
membership lists closely, 50
but we want to expand both our group size and the impact of our message. To do
this, we might purchase newspaper, radio, or television ads; try to obtain
media coverage at no cost; post, distribute, and mail leaflets; make phone
calls; send telegrams; put up posters; leave anonymous graffiti messages; and
network with potential members. This is all very time-consuming and often
expensive. If we choose to send our message anonymously, the recipient may
quickly discount it. Moreover, since the message is unpopular or at least
recognized as socially unacceptable, very few will likely respond.
Let me shift the hypothetical a bit. Assume that I possess a personal computer
and have access to the World Wide Web. Now with very little cost 51
or delay, I can reach millions of people who can come to me by visiting my Web
site, or I can go to them via e-mail. 52
The geographic and monetary barriers are lifted. Moreover, notwithstanding the
fact that the message is socially unacceptable, more individuals will feel free
to respond since they consider themselves unbounded by the limits of identity
and social context. Some will respond out of genuine agreement with the message;
others will respond out of mere curiosity; and some, who would never show their
faces at a live meeting of [*391]
S.C.R.E.W., will respond after overcoming social inhibitions that would bind
them in real space, but not cyberspace. In addition, I can now send my hate
speech directly to the group against whom my organization is aligned. I can now
send hate spam to as many members of the "other" group-here, women-as
I can find.
Traditional theory suggests that as long as I am simply conveying a message,
the government should not intervene to impede the flow of this information, no
matter how noxious. We are loath to invoke the criminal law for thoughts alone,
53
and courts have long stated that the remedy for speech is more speech. 54
On the Internet, though, the target of such speech may not be
able to counter with additional speech due to the pervasiveness of the message.
55
Moreover, there is a body of thought that any regulation at all may curtail the
benefits of the Internet. 56
Once I shift to cyberspace to spread my hatred, though, this message becomes
amplified by the Internet and may become pervasive well beyond
the effects of ordinary speech. Beyond the obvious use of Web sites and e-mail,
other ways that I can use the Web to spread my message of hatred include: (a)
invading chat rooms and discussion groups; (b) usurping domain names; 57
(c) using misleading meta-tags; 58
[*392] and (d) launching hate attacks
in avatar space. 59
Obviously, this covers a lot of ground. Even so, the list probably just
scratches the surface. 60
These combined techniques can magnify my message, creating a
"shouting" on the Web that is far louder than any anonymous pamphlet
handed out on a street corner. 61
As a S.C.R.E.W. member, I might use e-mail in three possible scenarios. First,
I mail messages to my fellow members of S.C.R.E.W. to discuss topics of mutual
interest. 62
Second, I send [*393] e-mail messages
to non-members in an effort to get them to join my group. Third, I send
messages to non-members who are the targets of my hatred in an effort to
intimidate them and to obtain publicity for my cause. This could be a few
isolated messages or a broad-scale flood in the form of what I will call
"hate spam." 63
This latter scenario is of greatest concern. To illustrate, let us suppose
that, as president of S.C.R.E.W., I purchase a mailing list of individuals with
personal information profiles. I then formulate a message that contains a
vitriolic tirade of hate. 64
Perhaps I add graphic pictures or even audio and video embellishments. Using a
bulk remailer, 65
I send my e-mail message to millions of women, and after they hear the cheery
message, "You've got mail," they are treated to my presentation
calling for the rape, mutilation, and murder of all women.
We can explore some of the questions posed by my S.C.R.E.W. hypothetical by
first examining two cases that deal with hate messages on the Internet.
The first case involves
anti-abortion [*394] "wanted
posters" and "Nuremberg files" on the Internet.
66
The second deals with an e-mail
discussion of the torture, rape, and debasement of a woman identified by name.
67
These two cases present fact situations that cover an array of First
Amendment issues. In the first case, the court permanently enjoined a Web
site commonly known as the "Nuremberg files." 68
In the second, the court quashed a criminal indictment based on ominous
misogynist e-mail messages. 69
III. Two Cases of Judicial Response to Purveyors of Hate on the Internet
A. The "Nuremberg
Files" Case 70
The debate over abortion rights speech has become extreme and increasingly
violent. 71
The American Coalition of
Life Activists (ACLA), an anti- abortion group that advocates the use of
force in their efforts to curtail abortions, 72
released dramatic "wanted posters," along with the so-called
"Nuremberg files." 73
The "wanted posters" included a "Dirty Dozen list" that
named a number of doctors who performed abortions, including four of [*395] the named plaintiffs in the lawsuit, 74
along with their home addresses and, in some instances, their home phone
numbers. 75
These "posters" offered "a $ 5,000 [r]eward for information
leading to arrest, conviction and revocation of license to practice
medicine" of the named individuals. 76
The "Nuremberg files" poster listed more doctors and health care
providers with names, addresses, and physical descriptions, as persons and
clinics wanted "for crimes against humanity." 77
These hard copy posters were widely circulated at anti- abortion meetings and
on television. 78
Ultimately, they were posted on the Internet. 79
In later manifestations of the posters, the names of doctors, clinic workers,
and security personnel killed during attacks on abortion clinics were listed
with strikes through their names; those wounded had their names shaded in gray.
80
Plaintiffs, consisting of
Planned Parenthood of Columbia/Willamette and the Portland Feminist Women's
Health Center, as well as individual doctors named in the posters, sued,
alleging violations of the Freedom of Access to Clinic Entrances Act of 1994
(FACE), 81
the Racketeer Influenced and Corrupt Organizations Act (RICO), 82
the state RICO, 83
and state tort law. 84
Plaintiffs sought to enjoin these and similar posters and asked for damages.
The defendants argued that the posters were protected by the First
Amendment. 85
The district court surveyed the surrounding context of abortion violence. In a
chilling litany of 453 findings of fact, the court laid out a series of events
wherein doctor after doctor named in the posters was murdered, some at close
range, others by snipers. 86
When new doctors, such as Dr.
Bernard Slepian, [*396] were murdered,
their names were then crossed out on the "Nuremberg poster." 87
Accordingly, the court held that in this case the words constituted "true
threats" under the applicable test of "whether a reasonable person
would foresee that the statement would be interpreted by those to whom the
maker communicates the statement as a serious expression of intent to harm or
assault." 88
Thus, the court did not analyze the posters under the "incitement to
imminent violence" exception or the "fighting words" exception. 89
Instead, the court recognized that speech could fall outside the protection of
the First Amendment if "the target of the speaker
reasonably believes that the speaker has the ability to act him or herself or
to influence others to act at a level less than incitement-it is the perception
of a reasonable person that is dispositive, not the actual intent of the
speaker." 90
Had the court used the Brandenburg test, it is conceivable that the posters
would have been protected under the First Amendment since
there was advocacy, but no direct link between the speaker and ultimate action.
Instead, however, the court looked to the broader social context,
notwithstanding the fact that the plaintiffs had not proven that any of the
defendants had engaged in any direct violence. The court granted the
injunction, and the jury awarded damages. 91
In the final opinion, the First Amendment arguments were
relegated to a footnote and rejected. 92
B. The Jake Baker Case 93
In 1995, Jake Baker, also known as Abraham Jacob Alkhabaz, was a student at the
University of Michigan. 94
He posted a story on an Internet
forum describing the rape, torture, and murder [*397]
of a woman with the name of one of his female classmates. 95
When college security officers searched his computer files, 96
they found a similar story that was unpublished, but which contained the
college and home addresses of the female classmate and identified her as his
classmate. 97
They also found a series of e-mails exchanged over approximately three months
between Baker and a Canadian individual named Gonda. 98
In these e-mail messages, Baker and Gonda detailed their plans to attack young
women. 99
Baker wrote, "Just thinking about it anymore doesn't do the trick . . . I
need TO DO IT." 100
Other e-mails regarding the female classmate referred to the posted story. 101
It is clear that these stories and e-mails all involved "a sexual interest
in violence against women and girls." 102
Ultimately, Baker was prosecuted under 18 U.S.C. § 875(c) 103
for transmitting threats to injure or kidnap another in e-mail messages
transmitted via the Internet. 104
The court noted that "coercive or extortionate threats are paradigmatic
subjects of a prosecution under 18 U.S.C. § 875(c)" 105
and identified three elements for the offense: "(1) a transmission in
interstate [or foreign] commerce; (2) a communication containing a threat; and
(3) the threat must be a threat to injure [or kidnap] the person of
another." 106
The court also analyzed the crime as one of general intent. 107
In order to secure a
conviction that will withstand First Amendment challenge, the
court ruled that the prosecution [*398]
must show a "true threat." 108
Determining whether a communication is indeed a true threat, is, however,
somewhat problematic. At
the district court level, the threat analysis was bound to the First
Amendment analysis. First, the threat must be "particularly
likely to be intimately bound up with proscribed activity." 109
The court may also consider the recipient of the threat to determine whether a
"'reasonable person would foresee that the statement would be interpreted
by those to whom the maker communicates the statement as a serious expression
of an intent to inflict bodily harm' or kidnap a person." 110
Despite the language of these communications, the district court was skeptical
about the decision to prosecute. 111
Relying on a psychological evaluation that found no evidence to indicate that
Baker was a danger to himself or others, the court granted the defendant's
motion to quash the indictment.
On appeal, the Sixth Circuit Court of Appeals upheld the dismissal, but limited
its discussion to the statutory interpretation of 18 U.S.C. § 875(c), under
which Baker was charged. 112
The court, however, used an analysis reminiscent of Brandenburg and held, over
a strong dissent, that "a threat" for purposes of the statute must
reveal an additional "purpose of furthering some goal through the use of
intimidation." 113
Thus the advocacy of these sexual attacks without action to back them up could
not be prosecuted. 114
[*399]
The dissent, in contrast, found these e-mails to be highly threatening. 115
As such, a "rational jury" could find that they constituted
"threats" under the statute. 116
In the context of pervasive violence against women, this finding would be
defensible.
IV. Traditional First Amendment Theory: The Standard for
Speech That Constitutes Imminent Incitement
A. The Categorization Approach
Basic First
Amendment theory provides that in order to be prosecuted for the
content of speech, the speech must fall outside the circle of First
Amendment protection. First Amendment protections are
not absolute. 117
While content-neutral time, place, and manner restrictions may be imposed, when
the government seeks to regulate in a way that may implicate content, it may
only do so when the speech in question falls within specific categories of
unprotected speech. 118
Thus, under this categorization approach, advocacy of an imminent illegal act
(incitement beyond mere advocacy), 119
fighting words, 120
obscenity, 121
and defamation 122
fall outside the constitutional pale. Thus, there is a First Amendment
right to express unpopular views. Courts have allowed groups such as [*400] the Ku Klux Klan mandatory access to broadcast
media. 123
The Supreme Court upheld the right of Neo-Nazis to march in full regalia
through a predominantly Jewish neighborhood in Skokie, Illinois. 124
Once the speech crosses the line into fighting words, or to the extent that it
advocates and has the impact of inciting violence as part of a pervasive
campaign of hatred, it should be curtailed.
When we try to draw the line between these two ends of a continuum, we must
take care not to hamper or chill legitimate speech. 125
This effort, if it is to be undertaken at all, requires a scalpel, not a meat cleaver.
Attempts to ban the language of hatred must not chill legitimate speech. 126
B. Theorists Who Question the Categorization Approach
In a thoughtful and ambitious treatment of First Amendment
theory, Professor Steven Heyman has traced the underpinnings of our First
Amendment jurisprudence. 127
At the risk of doing him the disservice of oversimplifying his theory, he
argues that "free speech is a right that is limited by
the fundamental rights of other individuals and the community as a whole."
128
Drawing on the natural rights tradition, he suggests that free speech
is a right that must sometimes, but certainly not always, bend to the rights of
others, particularly when the rights of others implicate similar values and
principles such as "personal security, privacy, reputation, and
citizenship." 129
He concedes that "hate speech may have some political value, [but] that
value is distinctly limited." 130
While recognizing institutional reasons as [*401]
to why regulation of hate speech may be inappropriate, he worries that
"[t]he effect of protecting hate speech on these grounds would be to leave
target-group members without legal protection against such injuries." 131
In short, hate speech is protected at the cost of dignity, equality, security,
and freedom from emotional distress.
In another attempt to redefine the lines of First Amendment
protection, this time with an expanded definition of existing constructs,
Professor David Crump explored the dynamics of "camouflaged speech." 132
[I]n spite of the deference that we grant to speech falling short of actual
incitement to crime, and in spite of our recognition that there are prohibited
utterances that cross the line, a borderland remains in which clever speakers
can hide, with form, the substance of what they say. In short, Mark Antony's
speech is an example of the phenomenon that [I] refer to as camouflaged
incitement. 133
He describes well-established First Amendment principles, but then
attempts to adjust them a quarter turn to avoid injustice. 134
In discussing Brandenburg, Professor Crump notes that the categories are not
particularly helpful in close cases. 135
Brandenburg requires a link between advocacy and action. 136
If that link is broken, powerful speech may lead a third party to act, but
leave the speaker unaccountable. 137
Professor Crump further states:
Of course, there also was a more ominous side to Brandenburg. The possibility
remained that a person of borderline mentality attending this rally might have
taken [*402] the Klan leader's words to
heart and acted upon the indirect advocacy they contained. For example, this
hypothetical psychopathic Klansman might have ambushed and killed a randomly
selected African-American citizen for the purpose of enhancing his own
reputation and exacting the "revengeance" that his mentor had
mentioned in front of the burning cross. In that case, the Supreme Court's
opinion still would exonerate Mr. Brandenburg himself; in effect, it would say
to the victim, "Too bad. That's the price of freedom of speech." This
tragic possibility exists because law is not a perfect instrument of social
regulation-and because of the preferred position of the First Amendment
freedoms. Still, our courts should take the potential for tragedy seriously;
they should strive to make the best accommodation possible between these
competing values, rather than cavalierly writing off the victims of camouflaged
incitement. 138
He advocates a broader array of possible government intervention with
camouflaged speech. 139
Using Brandenburg as his
starting point, Professor Crump suggests that we should be able to distinguish
between mere advocacy and incitement, but that the categorization approach does
not achieve this easily. 140 He suggests, instead, an
eight-part balancing test 141
consisting of the following factors: (1) the express words or symbols uttered; 142
(2) the pattern of the utterance; 143
(3) the context; 144
(4) the predictability and anticipated seriousness of unlawful results and
whether they actually occurred; 145
(5) the extent of the speaker's knowledge or reckless disregard of the
likelihood of violent results; 146
(6) the availability of alternative means of expressing a similar [*403] message, without encouragement of violence; 147
(7) the inclusion of disclaimers; 148
and (8) the possibility that the utterance has "serious literary,
artistic, political, or scientific value." 149
In some respects, this test is the type of analysis used by the court in the
Planned Parenthood cases. Upon looking at the surrounding context-the explicit
threats, the reckless disregard that a member of the group would (and obviously
someone did) act on the call to action to kill or maim, and the request to
disable abortion doctors-the district court permanently enjoined the
"Dirty Dozen posters" and the "Nuremberg files" posted on
the Internet by the American Coalition for Life Activists.
In contrast, the court in Alkhabaz did not look at context. If measured against
the broader context of violence against women, although not necessarily
committed by this speaker, the court might have found, as the dissent
suggested, that the e-mail messages were threats and incitements. 150
A similar result might occur using Professor Crump's eight-part test. Under
either approach, both of which are ad hoc balancing tests, the outcome is
uncertain, but at least the targets of the speech would have a chance to
vindicate their claims upon making the appropriate factual showing.
Using the fact-determinative, ad hoc balancing approach to broaden the window
of what constitutes threats or incitement to imminent action is less invasive
of First Amendment freedoms than other approaches. It does not
cut so broad a swath as legislative efforts such as Georgia's attempt to ban
all Internet transmissions which falsely identify the sender,
including anonymous transmissions. 151
Moreover, the sending of e-mail messages as "hate spam" would be more
readily reachable under this more broadly defined standard.
[*404]
V. Hate Spam
"Spam" 152
is usually characterized as "unsolicited commercial e- mail." 153
Efforts to fashion legal theories for recovery for unauthorized spamming have
not been very successful. 154
As commercial speech, however, spam enjoys less First Amendment
protection than other speech. 155
What happens if a hate group uses spam to target members of the
"other" group as the recipients of vituperative e-mail?
How would hate groups get lists of names to whom they would direct their
messages? The amount of personal data currently compiled on individuals is
considerable. 156
This personal data is readily available for sale to any third party willing to
pay for it. 157
Spam can be targeted by means of [*405]
personal profile data gathered from sources such as cookies. This data can
profile an individual in alarming ways, 158
and use will only increase. 159
To date, voluntary restraint has been the only safeguard. Unlike Europe, the
United States does not have pervasive restrictions on the sale of this data. 160
There are only a few restrictions under U.S. law. 161
At times, Internet Service Providers might voluntarily remove
Web sites of hate groups 162
or data left by cookies, but there is nothing that requires it.
Unsolicited e-mail is not regulated. Instead, regulation of spam is left
primarily to aggressive self-help 163
or the rules of [*406]
"Netiquette." 164
Some Web sites self-regulate, albeit often disingenuously. At least one
anti-gay site warns persons poised to visit of the nature of their message. 165
Similarly, several white supremacist sites warn visitors that they should be
eighteen before entering, and some indicate that the content of their site
should be viewed as parody or humor. 166
If a violent group with a hate message targeted a group, for example, if the Ku
Klux Klan sent a message of hate to African Americans or Jews using hate spam,
there would be several remedies. Tort remedies, such as intentional infliction
of emotional harm or invasion of privacy, might lie, but would not have the
effect of successfully impeding such hate spam. However, under the broader view of
threats and the Brandenburg test that is discussed in this Article, I would
argue that the government should and could seek broader equitable and criminal
remedies when hate spam is sent in a broader social perspective of pervasive
violence.
Conclusion
Given the popularity and
power of the Internet, speech on the Internet
is different. When purveyors of hate use the Internet to send
e-mail threats, distribute hate spam, or establish hate-motivated Web sites,
these insidious communications are magnified in a way that deserves heightened
governmental response. While courts must be careful to safeguard First
Amendment values, they should consider Internet hate
speech in a broader social context. Under the balancing test advocated by Professor
Crump, and seemingly applied in the Planned Parenthood cases, courts should use
evidentiary factors to [*407]
distinguish between mere advocacy and incitement, according to Brandenburg.
When viewed in a broader social context of pervasive violence against the
target group, if the hate speech is the spark in the tinderbox and encourages
violence to an intolerable degree, it could be enjoined without violating the First
Amendment. If the violence against the target group is less pervasive,
however, the hate speech should be tolerated. This ad hoc balancing approach,
rather than a hands-off acquiescence occasioned by reading Brandenburg too
narrowly, would leave courts free to curtail the true threats to the targets of
hate speech rather than making the targets of hate speech bear the entire brunt
and cost of protecting our constitutional freedoms.
FOOTNOTES:
n1
While the Internet has been defined many ways, at least one
court has described it as "a decentralized, global communications medium
that links people, institutions, corporations and governments around the
world." Cyberspace, Comm., Inc. v. Engler, 55 F. Supp. 2d 737, 741 (E.D.
Mich. 1999) (citing ACLU v. Reno, 929 F. Supp. 824, 831 (E.D. Pa. 1996), aff'd,
521 U.S. 844 (1997)); ACLU v. Johnson, 4 F. Supp. 2d 1029, 1031 (D.N.M. 1998),
aff'd, 194 F.3d 1149 (10th Cir. 1999); see also Am. Libraries Ass'n v. Pataki,
969 F. Supp. 160, 164 (S.D.N.Y. 1997).
n2
President Clinton began his Millennium address with a paean to the leaps in
communication brought about by the Internet:On this day 200
years ago, in 1799, our second President welcomed the 19th century. It then
took six weeks by boat to get news from Europe. On this day 100 years ago, when
President William McKinley marked the start of the 20th century, it took six
seconds to send a text by telegraph. Today, satellites and the Internet
carry our voices and images instantaneously all around the world.President
William J. Clinton, Millennium Around the World Address (Dec. 31, 1999),
available at LEXIS, US News Library, Combined File.
n3
The size of the retail markets available on the Internet is
difficult to quantify. Most would agree, however, that it can be measured in
billions of dollars and that use is increasing. See, e.g., Steven Bonisteel, 'Internet
Economy' Weighs in at $ 507 Billion, Newsbytes News Network, at http://www.newsbytes.com
(Oct. 27, 1999).
n4
See Mark E. Budnitz, Stored Value Cards and the Consumer: The Need for
Regulation, 46 Am. U. L. Rev. 1027 (1997); Simon L. Lelieveldt, How To Regulate
Electronic Cash: An Overview of Regulatory Issues and Strategies, 46 Am. U. L.
Rev. 1163 (1997); David G. Oedel, Why Regulate Cybermoney? 46 Am. U. L. Rev.
1075 (1997); Catherine Lee Wilson, Banking on the Net: Extending Bank
Regulation to Electronic Money and Beyond, 30 Creighton L. Rev. 671 (1997);
Kimbrelly N. Kegler, Note, Electronic Banking: Security, Privacy, and CRA
Compliance, 2 N.C. Banking Inst. 426 (1998).
n5
See Tamar Frankel, The Internet, Securities Regulation and the
Theory of Law, 73 Chi.-Kent L. Rev. 1319 (1998); Robert Norman Sobol,
Intelligent Agents and Futures Shock: Regulatory Challenges of the Internet,
25 Iowa J. Corp. L. 103 (1999) (reviewing Howard M. Friedman, Securities
Regulation in Cyberspace (1999)); David M. Cielusniak, Note, You Cannot Fight
What You Cannot See: Securities Regulation on the Internet, 22
Fordham Int'l L.J. 612 (1998).
n6
See Michael A. Geist, Where Can You Go Today?: The Computerization of Legal
Education from Workbooks to the Web, 11 Harv. J.L. & Tech. 141 (1997);
Nat'l Ctr. for Educ. Stat., Distance Education at Postsecondary Education
Institutions: 1997- 98, at http://nces.ed.gov/pubs98/distance (last visited Aug.
26, 2000) (noting that seventy-nine percent of the surveyed institutions
planned increased use of Internet courses, a trend that is not
without its critics).
n7
One of the primary uses of the Internet is e-mail, although
the Internet provides other opportunities for interactive
communication such as online discussion groups and chat rooms. The ease of
interactive communication has special advantages to many who find the Internet
helps them combat social and economic isolation stemming from many causes,
including age or disability. Also, with the many recent mergers of Internet
Service Providers (ISPs) with other media sector players, it seems clear that
we will depend increasingly on the Internet for our news services.
n8
This term harkens to one of our axiomatic models of the First Amendment
put forth by Justice Holmes. See Abrams v. United States, 250 U.S. 616, 624
(1919) (Holmes, J., dissenting). It is not, of course, the only model. See Cass
R. Sunstein, Emerging Media Technology and the First Amendment: The
First Amendment in Cyberspace, 104 Yale L.J. 1757 (1995).
n9
Our current uses will seem rudimentary when we encounter later developments of
new webs and interactive use. For example, our "virtual reality" will
become increasingly complex. See Jerry Kang, Remarks at the American
Association of Law Schools, Section on Privacy (Jan. 2000) (on file with
author) (discussing some possible permutations of racial and gender identity in
avatar space); see also infra text accompanying note 59.
n10
The "dark side" of the Internet has been an image
used many times elsewhere. See, e.g., Michael Rustad, Legal Resources for
Lawyers Lost in Cyberspace, 30 Suffolk U. L. Rev. 317, 341-42 (1996).
"Despite its wonders, it seems the Internet suffers from
a split-personality. The Internet's dark side is the home of
"Bad Guys"-hackers, crackers, snackers, stalkers, phone freaks, and
other creepy Web crawlers." Id. (citing Maggie Canon, Life in the Big
City: Internet Concerns, MacUser, May 1995, at 17).
n11
See Scott Charney & Kent Alexander, Computer Crime, 45 Emory L.J. 931
(1996).Why the great concern about computer crime? First, history teaches that
criminals will frequently abuse new technologies to benefit themselves or
injure others. Automobiles are an apt example. Designed to provide
transportation for law-abiding individuals, the automobile soon became a target
(e.g., car theft, carjacking), a tool (e.g., the getaway car in a bank
robbery), and a weapon (e.g., hit-and-run). Clearly, computers are following
the same route.Id. at 934. This metaphor has been suggested for privacy
concerns as well. See Glen O. Robinson, The Electronic First Amendment:
An Essay for the New Age, 47 Duke L.J. 899, 900 (1998).
n12
See Dee Pridgen, How Will Consumers Be Protected on the Information
Superhighway?, 32 Land & Water L. Rev. 237 (1997).
n13
See Ronald K. Noble & Coura E. Golumbic, A New Anti-Crime Framework for the
World: Merging the Objective and Subjective Models for Fighting Money
Laundering, 30 N.Y.U. J. Int'l L. & Pol. 79 (1997); Sarah N. Welling &
Andy G. Rickman, Cyberlaundering: The Risks, The Responses, 50 Fla. L. Rev. 295
(1998); Jonathan Gaskin, Note, Policing the Global Marketplace: Wielding a
Knife in a Gunfight, 38 Colum. J. Transnat'l L. 191 (1999).
n14
See Robert A. Prentice, The Future of Corporate Disclosure: The Internet,
Securities Fraud, and Rule 10b-5, 47 Emory L.J. 1 (1998); Kevin Mason, Comment,
Securities Fraud over the Internet: The Flies in the Ointment
and a Hope of Fly Paper, 30 Case W. Res. J. Int'l L. 489 (1998).
n15
See Tony Mauro, Justice Scrutinizes Long-Distance Learning; Ruth Bader Ginsburg
Comments on Internet Law School, Tex. Law., Sept. 27, 1999, at
43. Justice Ginsburg spoke at the dedication of the Rutgers Center for Law and
Justice, where she stated:I am uneasy about classes in which students learn
entirely from home, in front of a computer screen, with no face-to-face
interaction with other students or instructors . . . . So much of legal
education-and legal practice-is a shared enterprise, a genuinely interactive
endeavor. The process inevitably loses something vital when students learn in
isolation, even if they can engage in virtual interaction with peers and
teachers . . . . I am troubled by ventures like Concord, where a student can
get a J.D.-though the school is still unaccredited-without ever laying eyes on
a fellow student or professor. We should strive to ensure that the Internet
remains a device for bringing people together and does not become a force for
isolation.Id.
n16
See Stevie A. Kish, Note, Betting on the Net: An Analysis of the Government's
Role in Addressing Internet Gambling, 51 Fed. Comm. L.J. 449
(1999).
n17
Pornography is prevalent on the Web. Congressional efforts to ban child
pornography in the Communications Decency Act of 1996 were
struck down as unconstitutional in Reno v. ACLU, 521 U.S. 844 (1997). Congress
followed soon thereafter with a new statute, the Child Online Protection Act
(COPA). See 47 U.S.C. § 231 (1998). COPA bans the "[knowing transmission]
in interstate or foreign commerce by means of the World Wide Web [of] any
communication for commercial purposes that is available to any minor and . . .
is harmful to minors . . . ." Id. at § 231(a)(1). At least one commentator
predicted that "[l]ike its predecessor, the COPA will soon be subject to intense
judicial scrutiny. Unlike the [Communications Decency Act of
1996], however, the COPA's narrowed scope of application and more precise
definition of prohibited content are likely to withstand constitutional
scrutiny [as part of the Omnibus Appropriations Act]." Matthew Baughman,
Recent Legislation Regulating the Internet, 36 Harv. J. on
Legis. 230, 230 (1999) (footnotes omitted). However, the District Court for the
Eastern District of Pennsylvania recently enjoined the enforcement of COPA. See
ACLU v. Reno, 31 F. Supp. 2d 473, 498-99 (E.D. Pa. 1999), aff'd, 217 F.3d 162
(3d Cir. 2000).
n18
See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) (noting
"a profound national commitment to the principle that debate on public
issues should be uninhibited, robust, and wide-open").
n19
I include all of these groups under the rather anodyne heading of
"anti-social groups." There obviously is a vast continuum of
viewpoints, and the place where any particular group falls along that continuum
will shift radically depending on the observer's attitudes. We could look to
the militia movements as an example. Some would place them as our latter-day
true patriots, and thus socially desirable challengers to repressive
government. See, e.g., Wilson Huhn, Political Alienation in America and the
Legal Premises of the Patriot Movement, 34 Gonz. L. Rev. 417, 429 (1998)
(noting that "the Militia Movement compares itself to the Minutemen of the
Revolutionary War . . . ."). Others would argue that militia movements
represent vigilantism and often ill-cloaked racial hatred. See, e.g., Richard
Delgado, Rodrigo's Fourteenth Chronicle: American Apocalypse, 32 Harv.
C.R.-C.L. L. Rev. 275 (1997).
n20
Some would argue that the line between purveyors of hate and purveyors of flesh
is a thin one indeed. See Catharine A. MacKinnon, Only Words 67 (1993); Andrea
Dworkin, Against the Male Flood: Censorship, Pornography, and Equality, 8 Harv.
Women's L.J. 1, 9 (1985) (arguing that the debasement of women that ensues from
pornography increases both sexual harassment and violence against women); see
also Catharine A. MacKinnon, Vindication and Resistance: A Response to the
Carnegie Mellon Study of Pornography in Cyberspace, 83 Geo. L.J. 1959, 1963-64
(1995) (noting that "when men make new communities, they bring their
pornography with them").
n21
There are many impediments to prosecution, often including considerable
jurisdictional barriers. See Michael L. Siegel, Comment, Hate Speech, Civil
Rights, and the Internet: The Jurisdictional and Human Rights
Nightmare, 9 Alb. L.J. Sci. & Tech. 375, 382 (1999). For purposes of this
discussion, however, I put jurisdictional issues aside. Another impediment to
prosecution is the fact that many law enforcement agencies have neither the resources
nor the trained personnel to pursue investigations of this type. See Marc D.
Goodman, Why the Police Don't Care About Computer Crime, 10 Harv. J.L. &
Tech. 465 (1997).
n22
The Electronic Frontier Foundation, for instance, calls for "broader"
access and freedom of expression with regard to online materials. See Elec.
Frontier Found., Mission Statement, at http://www.eff.org/about eff.html (last visited Aug. 26,
2000). The American Civil Liberties Union (ACLU) also argues against Internet
regulation. See ACLU, Cyber-Liberties, at http://www.aclu.org/issues/cyber/hmcl.html
(last visited Aug. 26, 2000).
n23
See, e.g., Walter A. Effross, High-Tech Heroes, Virtual Villains, and Jacked-In
Justice: Visions of Law and Lawyers in Cyberpunk Science Fiction, 45 Buff. L.
Rev. 931 (1997).
n24
See, e.g., Jo-Ann M. Adams, Controlling Cyberspace: Applying the Computer Fraud
and Abuse Act to the Internet, 12 Santa Clara Computer &
High Tech. L.J. 403, 405 (1996) (discussing "the current struggle between
two increasingly polarized camps: those who combat crime and those who defend
individual freedom").
n25
See, e.g., Margaret Jane Radin & R. Polk Wagner, The Myth of Private
Ordering: Rediscovering Legal Realism in Cyberspace, 73 Chi.-Kent L. Rev. 1295
(1998).
n26
See, e.g., Steven R. Salbu, Who Should Govern the Internet?:
Monitoring and Supporting a New Frontier, 11 Harv. J.L. & Tech. 429 (1998).
n27
See, e.g., Sean Adam Shiff, The Good, the Bad and the Ugly: Criminal Liability
for Obscene and Indecent Speech on the Internet, 22 Wm.
Mitchell L. Rev. 731 (1996).
n28
See Joel R. Reidenberg, Lex Informatica: The Formulation of Information Policy
Rules Through Technology, 76 Tex. L. Rev. 553 (1998).
n29
Lawrence Lessig, Code and Other Laws of Cyberspace 233 (1999).
n30
"Congress shall make no law . . . abridging the freedom of speech, or of
the press." U.S. Const. amend. I. This is the first provision of the Bill
of Rights made applicable to the states through the Fourteenth Amendment Due
Process Incorporation Doctrine. See Gitlow v. New York, 268 U.S. 652 (1925).
n31
I entered law school teaching after a career as an Assistant District Attorney
in the Office of Robert Morgenthau, District Attorney, New York County, New
York. This left me with a perception (perhaps a self-delusion) that my efforts
to theorize retain a practical framework.
n32
See Brandenburg v. Ohio, 395 U.S. 444 (1969) (holding that advocacy of a crime
alone is protected unless it directly incites imminent lawless action).
n33
Rodney A. Smolla, Will Tabloid Journalism Ruin the First Amendment
for the Rest of Us?, 9 DePaul-LCA J. Art & Ent. L. & Pol'y 1, 34 (1998)
(comparing "tabloid journalism" with "serious journalism").
n34
See Frederick Schauer, Principles, Institutions, and the First
Amendment, 112 Harv. L. Rev. 84 (1998).
n35
See Robinson, supra note 11, at 967. "The Court has long been in the habit
of saying that each medium of mass expression raises particular First
Amendment problems." Id. (citing Reno v. ACLU, 521 U.S. 844, 868
(1997); Turner Broad. Sys. v. FCC, 512 U.S. 622, 657 (1994); Southeastern
Promotions Ltd. v. Conrad, 420 U.S. 546, 557 (1975)).
n36
See Robinson, supra note 11, at 967.[I]t is not clear that there are important
differences between electronic media as far as indecency, for example, is
concerned. In Denver Area Educ. Telecomm. Consortium, Inc. v. FCC, 116 S. Ct.
2347 (1996), the Court approved in principle that limited control of indecent
content could be extended to cable television, its premise being that there is
no relevant distinction between the words and pictures delivered over the air
and those delivered by coaxial cable. By the same token, there is no relevant
distinction between words and pictures delivered by coaxial cable and those
distributed by the Internet. Indeed, with the adoption of
broadband delivery media such as cable modems and satellite broadcasting, the Internet
may soon become an alternative mode of delivery for full motion video that is
identical to standard cable television programming.Id. (footnotes omitted).
n37
Efforts to identify this uniqueness may be a fool's errand. See, e.g., id. at
966.On the other hand, although the Court in Reno did move the electronic First
Amendment a little closer to the print model, it would be a mistake to
think that the Court has simply applied the print First Amendment
simpliciter. In fact, "simpliciter" is the last word one should apply
to our modern First Amendment. The modern First
Amendment has become a confusing, complex assemblage of doctrines,
considerations, and ad hoc factors. Some of the Court's modern opinions read
like the Restatement of Torts, with its characteristic laundry list of factors
to be weighed in some unspecified fashion to determine liability.Id. (footnotes
omitted).
n38
I do not include the theory that the World Wide Web is innately a hostile
environment for women and minority groups in my litany of reasons why speech on
the Internet is different. Some have noted that the
Information Highway is so replete with pornography and chauvinism that it makes
some groups less willing to participate in the Internet than
others. See Keth A. Ditthavong, Paving the Way for Women on the Information
Superhighway: Curbing Sexism Not Freedoms, 4 Am. U. J. Gender Soc. Pol'y & L.
455, 510 (1996) (concluding that the feminist movement should use the Web to
organize and voice women's issues on a global scale and that "[i]t would
not behoove the female populace for one sector of feminists to purport the
silence of other women under the guise of censoring 'indecent
materials'"); see also Margaret Chon, Radical Plural Democracy and the Internet,
33 Cal. W. L. Rev. 143 (1997).
n39
James Katz, Struggle in Cyberspace: Fact and Friction on the World Wide Web,
560 Annals Am. Acad. Pol. & Soc. Sci. 194, 194 (1998).
n40
In various efforts to quantify the number of people who have access to the Web,
the general consensus is that we are talking in terms of millions, and this
suffices for my purpose. See Eugene Volokh, Cheap Speech and What It Will Do,
104 Yale L.J. 1805 (1995).
n41
See id. at 1806 n.3.
n42
See Robinson, supra note 11.
n43
See A. Michael Froomkin, Flood Control on the Information Ocean: Living with
Anonymity, Digital Cash, and Distributed Databases, 15 J.L. & Com. 395, 405
(1996).
n44
Anonymity allows full expression of ideas and can shield the speaker from
opprobrium and reprisal. See id. at 409.
n45
See, e.g., id.In the U.S., anonymous speech may be guaranteed by the First
Amendment or whatever right to privacy exists in the Constitution. In
the U.S., anonymous speech also benefits from its association with
well-remembered incidents in which political actors holding unpopular views
that many now accept benefitted from the ability to hide their identity. The
Federalist Papers, the nation's most influential political tracts, were
published pseudonymously under the name "Publius." More recently, the
Supreme Court held the guarantee of free speech in the
Constitution protects a right of anonymous association and that a state
therefore lacked the power to compel a local chapter of the NAACP to disclose
the names of its members. In so doing, the Court protected the NAACP members
from danger at the hands of bigots who would have had access to their
identities if the state had prevailed.Id.
n46
See George P. Long, III, Comment, Who Are You?: Identity and Anonymity in
Cyberspace, 55 U. Pitt. L. Rev. 1177, 1205 (1994); see also Anne Wells
Branscomb, Anonymity, Autonomy, and Accountability: Challenges to the First
Amendment in Cyberspace, 104 Yale L.J. 1639, 1675 (1995) (noting that
if law enforcement authorities are precluded from obtaining the identities of
anonymous users, illegal activities will proliferate).
n47
For a definition of "cookies" and how they work, see Viktor Mayer-Sch
nberger, The Internet and Privacy Legislation: Cookies for a
Treat?, 1 W. Va. J.L. & Tech. 1, 5-9 (1997), at http://www.wvu.edu/wvjolt/Arch/Mayer/Mayer.htm.
The WWW [World Wide Web] is built on a very simple, but powerful premise. All
material on the Web is formatted in a general, uniform format called HTML
(Hypertext Markup Language), and all information requests and responses conform
to a similarly standard protocol. When someone accesses a service provider on
the Web, such as the Library of Congress, the user's Web browser will send an
information request to the Library of Congress' computer. This computer is
called a Web server. The Web server will respond to the request by transmitting
the desired information to the user's computer. There, the user's browser will
display the received information on the user's screen. Cookies are pieces of
information generated by a Web server and stored in the user's computer, ready
for future access. Cookies are embedded in the HTML information flowing back
and forth between the user's computer and the servers. Cookies were implemented
to allow user-side customization of Web information. For example, cookies are
used to personalize Web search engines, to allow users to participate in
WWW-wide contests (but only once!), and to store shopping lists of items a user
has selected while browsing through a virtual shopping mall. Essentially,
cookies make use of user-specific information transmitted by the Web server
onto the user's computer so that the information might be available for later
access by itself or other servers. In most cases, not only does the storage of
personal information into a cookie go unnoticed, so does access to it. Web
servers automatically gain access to relevant cookies whenever the user
establishes a connection to them, usually in the form of Web requests. Cookies
are based on a two-stage process. First the cookie is stored in the user's
computer without her consent or knowledge. For example, with customizable Web
search engines like My Yahoo!, a user selects categories of interest from the
Web page. The Web server then creates a specific cookie, which is essentially a
tagged string of text containing the user's preferences, and it transmits this
cookie to the user's computer. The user's Web browser, if cookie-savvy,
receives the cookie and stores it in a special file called a cookie list. This
happens without any notification or user consent. As a result, personal
information (in this case the user's category preferences) is formatted by the
Web server, transmitted, and saved by the user's computer. During the second
stage, the cookie is clandestinely and automatically transferred from the
user's machine to a Web server. Whenever a user directs her Web browser to
display a certain Web page from the server, the browser will, without the
user's knowledge, transmit the cookie containing personal information to the
Web server.Id.
n48
See, e.g., Scott Hogenson, Nuremberg Files Returns to Internet,
Conservative News Serv., at http://www.conservativenews.org/InDepth/archive/199902/IND1999022
4d.html (Feb. 24, 1999).
n49
This acronym and the goals expressed therein are meant to be fictitious. My
research has not revealed any such group, and it is my sincere hope that there
has not been and never will be such a group. There was, at one point in time, a
group that called itself S.C.U.M., the Society for Cutting Up Men. See Sisterhood
Is Powerful: An Anthology of Writings from the Women's Liberation Movement
(Robin Morgan ed., 1970).
n50
See, e.g., NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958) (holding the
privacy of such lists protected by the right of association). For a discussion
of rights of association in cyberspace, see Jay Krasovec, Comment, Cyberspace:
The Final Frontier, for Regulation?, 31 Akron L. Rev. 101, 135 (1997).
n51
See Volokh, supra note 40, at 1833 (arguing that Internet
speech will both democratize and diversify speech, while intermediary control
will be lessened).
n52
See Siegel, supra note 21, at 377. "The Internet presents
a forum in which racists can take their messages and transmit them to
individuals around the world with little effort." Id. (citing Sally
Greenberg, Threats, Harassment and Hate On-Line: Recent Developments, 6 B.U.
Pub. Int. L.J. 673, 673 (1997)).
n53
See Joshua Dressler, Understanding Criminal Law § 9.01[B], at 70 (2d ed. 1995).
n54
The preferred First Amendment remedy for advocacy of violence
is "more speech, not enforced silence." Whitney v. California, 274
U.S. 357, 377 (1927).
n55
As an analogy, corporations have decried their inability to track down and
defuse rumors about their companies. For years, Proctor & Gamble has fought
rumors that their logo revealed "satanic links." In 1999, Proctor
& Gamble unsuccessfully sued Amway, trying to stem these rumors. See
Procter & Gamble v. Amway, 80 F. Supp. 2d 639 (S.D. Tex. 1999). This case
did not involve rumors on the Internet, but Proctor &
Gamble has complained elsewhere that their company has been unfairly linked to
"satanic groups" on the Internet as well. See, e.g.,
John Lang, Internet Shows Dark Side in Liz, Tommy Rumors, San
Diego Union-Trib., Mar. 23, 1999, at 8.
n56
See Froomkin, supra note 43.
n57
It may be that the law of intellectual property is protecting us from deceptive
messages better than other areas of the law. Planned Parenthood Federation of
America successfully enjoined an anti-abortion individual, Richard Bucci, doing
business as Catholic Radio, from using the domain name
"plannedparenthood.com," and from identifying his Web site on the Internet
under the name "www.plannedparenthood.com." See Planned Parenthood
Fed'n of Am. v. Bucci, No. 97CIV.0629, 1997 U.S. Dist. LEXIS 3338 (S.D.N.Y.
Mar. 19, 1997), aff'd, 1998 U.S. App. LEXIS 22179 (2d Cir. Feb. 9, 1998). The
defendant raised a First Amendment challenge, which the court
denied, finding that "because defendant's use of the term 'planned
parenthood' is not part of a communicative message, his infringement on
plaintiff's mark is not protected by the First Amendment."
Id. at *35-36.
n58
"Metatags are key words used primarily by search engines to index,
identify, and document contents of a web page. Metatags are invisible to
computer users." Jeffrey J. Look, The Virtual Wild, Wild West (WWW):
Intellectual Property Issues in Cyberspace-Trademarks, Service Marks,
Copyrights, and Domain Names, 22 U. Ark. Little Rock L. Rev. 49, 79 n.175
(1999). Search engines select a Web site depending on the meta-tags. If a meta-
tag is deceptive, it can draw an unwilling audience. For example, an
anti-abortion group could insert meta-tags in such a way as to make it appear
that their site embodied a pro-choice outlook. See Ira S. Nathenson, Internet,
Infoglut, and Invisible Ink: Spamdexing Search Engines with Meta Tags, 12 Harv.
J.L. & Tech. 43, 90 (1998) (discussing the negative consequences of misuse
of meta-tags); Barbara Anna McCoy, Comment, An Invisible Mark: A Meta-Tag
Controversy, 2 J. Small & Emerging Bus. L. 377 (1998) (discussing the use
of another company's trademark with its meta- tag).
n59
Avatar space or virtual space has grown out of text-based virtual worlds known
as "MUD" or "MOO" space. See Lessig, supra note 29, at 11.
Avatar space is similar to cartoons on a monitor. As I understand it, it is as
if you could create a character for yourself and inject it into a video game
where the other characters were controlled by others. In avatar space, you
control your character and can have it interact with others. One can imagine an
individual creating a persona and entering avatar space to assault, rape,
lynch, and otherwise cause mayhem motivated by racial, gender, or religious
hatred.
n60
Other means might include the following: implanting false hyperlinks in a
competitor's Web site, capturing Web surfers so that they cannot leave the Web
site, and cyberterrorism techniques of sending worms and viruses over the Web.
n61
This is not to downplay the importance of pamphlets, and one might challenge
whether the din of a broadly distributed message over the Internet
is commensurate with the impact of the pamphlet's message. A quiet pamphlet can
have quite an effect. Thomas Paine's The Rights of Man, for example, changed
history. See Grant Wood, The Creation of the American Republic, 1776-1787, at
93-94 (1969).
n62
In evaluating e-mail as a basis of government regulation, particularly in the
criminal context, other constitutional rights become implicated, such as the
Fourth Amendment. Government surveillance of e-mail is governed by a mesh of
legislative provisions, some of which are not necessarily consistent. The
Electronic Communications Privacy Act of 1986 (ECPA) amended Title III of the
Omnibus Crime Control and Safe Streets Act of 1968 to include e-mail and other
forms of electronic communications. Title I of the ECPA ("Federal Wiretap
Act") governs the interception of electronic communications and requires a
court order for interception. Title II of the ECPA ("Stored Communications
Act") prohibits the unauthorized access to and disclosure of stored
communications without a valid search warrant. See Electronic Communications
Privacy Act of 1986, Pub. L. No. 99-508, 100 Stat. 1848 (codified as amended at
18 U.S.C. § 2510 (1994)); see also Steve Jackson Games v. U.S. Secret Serv., 36
F.3d 457 (5th Cir. 1994). The Communications Assistance for Law Enforcement Act
(CALEA), 47 U.S.C. § 1001 (1994), requires service carriers to cooperate with
law enforcement and also extends the protections under the ECPA to cordless
technologies. The Federal Communications Commission (FCC) adopted an interim
order covering "packet-mode communications"-voice communications sent
over the Internet. Under the order, access to packet-mode
communications is not scheduled to take effect until September 30, 2001. See
FCC Gives Law Enforcement Six of Nine Electronic Surveillance Capabilities
Sought, 65 Crim. L. Rep (BNA) 590 (Sept. 15, 1999). A summary of the order can
be found at Communications Assistance for Law Enforcement Act, 64 Fed. Reg.
51,710 (Sept. 24, 1999). The Electronic Privacy Information Center (EPIC), the
American Civil Liberties Union, the Electronic Frontier Foundation, the
Cellular Telecommunications Industry Association, and the Center for Democracy
and Technology have sued to invalidate this interim FCC order, noting broadly
that "[p]acket-mode communication is the transmission technology of the Internet."
Brief for EPIC, United States Telecom Ass'n v. FCC (CALEA case), 227 F.3d 450 (
D . C . C i r . 2 0 0 0 ) , a v a i l a b l e a t http://www.techlawjournal.com/courts/ustavfcc/20000120.htm.
n63
Hate spam refers to unsolicited e-mails with a message, not of commercial
speech, but of hate speech.
n64
After reading the Jake Baker case, one can easily imagine a message that
advocates that all women should be tied up, raped, tortured, and injured. See
United States v. Baker, 890 F. Supp. 1375 (E.D. Mich. 1995), aff'd sub nom.
United States v. Alkhabaz, 104 F.3d 1492 (6th Cir. 1997).
n65
"Remailers generally delete identifying information about incoming
e-mails, place a header naming the remailer as the sender or using another
identity such as nobody@nowhere." Froomkin, supra note 43, at 415-16.
n66
See Planned Parenthood v. Am. Coalition of Life Activists, 41 F. Supp. 2d 1130
(D. Or. 1999) [hereinafter Planned Parenthood III].
n67
See United States v. Baker, 890 F. Supp. 1375 (E.D. Mich. 1995).
n68
See Planned Parenthood III, 41 F. Supp. 2d at 1131.
n69
See Baker, 890 F. Supp. at 1375-76.
n70
See Planned Parenthood III, 41 F. Supp. 2d 1130; Planned Parenthood v. Am.
Coalition of Life Activists, 23 F. Supp. 2d 1182 (D. Or. 1998) [hereinafter
Planned Parenthood II]; Planned Parenthood v. Am. Coalition of Life Activists,
945 F. Supp. 1355 (D. Or. 1996) [hereinafter Planned Parenthood I].
n71
See Eric Schaff, Redefining Violence Against Women: The Campaign of Violence
and the Delay of RU486, 8 Temp. Pol. & Civ. Rts. L. Rev. 311 (1999).
n72
The American Coalition of Life Activists (ACLA) formed in 1994 when it split
off from the anti-abortion movement of Operation Rescue. ACLA advocates the use
of force to prevent abortions. Advocates for Life Ministries (ALM), a group
closely aligned with ACLA, was active in the formation of ACLA and helps ACLA
in its campaign of intimidation. The court in Planned Parenthood III cited
testimony of ACLA co-founder and regional director Andrew Burnett in which he
stated, "[I]f someone was to condemn any violence against abortion, they
probably wouldn't have felt comfortable working with us." 41 F. Supp. 2d
at 1136. The court further noted that many of the defendants had "signed
the Defensive Action petition approving the murder of Dr. Gunn, [and]
refus[ing] to commit to non-violence. Because they advocated the use of 'force'
and justifiable homicide, they were no longer allowed to be leaders of
Operation Rescue and therefore agreed to form a new organization that became
ACLA." Id.
n73
For a full description, see Planned Parenthood I, 945 F. Supp. at 1362-63.
n74
The named plaintiffs were Dr. Robert Crist, Dr. Warren Hern, Dr. Elizabeth
Newhall, and Dr. James Newhall. See Planned Parenthood III, 41 F. Supp. 2d at
1131.
n75
See Planned Parenthood I, 945 F. Supp. at 1362.
n76
Id.
n77
Id.
n78
See id.; Planned Parenthood III, 41 F. Supp. 2d at 1132-34.
n79
See Planned Parenthood III, 41 F. Supp. 2d at 1134.
n80
See id. at 1133.
n81
18 U.S.C. § 248 (1994).
n82
18 U.S.C. § 1962 (1994).
n83
Or. Rev. Stat. § 166.720 (1995).
n84
See Planned Parenthood I, 945 F. Supp. at 1385-87.
n85
See id. at 1370.
n86
See Planned Parenthood III, 41 F. Supp. 2d at 1131- 53.
n87
See id. at 1136.
n88
Planned Parenthood I, 945 F. Supp. at 1371 (quoting United States v.
Orozco-Santillan, 903 F.2d 1262 (9th Cir. 1990)).
n89
Id. at 1370-72.
n90
Id. at 1372.
n91
See Planned Parenthood III, 41 F. Supp. 2d at 1155- 56.
n92
See id. at 1155 n.1.
n93
See United States v. Baker, 890 F. Supp. 1375 (E.D. Mich. 1995).
n94
See David C. Potter, Note, The Jake Baker Case: True Threats and New
Technology, 79 B.U. L. Rev. 779, 779 n.1 (1999).
n95
See Baker, 890 F. Supp. at 1379.
n96
The security staff searched Baker's computer with his consent, thus obviating
any of the difficulties discussed in note 62, supra. See id. at 1379 n.4.
n97
See United States v. Alkhabaz, 104 F.3d 1492, 1498 (6th Cir. 1997) (Krupansky,
J., dissenting).
n98
See Baker, 890 F. Supp. at 1379.
n99
See id.
n100
Id. at 1389.
n101
See id. at 1387 n.18.
n102
Id. at 1379.
n103
This statute states: "Whoever transmits in interstate or foreign commerce
any communication containing any threat to kidnap any person or any threat to
injure the person of another, shall be fined under this title or imprisoned not
more than five years, or both." 18 U.S.C. § 875(c) (1994).
n104
See Baker, 890 F. Supp. at 1378.
n105
Id. at 1384.
n106
Id. at 1380 (citing United States v. DeAndino, 958 F.2d 146, 148 (6th Cir.
1992)).
n107
See id.
n108
See id. at 1381.That the phrase "true threat" has been used to
describe both the statutory intent requirement and the constitutional
"unconditional, unequivocal, immediate and specific" requirement does
not imply that the two requirements are identical, or that any statement which
meets the intent requirement may be prosecuted under § 875(c) without running
afoul of the First Amendment. Typically, in the cases
[focusing] on the intent requirement, there is no dispute that the statement
satisfies the constitutional standard, and the defendant seeks dismissal or
reversal of his conviction on the ground that he or she lacked the requisite
intent.Id. at 1383.
n109
Id. at 1384.
n110
Id. (quoting United States v. Lincoln, 462 F.2d 1368, 1368 (6th Cir. 1972)).
n111
"What evaluation, if any, was performed by the Washtenaw County
Prosecutor, the logical prosecuting authority, is unknown." Id. at 1379
n.5.
n112
See United States v. Alkhabaz, 104 F.3d 1492 (6th Cir. 1997).
n113
Id. at 1495.
n114
See id. at 1496.
n115
See id. at 1502 (Krupansky, J., dissenting).
n116
See id. at 1504.
n117
See Konigsberg v. State Bar of Cal., 366 U.S. 36, 49 (1961).
n118
See id. at 49-50; see also Brandenburg v. Ohio, 395 U.S. 444, 447 (1969)
(discussing incitement).
n119
Words that constitute a crime, that is, a contract or agreement to buy illegal
drugs, blow up a building, or carry out a murder, would not be protected by the
First Amendment, nor would words constituting a criminal
conspiracy or solicitation to commit a crime. Advocacy of a crime alone,
however, is protected unless it directly incites imminent lawless action. See
Brandenburg, 395 U.S. at 447. Brandenburg involved the attempted prosecution of
a Ku Klux Klan leader for a rally at which he burned a cross, made racial and
religious derogatory comments, and stated in the first of two films that there
"might have to be some revengeance taken." Id. at 446. Since the Ohio
law was overbroad and punished mere advocacy, it was invalidated. See id. at
449.
n120
See Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942).
n121
See Miller v. California, 413 U.S. 15 (1973).
n122
See Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); Steven M. Cordero,
Comment, Damnum Absque Injuria: Zeran v. AOL and Cyperspace Defamation Law, 9
Fordham Intell. Prop. Media & Ent. L.J. 775 (1999).
n123
See Missouri Knights of the KKK v. Kansas City, 723 F. Supp. 1347 (W.D. Mo.
1989).
n124
See Collin v. Smith, 578 F.2d 1197 (7th Cir. 1978).
n125
Some have complained that the reaction to abortion violence has led to a
curtailment of legitimate debate about abortion rights. See Lynn D. Wardle, The
Quandary of Pro-Life Free Speech: A Lesson from the
Abolitionists, 62 Alb. L. Rev. 853, 882 (1999).
n126
See, e.g., Reno v. ACLU, 521 U.S. 844 (1997) (invalidating the Communications
Decency Act); R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)
(invalidating a city ordinance regulating bias-motivated speech).
n127
See Steven J. Heyman, Righting the Balance: An Inquiry into the Foundations and
Limits of Freedom of Expression, 78 B.U. L. Rev. 1275 (1998).
n128
Id. at 1279.
n129
Id. at 1280.
n130
Id. at 1388.
n131
Id. at 1389.
n132
See David Crump, Camouflaged Incitement: Freedom of Speech, Communicative
Torts, and the Borderland of the Brandenburg Test, 29 Ga. L. Rev. 1 (1994).
n133
Id. at 1-2 (footnote omitted).
n134
See id. at 6.
n135
According to Professor Crump,We should start, as before, with Brandenburg. That
decision adopts a categorical approach, in which an utterance either is an
unprotected incitement to crime or protected expression. That standard may
serve us well when the distinction is clear, but like many seminal Supreme
Court opinions, it begs the question in close cases.Id. at 45.
n136
See id. at 4-5, 12-13.
n137
See id. at 13.
n138
Id. at 13-14 (footnotes omitted).
n139
See id. at 71-73.
n140
See id. at 45, 73-74.
n141
Professor Crump's evidentiary factors are to be used to determine "whether
an utterance is incitement, according to Brandenburg. None of the factors
should be considered determinative; that is the essence of a case-by-case
approach, and a contrary approach might blind the reviewing court to either
camouflaged incitement or protected expression." Id. at 52-53.
n142
See id. at 54.
n143
See id. at 55.
n144
See id. at 56.
n145
See id. at 57.
n146
See id. at 63.
n147
See id. at 65.
n148
See id. at 66.
n149
Id. at 67.
n150
See United States v. Alkhabaz, 104 F.3d 1492, 1496 (6th Cir. 1997) (Krupansky,
J., dissenting).
n151
See ACLU of Georgia v. Miller, 977 F. Supp. 1228 (N.D. Ga. 1997). Some aspects
of anonymous speech have been regulated. See Froomkin, supra note 43, at 434
(discussing the Child Protection and Obscenity Enforcement Act of 1988, as
amended by the Child Protection Restoration and Penalties Enhancement Act of
1990, which has been upheld by the D.C. Circuit).
n152
"SPAM" connotes a packaged meat product so ubiquitous in World War
II. See Official SPAM Home Page, at http://www.spam.com (last visited Feb. 19, 2001).
However, in the information age, "spam" has taken on new meanings. See
E-mail from wsmith@wordsmith.org
(Sept. 12, 2000) (copy on file with author). Many believe that the term
"spam" originated in a skit from Monty Python's Flying Circus. See Anne
E. Hawley, Comment, Taking Spam Out of Your Cyberspace Diet: Common Law Applied
to Bulk Unsolicited Advertising Via Electronic Mail, 66 UMKC L. Rev. 381, 381
n.3 (1997) (reproducing the text of the skit). "Spam is unsolicited
advertisements that are broadcast to hundreds or thousands of discussion
groups, listservs, or individual e-mail accounts at one time." John M.
Kuttler, Actual and Potential Attorney Use of the Internet, 46
Am. U. L. Rev. 328, 350 n.94 (1996) (citing Allison G. Burgess, The Lawyer's
Guide to the Internet 338 (1995)).
n153
Ray Everett-Church, Written Testimony on Behalf of the Coalition Against
Unsolicited Commercial Email (June 17, 1 9 9 8 ) , a v a i l a b l e a t http://www.cauce.org/testimony/senate
testimony.html (arguing that spam threatens the future of online commerce by
knocking out systems, shifting tremendous costs onto recipients, and encouraging
massive abuse).
n154
See Seidl v. Greentree Mortgage Co., 30 F. Supp. 2d 1292 (D. Colo. 1998).
n155
See Joshua A. Marcus, Note, Commercial Speech on the Internet:
Spam and the First Amendment, 16 Cardozo Arts & Ent. L.J.
245 (1998).
n156
See Simpson Garfinkel, Database Nation (1999).
n157
See Froomkin, supra note 43, at 479-81.Both public and private organizations
are acquiring unprecedented abilities to build, sell, and use consumer profile
data. Every transaction on the World Wide Web, for example, from catalog sales
to information acquisition, can be recorded and archived by either party to it.
As a result, the Internet could become the mother lode of
consumer profile information; parallel developments in the public sphere make it
increasingly feasible to monitor what citizens do and where they go. Combine
the two, and there is little privacy left. Databases erode the citizen's
control over her personal information in several ways. Computerized records
allow a firm to form a consumer profile based on the a [sic] customer's
transactions with that company. At a slightly more complex level, firms sell
customer lists to each other, which may result in junk mail or increased
information to the consumer, depending on one's perspective or good fortune.
Meanwhile, in the U.S., social security numbers and driver's license numbers
(often the same) have become de facto national ID numbers. The most important
part of the emerging database phenomenon, however, arises from the combination
of the growth in computer processing power with the likelihood that routine
personal data collection will soon become nearly ubiquitous.Id. at 479-80
(footnotes omitted).
n158
See id. at 482-83.[A] chilling example of this data linkage is the sale by
Farrell's Ice Cream Parlor of the names of those claiming free sundaes on their
birthdays. The list was purchased by a marketing firm, which in turn sold them
to the Selective Service System. Some of the ice-cream eaters soon found draft
registration warnings in their mail.Id. at 482 (footnotes omitted).
n159
See id. at 483. "The ice cream example is trivial compared to what is
ahead, given the likely omnipresence of data collection. Data collection will
grow in at least five areas: medical history, government records, personal
movements, transactions, and reading and viewing habits. Between them these
five areas cover most of modern life." Id.
n160
See Peter Swire & Robert Litan, None of Your Business: World Data Flows,
Electronic Commerce and the European Privacy Directive (1998).
n161
See Froomkin, supra note 43, at 489-90.The existence of large, and linked,
databases is potentially alarming in the United States because the U.S. has
relatively few data protection statutes along the lines of the European and
Canadian models. U.S. data protection laws place some limits on the use of
government databases. They also give consumers the right to correct erroneous
entries that may be kept in their files by private credit bureaus.Id.
(footnotes omitted); see also Paul Schwartz, Data Processing and Government
Administration: The Failure of the American Legal Response to the Computer, 43
Hastings L.J. 1321, 1324 (1992) (stating that from an international
perspective, the American legislative response to computer processing of
personal data is incomplete).
n162
For example, the Southern Poverty Law Center, the Anti-Defamation League, and
the Simon Weisenthal Center successfully persuaded the ISP GeoCities and
several other ISPs to remove the KKK Web site from their servers. See Siegel,
supra note 21, at 382.
n163
See, e.g., Cyber Promotions, Inc. v. Apex Global Info. Serv., No. 97-5931, 1997
U.S. Dist. LEXIS 15344, at *1 (E.D. Pa. Sept. 30, 1997) (discussing ping
attacks in retaliation for SPAM).
n164
Marcus, supra note 155, at 246 (footnote omitted).
n165
See Westboro Baptist Church, Warning Page, at http://www.godhatesfags.com
(last visited Aug. 26, 2000).
n166
For example, on the first page of the Web site found at http://www.whitesonly.net,
the viewer encounters a page that reads "Nigger Jokes." The warning
reads: "Enter only if you realize this site is meant as a Joke with
material about niggers on it. Adults only." At another part of this site
that leads to an activity entitled "pin the noose on the nigger," a
Microsoft Internet Explorer warning reads: "This page is
meant as a joke only! We do not condone illegal activity. Do not enter if you
are u n d e r 1 8 y e a r s o f a g e . " S e e http://www.whitesonly.net/hanganigger.html
(last visited Feb. 15, 2001).