Regulating Hate Speech Qua Speech Is Not The Solution To The Epidemic Of Hate On The Internet - Part II

Wednesday, September 1, 2004 - 00:00

Part I of this article appeared in the August issue of The Metropolitan Corporate Counsel.

The following article is adapted from a paper given at the Organization for Security and Cooperation in Europe Meeting on the Relationship Between Racist, Xenophobic and Anti-Semitic Propaganda on the Internet and Hate Crimes in Paris, June 16-17, 2004 by Christopher Wolf, Chair of the Internet Task Force of the Anti-Defamation League and a partner in the Washington, DC office of Proskauer Rose LLP. Mr. Wolf's practice focuses on Internet law, privacy and commercial litigation.

The use of the Internet to send bias-motivated messages and threats is increasing. Internet use has increased exponentially in recent years. Approximately 533 million people now use the Internet to search for information, create material to share with large audiences, and to communicate with others throughout the world for little or no cost. For the bias-motivated Internet user, the combination of limitless reach and lack of accountability is tantalizing. Some users have wrongly assumed that their apparent anonymity would shield them from prosecution.

After being named "Creator of the Year" in 1998 by the World Church of the Creator ("WCOTC"), Benjamin Smith went on a racially motivated shooting spree in Illinois and Indiana over the July 4, 1999 weekend. Targeting Jews, Blacks, and Asians, Smith killed two Indiana University students and wounded eight. As law enforcement officers prepared to apprehend him, Smith took his own life. "It wasn't really 'til I got on the Internet, read some literature of these groups that...it really all came together." Benjamin Smith told documentary filmmaker Beverly Peterson months before his spree. "It's a slow, gradual process to become racially conscious." The Webmaster for WCOTC at the time of the Smith rampage, Kelly Daniels, admitted that Smith had sent him "about five" e-mail messages "congratulating" him on his Web work, indicating that Smith regularly consulted WCOTC Web sites.

Like Smith, Pittsburgh gunman Richard Baumhammers murdered members of several minorities in April 2000. He was convicted of killing five people and sentenced to death in May 2001. His victims were a Jewish woman, a Black man, two Asian-Americans, and two Indian men. Before his shooting spree, Baumhammers visited Tom Metzger's WAR Web site. (Metzger later characterized him as "a white man" who "decided to deliver Aryan justice in a down home way.") On the Web site for his fledgling "Free Market Party," Baumhammers called for an end to non-white immigration. He stated that "almost all" present day immigration "is non-European," and "the effect of such massive waves of immigration has been disastrous for Americans of European ancestry."

When one witnesses the anti-Semitic, racist, homophobic, and Holocaust-denying Web sites that are proliferating, and the hate mongers like Baumhammers who capitalize on the Internet as a tool to spread their messages, a natural response is "There ought to be a law!" But the promulgation of new legal rules and further criminal penalties is not necessarily what is called for. Law is just one of the tools available to affect the Internet positively. Technology, education, and guidance are other relevant tools. The law has limitations and potentially harmful side-effects.

Moreover, despite successful individual prosecutions for Internet hate speech, it is widely recognized that the nature of the Internet is such that episodic, individual prosecution will do little to affect the overall presence of harmful online content. The Internet affords anonymity and rapid mobility. If an offensive Web Site is shut down in Germany, it may pop up overnight in Sweden, and thus still be available worldwide on the Internet. Where countries have attempted to restrict access to the Internet through "official" portals or government-operated or -sanctioned Internet Service Providers, or "ISPs," end runs around those portals can be as simple as a long distance telephone call to a foreign ISP.

Some believe that the most efficacious way to control illegal or harmful Internet content is through regulation of the ISPs or the principal access points for the Internet. Yet, the International trend is against ISP regulation. In the EU, the proposed directive on electronic commerce removes potential ISP liability for hosting, transmitting, or failing to monitor the contents of information it hosts or for which it serves as a conduit. Likewise, in the United States, ISPs generally are absolved from liability (although in the case of copyright infringement, certain notice and take down obligations arise for those wishing to avail themselves of statutory protection).

The ISP industry, virtually non-existent a decade ago, has been extremely effective in organizing to ward off governmental regulation. In the U.S., for example, America Online developed a public policy advocacy team at the local, state and federal levels. One of the more potent arguments the ISP industry has advanced is that "self-regulation" and the adoption of Codes of Conduct are effective means to deal with misuse of the Internet. To the extent the Codes of conduct are memorialized in an ISP's terms of service, they become contractual undertakings, enforceable as a matter of law. In this way, the law does assume a role in regulation, but only at the level of private contract enforcement. In the U.S., one case that is getting attention because of these very issues relating to providing access and assistance to hate mongers is the Sami Al-Hussayan case, which is particularly noteworthy because it is occurring in a post 9-11 landscape.

After September 11th people across the globe were forced to accept the threat posed by Muslim extremists and the benefits the Internet provides to achieve their plans. Al-Qaeda operatives relied heavily on the Internet in planning and coordinating the September 11th attacks. However, outside the use of the Internet to plot against other nations, hate groups spread extremist propaganda on the Internet. Many Web sites include articles that condemn Jews, contain biographies of Islamists killed in battle, and set forth biased accounts of the wars in Iraq and Afghanistan.1

Supporters of bin Laden and Al-Qaeda openly acknowledge the power of the Internet as a propaganda tool. For instance, the Assam Publications site stated that, "due to the advances of modern technology it is easy to spread news, information, articles and other information over the Internet. We strongly urge Muslim Internet professionals to spread and disseminate news and information about the Jihad though e-mail lists, discussion groups, and their own Websites. If you fail to do this, and our site closes down before you have done this, we may hold you to account before Allah on the Day of Judgment."2

In instances where a credible threat is sent to a targeted group, it is easy to understand why the prosecution of that type of hate speech was successful. In other instances, however, the precise connection between the message and the messenger may not be so clear, as the ongoing Sami Al-Hussayen case demonstrates. What if the defendant merely facilitated the spread of hate by providing technical assistance and creating web pages, but not providing content? Where do courts draw the line?

A jury recently rejected charges against 34 year old Saudi national Sami Al-Hussayen - a computer science doctoral candidate at the University of Idaho - who was accused by the U.S. government of supporting terrorism by using his online skills to create an Internet network that financed and recruited terrorists. Al-Hussayen was accused of allegedly conspiring with the Islamic Assembly of North America ("IANA") to support terrorism by operating and maintaining a radical Islamic Web site.3

Al-Hussayen presented a challenging dilemma, because the defendant was a well-educated, married, father of three who is publicly on record as denouncing the Sept. 11, 2001 East Cost terror attacks. Al-Hussayen, a member of a prominent Riyadh family whose education is being financed by the Saudi government, was in the U.S. studying for his doctorate in computer science.

One of the Web sites registered by al-Hussayen on September 11, 2000, (www.alasr.ws) published an article entitled "Provision of Suicide Operations" written by a radical Saudi sheikh which included language of how a Mujahid (warrior) must kill himself and how this can be accomplished.

Labeled at times as "the case that goes too far" (because it appears on its face to be prosecuting a "Webmaster" for merely facilitating the spread of information, as opposed to advocating the content of the speech itself), the United States argued that Al-Hussayen's Web sites contained content so subversive that it convinced people to finance terrorism or become part of it.

Al-Hussayen's case is particularly interesting in the post-9/11 landscape because under the Patriot Act, enacted one month after 9/11, a person within the United States or subject to the jurisdiction thereof who knowingly provides material support or resources to a foreign terrorist organization, or attempts to conspire to do so, which includes expert advice or assistance, may be prosecuted for conspiracy to support terrorism and imprisoned for up to 15 years.4 There is no First Amendment exception, thus even when assistance counts as free speech, or free association, it still may fall within the Act.5 Was Al-Hussayen simply a talented Webmaster who helped facilitate others? Or was he responsible for the content found on his numerous Web sites and web links?

The jury concluded that Al-Hussayen was not criminally responsible and, in so doing, eliminated a case for appellate consideration and clarification of the law. It remains to be seen how aggressive the Bush administration chooses to be in future cases in light of this prosecutorial setback.

To conclude, combating online extremism presents enormous technological and legal difficulties. Even if it were electronically feasible to keep sites off the Internet, the international nature of the medium makes total legal regulation virtually impossible. Furthermore, in the United States, from which the vast majority of Internet content originates, the First Amendment guarantees the right of freedom of speech, even for those whose opinions are reprehensible. Consequently, governments, corporations and people of goodwill have looked for alternative ways to address the problem. Internet Service Providers (ISPs) based in the United States, as private actors, are not bound by the First Amendment, and they are not legally liable for the content of the sites they host.

Just as an ISP can remove a hate site from its servers, concerned individuals can undertake to remove such sites from their screens. Additionally, Internet users can let responsible authorities know about the threatening, hateful and violent materials they find online.

Finally, the Internet itself can be used as a powerful tool to promote tolerance and to combat hate. As a powerful technological tool that permits instantaneous communication between disparate populations across the globe, the Internet can promote cultural tolerance in a larger sense. It can help educate people, promote positive messages, spread truthful information and facilitate the exchange of ideas. The Web Site of the Anti-Defamation League, www.adl.org, is a prime example. The ADL believes that in the online world, as in the print world, the best antidote to hate speech is more speech. This Conference on the Relationship Between Racist, Xenophobic and Anti-Semitic Propaganda on the Internet is a perfect example of that principle in action. 1 Anti-Defamation League, Jihad Online: Islamic Terrorists and the Internet, p. 10-12 (2002).
2 Id.
3 See Anita Ramasastry, "Is Being a Webmaster for Controversial Islamic Web sites a Crime? A USA Patriot Act Prosecution Raises the Issue", http://writ.findlaw.com/ramasastry/20040503.html.
4 H.R. 3162, Title 8, §§805, 807 (2001).
5 See Anita Ramasastry, "Is Being a Webmaster for Controversial Islamic Web sites a Crime? A USA Patriot Act Prosecution Raises the Issue", http://writ.findlaw.com/ramasastry/20040503.html.

Christopher Wolf is a Partner in the Washington, DC office of Proskauer Rose LLP.

Please email the author at cwolf@proskauer.com with questions about this article.