Beyond free speech: novel approaches to hate on the Internet in the United States

Abstract

Hate on the Internet presents a unique problem in the United States. The First Amendment to the Constitution protects speech, even that which is hateful and offensive. Although the First Amendment is not without limitation and, indeed, although there have been a small number of successful prosecutions of individuals who disseminated hate speech over the Internet, web-based hate continues to receive broad First Amendment protections. Some non-governmental organizations in the United States, such as the Anti-Defamation League (ADL) and the Southern Poverty Law Center, have adopted innovative approaches to hate on the Internet. For instance, the ADL tracks and monitors hate-based websites, identifies hate trends, works cooperatively with law enforcement, notifies potentially impacted communities about relevant hate activities, and responds with training, educational curricula and counter-messages. It also has taken a novel, free-enterprise approach to encouraging ISP regulation of hate-speech on the Internet. The ADL has successfully worked with Internet Service Providers (ISPs) to enforce terms of service contracts (TOS) against hate-based website. While identifying originating ISPs is no small challenge, ISPs may voluntarily cease to provide Internet access when made aware of offensive hate content. This article first examines the evolving legal jurisprudence in the United States regarding prosecutions of hate speech on the Internet. It then analyzes the roles of NGOs in monitoring, tracking and regulating hate on the Internet. Finally, it examines the potential and limitations of these efforts.