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Intro to CPSR/EFF Electronic Hate- Crimes Inquiry
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Computer underground Digest Wed May 5 1993 Volume 5 : Issue 33
ISSN 1004-042X
Editors: Jim Thomas and Gordon Meyer ([email protected])
Archivist: Brendan Kehoe
Shadow-Archivists: Dan Carosone / Paul Southworth
Ralph Sims / Jyrki Kuoppala
Ian Dickinson
Copy Editor: Etaoin Shrdlu, Senrio
CONTENTS, #5.33 (May 5 1993)
File 1--Intro to CPSR/EFF Electronic "Hate-Crimes" Inquiry Responses
File 2--SEA letter - Hate Crime
File 3--EFF Response to NTIA "Hate Crimes" Inquiry
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----------------------------------------------------------------------
Date: 5 May 93 03:01:43 CDT
From: Jim Thomas <[email protected]>
Subject: File 1--Intro to CPSR/EFF Electronic "Hate-Crimes" Responses
Introduction to the CPSR and EFF letters responding to
electronic "hate crimes" inquiry
A quarter century ago, when hitch-hiking across the country between
the coasts a few times a year, I would stop at a tiny hamlet in
Wyoming (pop: about 90, plus a few dogs and cows) about 90 miles from
nowhere. A small cafe with great hamburgers and a friendly bar (with
even better hamburgers), and maybe sleeping out under the stars if I
wasn't in a hurry. "Common courtesy" rather than laws and police
enforcement ruled, and even the occasional stranger was treated like
family. That was the decade of the sixties.
Increased responsibilities and a change in life-style curtailed my
road-bumming in the seventies and 10 years passed before I drove
through that small community again. During that time, nearby
Interstate 80 had been completed, making the town more accessible, and
oil was discovered nearby, turning a tiny community in which everybody
knew each and respected the rights of others, into a chaotic mini-city
of thousands of newcomers. An expanded and professional police force
enforced new laws passed to address the perceived social offenses
caused by the population explosion of mostly young folk attracted to
the oil boom and accompanying enterprises. A formal local government
was created, and it made laws, regulated activitity, and attempted to
accommodate the community to the changes brought by accessibility,
prosperity, and expanding population.
In some ways, the Electronic Community is like that small Wyoming
town. The Internet and its peripheral locales, public access systems,
and BBSes continue to grow as more newcomers enter cyberspace to
settle or simply to visit. The proportion of cyberbozos to decent,
Gopod-respecting citizens is quite small, but the expanding population
means that we reach a critical mass despite the small percentage. A
"jerk-ratio" of only half-percentage point in a population of 10,000
produces only 50 of 'em, which is fairly easily tolerated. The same
proportion in a population of 10 million dramatically increases their
visibility and influence.
Most of the time, bozos are simply nuisances who are quick to flame
with extreme invective or who simply attempt to articulate barely
coherent but rather wild ideas or opinions. However, sometimes they
use electronic media to harass others, to promote particularly
distasteful ideas (such as anti-semitism or white supremacy), or to
engage in what some consider "obscene" communication of a sexually
explicit nature.
Like that small Wyoming town, an increase in population subverts
informal methods of encouraging common decency, and also challenges
conventional prevalent notions of what constitutes "decency." One
person's hate-group may be another person's noble band of freedom
fighters. Although most people would probably agree that
"hate-groups" in particular engage in the expression of unpalatable
and distasteful ideas, there is no consensus about what should be
done, especially in on-line situations. Should certain types of speech
be restricted by university or sysop policies? Should government enact
legislation to reduce certain types of noxious, but currently legal,
expressions? Should a BBS that advocates "lynch the niggers, gas the
kikes" be subject to laws curtailing the use of certain words or
ideas? Should BBSes or ftp sites be prohibited by law or policy from
making accessible the literature of Thunder, the Bloody Afterbirth
writings, anarchist g-files, or adult gifs perceived by anti-porn
advocates as "violence against women?"
Cyberspace is like that small Wyoming town in several ways. First,
there is really no great increase in the proportion of anti-social
behavior; the dramatic and rapid increase in the population simply
makes them more visible. Second, the tendency toward quick fixes
through repression--the "tough town marshall" syndrome--seems an
acceptable tradeoff to those willing to sacrifice a few rights for a
calm social order. Third, when informal means of encouraging courtesy
break down, it takes a while before alternative means replace them.
Finally, as a historical point, expansion of a territory is often
accompanied by chaos, and noxious expressions can be seen as simply a
normal phase in the growth of the cyber community.
We live in a period in which freedom of expression is under attack by
diverse groups on all sides of the political spectrum. "Speech codes"
at universities, "hate-speech/hate-crime" laws enacted in well-meaning
but ill-considered ways, and pressures from both the left and right to
curtail noxious expressions all threaten fundamental First Amendment
principles. So, it's with considerable concern that we note the
inquiry into "hate crimes" in electronic media begun by the National
Telecommunications and Information Administration (NTIA). Despite a
few organizations such as CPSR and EFF, there is no well-organized
constituency for electronic freedoms that compares to the conventional
social world. As a consequence, there seems a greater danger of
government restrictions through legislation or policy on freedom of
expression in cyberspace. Both CPSR and the EFF have responded to the
NTIA's call for comments with strong letters in support of freedom of
expression. CuD moderators agree absolutely and unequivocally that
First Amendment protections should be protected--in fact,
strengthened--in cyberspace. Any attempts to curtail freedom of
expression in electronic media affect BBSes, net-surfers, and others,
and should be an issue of concern to us all.
We comment CPSR and the EFF for their responses, and re-affirm our own
view that freedom of expression is a fundamental and inalienable
right, and not one to be restricted simply because some moral
entrepreneurs find the speech of others to be distasteful.
------------------------------
Date: 29 Apr 93 08:47:10 EDT
From: Lance Rose <[email protected]>
Subject: File 2--SEA letter - Hate Crime
Society for Electronic Access
Post Office Box 3131
Church Street Station
New York, NY 10008-3131
April 26, 1993
Federal Express
Office Of Policy Analysis and Development
NTIA
U.S. Department of Commerce
14th Street and Constitution Ave. NW
Room 4725
Washington, D.C. 20230
Re: Letter of Comment
Report on the Role of Telecommunications in Hate Crimes
by the National Telecommunications and Information
Administration ("NTIA")
Dear Sir or Madam:
I am submitting this Letter of Comment on behalf of the
Society for Electronic Access ("SEA"). SEA is a membership
organization dedicated to preserving freedom in electronic
communications and developing greater public access to electronic
communications. A more detailed description of SEA is enclosed.
SEA hereby responds to the Notice of Inquiry and Request for
Comments on the Role of Telecommunications in Hate Crimes recently
published by NTIA in the Federal Register (the "RFC").
Summary of SEA Position
SEA views the RFC as largely an inquiry into the repression
of free speech for the purpose of combating "hate crimes." If NTIA
devotes its efforts to the matters described in the RFC, it will
result, at best, in a great waste of valuable time and resources.
Very little of the legislation proposed in the RFC would stand up
under the scrutiny required by the First Amendment to the
Constitution of the United States for laws restricting freedom of
speech.
There is also potential for far worse if NTIA makes the
speech-restricting recommendations intimated in the RFC. NTIA is
operating under a fast-track procedure mandated by Congress in the
enabling legislation. If Congress retains the current fast-track
approach and acts swiftly to enact NTIA's recommendations into law,
we may be faced with new federal laws seriously abridging freedom
of speech in telecommunications, without a meaningful opportunity
for public debate on the wisdom of such laws.
To avoid these problems, SEA urges NTIA to restrict the focus
of its inquiry to valid areas of rulemaking that do not repress
freedom of speech. If necessary, NTIA should also point out to
legislators the Constitutional bar to repressing speech in any
medium, including telecommunications, as a means of achieving
legislative goals.
SEA recognizes that racially and ethnically motivated "hate
crimes" are a problem in the United States today, and agrees that
all U.S. citizens must be protected from those who would commit
such crimes. The challenge to Congress is to find ways to combat
the problem without curtailing our essential First Amendment
freedom of speech.
Effective approaches to combating hate crimes while leaving
freedom of speech unaffected are available, as discussed below.
These include increased use of telecommunications to educate the
public about hate crimes, and the creation of a speech-neutral
federal hate crime law modeled after the existing mail fraud and
wire fraud statutes.
Discussion
1. The First Amendment Prohibits Content-Based Regulation Of
Hate Speech
It must be recognized, as a starting point, that the First
Amendment forbids regulation of "hate speech" based on the content
of that speech. The government cannot enact content-based
regulations on speech in general, nor can it single out "hate
speech" for regulation.
This principle was definitively established by the Supreme
Court last year in R.A.V. v. City of St. Paul, 112 S.Ct. 2538
(1992). In R.A.V., a black family in a predominantly white
neighborhood in Minnesota endured a racially motivated cross
burning on its lawn. The perpetrators were successfully prosecuted
in the Minnesota courts under a municipal law that outlawed hate
speech and related conduct.
The Supreme Court invalidated the law. Its sweeping ruling
left no doubt that all content-based regulations of protected
speech, regardless of their purpose, run afoul of the First
Amendment's protection of freedom of speech. Hate speech directed
at racial, ethnic or religious groups may be repugnant, but it is
no more than the expression of the speaker's viewpoint, and cannot
be restricted. As the Court said, "Let there be no mistake about
our belief that burning a cross in someone's front yard is
reprehensible. But St. Paul has sufficient means at its disposal
to prevent such behavior without adding the First Amendment to the
fire."
Neither Congress nor the Executive Branch can override the
R.A.V. decision, since the Supreme Court is the ultimate
interpreter of the Constitution for the federal and state
governments.
Yet both Congress and NTIA suggest that despite the Supreme
Court ruling, Congress is free to regulate hate speech as necessary
for the control of hate crimes. In Section 135 of the
Telecommunications Authorization Act of 1992, Congress directs NTIA
to, "analyze information on the use of telecommunications . . . to
advocate and encourage violent acts and crimes of hate . . . [and
to] include any recommendations deemed appropriate and necessary
by NTIA."
Public advocacy, regardless of the object, is fully protected
by the First Amendment. Advocating hate crimes is no exception to
this rule. Accordingly, Congressional regulations to control the
use of telecommunications "to advocate and encourage violent acts
and crimes of hate" would run hopelessly afoul of the First
Amendment. The most important "information" on the use of
telecommunications for hate crime advocacy is the information that
such advocacy cannot be regulated by Congress.
Nonetheless, NTIA is currently acting under Congressional
direction, and seeks reports of instances of the use of
telecommunications for hate crime advocacy. In addition, NTIA is
exploring the political acceptability of regulating hate speech in
telecommunications.
For instance, NTIA bluntly suggests that a bulletin board
system operator could be forced by the government to censor hate
speech messages: "Some have questioned whether, if computer
bulletin boards become ubiquitous, the operator of a bulletin board
system should have the ability to restrict the types of messages
listed on it, or should have access to private messages on the
system to enforce such restrictions."
Any laws requiring such message-type restrictions are totally
unacceptable. They would utterly chill speech on computer bulletin
boards, and violate R.A.V.'s prohibition on content-based
regulation of hate speech. In addition, government-ordered
intrusions into private electronic mail to restrict hate speech
would violate the federal Electronic Communications Privacy Act,
which guarantees that private electronic transmissions will be
safeguarded from all but the most carefully authorized government
searches or seizures.
NTIA goes even further, discussing the physical mechanism by
which hate speech censorship could be exercised: "New Developments
in telecommunications technologies may offer a means of preventing
. . . hate crimes. . . . [W]ith respect to computer bulletin
boards, computer software can allow computer bulletin board
operators to eliminate unwanted messages from their systems." It's
unclear whether NTIA is talking about a system operator manually
removing messages deemed "unwanted" by the government, or setting
up some kind of automatic computer program to filter out messages
with bad words or themes. Either way, it's content-based
regulation, and it is prohibited by the First Amendment.
NTIA also disregards the powerful First Amendment bias against
any regulation of telecommunications operators (aside from a
perfunctory acknowledgment that a freedom of speech viewpoint
exists). To the contrary, NTIA apparently assumes that regulation
of telecommunications is freely available whenever Congress deems
it necessary. For instance, at one point NTIA asks:
"[B]roadcasters are subject to certain "public interest"
obligations . . . Most point-to-point voice and data service is
provided by common carriers subject to the authority of state and
federal regulatory agencies . . . Computer bulletin boards are
private, unregulated communications systems. To what degree do
such legal and regulatory distinctions affect the commission and
prevention of hate crimes using telecommunications?"
The above sketch of the regulatory climate implies that
computer bulletin boards are as regulable as broadcasters and
common carriers. This is simply not so.
In fact, "unregulated" is the Constitutional default setting
for all speech distribution systems, including computer bulletin
boards. Radio communications and common carriers are currently
subject to some regulation, but this does not flow from any basic
principle that regulating speech-carrying media is a readily
available option. Regulation of these media is mostly a result of
historical accident, coupled with a failure to predict the First
Amendment dimension of these media at the time the regulations were
first imposed.
Broadcasters and common carriers are differently regulated,
and regulated for different historical reasons. Only airwave
broadcasters are subject to content-based "public interest"
standards, on the sole basis that there are more applicants for use
of the frequency spectrum than available frequencies. Those best
serving the "public interest" are granted licenses. The "public
interest" licensing approach has traditionally permitted a certain
amount of attention to the content of broadcasted material. But
such regulation is justified only by the scarcity of separate
broadcast frequencies. In contrast, computer bulletin boards and
nodes on the Internet, to name two widespread new means of
telecommunication, do not suffer any scarcity of communications
channels, so neither licenses nor license standards are necessary.
Telephone common carriers are regulated due to the monopoly
aspect of local carriers, and because the telephone system was
initially viewed as a traditional regulated public utility similar
to railroads and power suppliers. However, a cornerstone of common
carrier regulation is that the common carrier has no responsibility
for the content of speech carried on the system. Thus, it also
provides no precedent for adding regulation to BBSs.
Those urging new telecommunications regulations have to show
that it's worth abridging the First Amendment to make room for such
regulations. Neither Congress nor NTIA have done that, but such
proof must be made before they can legally pursue regulatory
agendas.
Preventing the "hate crime" intimidation of people or groups
by others is a laudable goal and a growing necessity. It seems
that hate groups such as the neo-Nazis and Ku Klux Klan are
healthier than ever. Reasonable regulations to keep these groups
from hurting others are welcome. But speech, hurtful as it might
be, must continue to be spared from regulation.
Are Congress and NTIA dedicated to regulating hate crimes out
of existence, regardless of the First Amendment? SEA would like
to think not.
2. Other First Amendment Problems with Regulations Suggested by
Congress and NTIA
Aside from the absolute ban on content-based speech
restrictions, there are other fundamental First Amendment problems
with the hate speech regulations being explored by Congress and
NTIA.
First, any law or regulation that would single out "hate
speech" from other hate crime conduct for special criminal
treatment is patently illegal under the First Amendment. For
example, in Simon & Schuster, Inc. v. New York State Crime Victims
Board, 112 S.Ct. 501 (1991), the Supreme Court threw out New York's
"Son of Sam" law, which sought to deny to convicts all profits from
publicizing their stories, diverting the compensation instead to
a state-run crime victims' compensation board. The Supreme Court
declared the New York law void because it singled out publishing-
related activities by convicts, and left other money-making
activities by convicts untouched. The result was a special
regulation aimed only at convicts' speech activities, which cannot
stand under the First Amendment. The Court pointed out: "In short,
the State has a compelling interest in compensating victims from
the fruits of crime, but little if any interest in limiting such
compensation to the proceeds of the wrongdoer's speech about the
crime."
The Congressional enabling act language is just as narrowly
focused on speech activities, to the exclusion of all else, as the
Son of Sam law that was ultimately determined unconstitutional.
The "scope of report" requested by Congress from NTIA is limited
to "use of telecommunications . . . to advocate and encourage" hate
crimes. NTIA was not requested to report on the role of
telecommunications in hate crimes generally, but solely its role
as a distributor of speech. Any ensuing hate crime regulations
that might be proposed by NTIA and enacted by Congress, if they
retain the same speech-only focus, would clearly violate the
Supreme Court's Son of Sam ruling.
Second, as discussed above, NTIA suggests that operators of
private computer bulletin boards could be forced by law to restrict
hate messages on their systems. This would be no less than the
government forcing sysops into a censorship role. However,
saddling bulletin board operators with such message monitoring
requirements would create an enormous chilling effect on the
operation of bulletin boards. Many bulletin board systems would
suffer diminished operations or shut down from sheer administrative
overload, while others would close up shop due to their operators'
refusal to act as government censors. This would not only affect
the hate speech the government is concerned about, it would
severely damage the immensely greater flow of productive, rightful
speech engaged in regularly by computer bulletin board users.
The First Amendment absolutely forbids this kind of
governmental burden on distributors of protected speech, as
recognized in the seminal case of Cubby v. CompuServe, 776 F. Supp.
135 (S.D.N.Y. 1991), recently decided in the Southern District of
New York. Relying on the Supreme Court's protection of a book
store from burdensome legal review requirements in Smith v.
California, 361 U.S. 147 (1959), the district court held that
CompuServe, in its role as a large-scale bulletin board operator,
was protected by the First Amendment from actively monitoring its
system for illegal materials. Such First Amendment protection
similarly prohibits any attempt to force bulletin board operators
to monitor their systems for hate speech.
3. Is There Any Permissible Means of Countering the Role of
Telecommunications in Hate Crimes?
While opposing all violations of the First Amendment
protection of telecommunications, SEA recognizes the legitimate
Congressional need to stamp out hate crimes. SEA asserts that
there are means of combating the use of telecommunications in hate
crimes which do not infringe on First Amendment rights.
The primary use of telecommunications should be, as NTIA
itself puts it, to create "more speech" about hate crimes. Public
education by the news media on hate crimes and the enormous,
unjustifiable damage they cause can lead to a reduction of such
crimes in the long term. Congress should also investigate use of
its spending power (as opposed to attempts at speech regulation)
to add the government's voice to the discussion of hate crimes,
thus increasing public education on the subject beyond that
provided by news media fueled primarily by market forces.
Another possible model for Congressional action is to develop
telecommunications channels to assist those who are working on hate
crimes and other community problems. For example, there are
projects now underway in New York City that use electronic
communications to increase contact, support and a sense of shared
community among its citizens, and reduce the incidence of hate
crimes. These include Youthline, a project to give Community Board
youth coordinators city-wide online access to the full range of
city youth services, and the Stop-the-Violence project, currently
developing a computer bulletin board to assist in reducing racism
and achieving other City and community goals.
Another possibility is to develop a new federal hate crime
law, modeled after the existing federal mail fraud and wire fraud
statutes. Such a law would define "hate crimes" as a federal
offense, and prohibit the use of interstate telecommunications
facilities in the commission or attempted commission of hate
crimes. It would be essential that the law be speech-neutral. The
use of telecommunications facilities to commit crimes would be
prohibited, but not any expression of views or positions, even
views properly characterized as "hate speech." One test of the
legality of any such law under the First Amendment would be whether
it would permit people to broadcast "hate speech" viewpoints 24
hours per day to many thousands or even millions of people, without
becoming liable for committing a hate crime. The SEA would be
happy to work with the NTIA and other federal organizations that
may wish to pursue drafting such laws, to assure they do not
inadvertently restrict speech or other First Amendment rights.
There are other areas which Congress might legally explore,
but which are not supported by SEA. One possibility is use of the
FCC broadcast licensing mechanism to regulate hate speech under the
"public interest" mechanism. Such regulation could legally be
applied to radio frequency broadcasters only, and only through the
existing license granting or renewal mechanism. Again, SEA does
not endorse such an approach, since it is still essentially a
penalty to those who express certain ideas or viewpoints, and would
have a certain chilling effect on speech.
Conclusion
NTIA's current task of investigating telecommunications and
hate crimes could have far-reaching effects on telecommunications
regulation in this country. NTIA is charged with making
recommendations to a Congress interested in the "role
telecommunications play in hate crimes," and it has been given an
exceedingly short time to perform its research and develop policy
proposals.
Given the limited time available, it may be difficult for NTIA
to fully consider all sides of the issues. Nonetheless, it is
vitally important to insure that our government does not unlawfully
abridge our First Amendment rights of free speech in the name of
regulating hate crimes.
With this letter, SEA has sought to help NTIA become more
fully aware of the scope of our free speech rights in the
telecommunications area, and the dangers to those free speech
rights posed by the hate speech regulations suggested by Congress
and NTIA. It is extremely important that NTIA's research and
recommendations be directed at goals that are not only worthwhile
in themselves, but also lawful under the Constitution.
Public discussions of hate crimes are probably among the most
important public discussions we can have in our society, and the
First Amendment exists to make sure we can keep holding such
discussions. Legal measures directed against hate crimes are also
important, but they cannot be used to stifle the public discussion.
Sincerely,
Lance Rose
Member, Board of Directors
SEA Board of Directors:
Stacy Horn, Chair
Joseph King
John McMullen
Simona Nass
Lance Rose
Alexis Rosen
Paul Wallich
------------------------------
Date: 27 Apr 93 13:44:00 PDT
From: Cliff Figallo <[email protected]>
Subject: File 3--EFF Response to NTIA "Hate Crimes" Inquiry
The National Telecommunications and Information Administration (NTIA),
the executive branch agency that develops telecom policies, is doing a
study on how telecommunications affect crimes of hate and violent acts
against ethnic, religious, racial and sexually-oriented minorities. NTIA
released the following official "Notice of Inquiry; Request for
Comments" in the Federal Register.
The following is EFF's response to this Request:
===================================================================
Office of Policy Analysis and Development NTIA
U.S. Department of Commerce
14th St. & Constitution Ave., NW, Room 4725 Washington, DC 20230
April 26, 1993
RE: Notice of Inquiry; Request for Comments
Role of Telecommunications in Hate Crimes
Docket No. 930349-3049
Dear Policy Analyst,
NTIA has asked for public comment on the role of
telecommunications in hate crimes.1 The Electronic Frontier
Foundation (EFF)2 requests that the following comments be included
in the record. As described more fully below, speech made over
telecommunications networks is entitled to the fullest First
Amendment protection. Although some material may be considered
hate speech, new telecommunications technologies offer unparalleled
access to all participants for engaging in vigorous debate. Instead of
any government-initiated scheme to control Constitutionally-
protected, even if noxious, speech in this new medium, government
policy ought to promote broader access to the medium as the most
appropriate response. Such an approach would be most fully
consistent with First Amendment jurisprudence, exemplified by
Justice Brandeis's oft-quoted contention, "If there be time to expose
through discussion the falsehood and fallacies, to avert the evil by
the processes of education, the remedy to be applied is more speech,
not enforced silence."3 We urge NTIA to remain within this approach
as it considers the record in this inquiry.
The Important Role of Telecommunications
Before electronic communications became available to the common
person, the press was the chief means of educating the electorate. As
Supreme Court Justice Potter Stewart once wrote: "Enlightened choice
by an informed citizenry is the basic ideal upon which an open
society is premised, and a free press is thus indispensable to a free
society. Not only does the press enhance personal self-fulfillment by
providing the people with the widest possible range of fact and
opinion, but it is an incontestable precondition of self-government."4
Telecommunications is an even more powerful force for giving
informed governance to the people. Telecommunications provides
citizens with the power to disseminate and gather large amounts of
information, including numerous different opinions on a single
subject. This ability to gather differing opinions is essential to a
person's ability to make critical choices.
The government has a very strong obligation to protect a person's
right to express opinions and to be exposed to the varying opinions
of others. The First Amendment of the Constitution holds that
"Congress shall make no law . . . abridging the freedom of speech. . .
."5 This does not simply mean protection of speech that is "politically
correct." This protection extends to all speech, and the protection is
especially important for speech that is not popular. As the Supreme
Court has said, "[I]f there is a bedrock principle underlying the First
Amendment, it is that the government may not prohibit the
expression of an idea simply because society finds the idea itself
offensive or disagreeable."6
Hate Speech on Electronic Bulletin Board Systems and Computer
Networks
EFF is especially concerned with NTIA's inquiry into the use of
electronic bulletin boards (BBSs) for advocating and encouraging
violent acts and the commission of crimes of hate. BBSs are a
relatively new form of communication, and it is important that the
speech that takes place over computer networks is given the same
First Amendment protections as all other speech. In fact, there are
reasons that words communicated over BBSs and computer networks
should be given even greater protection than speech that is
communicated through other media.
There are currently over 45,000 privately run BBSs in the United
States, and that number is growing exponentially.7 Electronic bulletin
boards can be general in scope, or they can be dedicated to one
particular topic The number of topics for which there currently are
BBSs is only limited by the imagination. For example, in the
Washington, D.C. area, there are bulletin boards dedicated to
gardening, horse shows, Shriners, religion, handicapped issues,
financial management, humor, fossil energy, radiological health,
amateur radio, medieval fantasy, and, of course, computer
programming tips.8
Undoubtedly, there are some bulletin board systems that carry hate
speech. A 1985 study by the Anti-Defamation League of the B'nai
B'rith (ADL) reported that the Aryan Nations ran a BBS out of Idaho
(accessible through local calls in Idaho, Texas and North Carolina) and
the neo-Nazis ran a BBS out of West Virginia. The first board, called
the "Aryan Nation Liberty Net," described itself as "a pro-American,
pro-white, anti-Communist network of true believers who serve the
one and only God -- Jesus, the Christ." It essentially carried three
categories of information: hate propaganda (against Jews, other
minorities and the federal government), purported enemies of the
cause (listing individuals and organizations that were "race traitors"
and sometimes asking users to post where these "enemies" could be
found), and listings of "patriotic groups" (such as neo-Nazi and Klan
organizations) and their addresses.9
While the ADL study is over eight years old, hate speech on bulletin
boards is probably even more prevalent today. Once reserved only
for boards that catered to this type of speech, hate speech can now
be seen on national information service providers catering to the
general public. In October of 1991, Prodigy, one of the largest
information services providers, was the site of a heated discussion
about the Holocaust of World War II. Many messages were offensive
to Jews and other users of the service. For example, one message
said, "Hitler had some valid points too . . . Remove the Jews and we
will go a long ways toward avoiding much trouble." Other messages
claimed that the Holocaust never occurred.10 Many people were
incensed over the messages and demanded that the messages be
removed from Prodigy's public message areas.
But the Prodigy incident exhibits precisely the reason why the
government should _not_ become involved in censoring hate speech
(or any kind of speech) on electronic bulletin board systems. After
the derogatory messages were posted on Prodigy, a large discussion
ensued, and many Prodigy users responded to the hateful statements
by presenting recitations of historical facts and criticizing the original
posters as being bigots. The discussion on Prodigy turned out to be a
rather fair exchange, with both sides of the issue explaining their
viewpoints, and each side being given the opportunity to learn more
about the other. The hate speech was exposed as being just that --
hate speech -- and the posters of the messages had a tough time
convincing the other users in the merits of their assertions.
However, the print press sensationalized the story. Headlines such as
"Hate Speech Enters Computer Age"11 and "Computer as Forum of
Hate Poses Problem"12 appeared and caused many outside groups to
become outraged that hate messages could be publicly posted. What
these groups did not understand was that after the hate messages
had been publicly posted, they were publicly refuted by others who
had the same access to the same medium.
Unfortunately for those of us who care about free speech, Prodigy
received numerous complaints from the ADL and others, and, after
initially resisting any change in policy, Prodigy eventually gave in
and removed the derogatory messages and changed its policy
regarding hate speech. Prodigy now says that it will bar any future
postings that are "grossly repugnant to community standards."
Prodigy staff members make such determinations on a case-by-case
basis. Many users -- in fact, many more users than had initially
complained about the hate speech -- were outraged by Prodigy's
change in policy, claiming that their rights to free speech were being
abridged. But Prodigy, a privately-owned company, stuck to its new
policy.13
However, the government is not a privately-owned company. The
government's obligation to not abridge speech is Constitutionally
mandated. Any consideration on the part of the government to
censor speech in any way should be approached with extreme
caution.
BBSs are proving to be an even better medium than any that have
come before to share opinions and protect the basic freedom of
speech that is central to our civil liberties. Computer bulletin board
systems and networks are accessible to anyone with a computer and
a modem. And if users of a BBS do not like something another user
has posted, the users have available to them the same medium that
delivered the noxious speech to refute it. In network
communications, it is common to "flame," or verbally put down, a
person whose speech is offensive. Since all users of computer
networks and electronic bulletin boards have access to that medium
of speech, all speech can lead to discourse.
While private bulletin boards must be able to continue to make their
own determinations regarding the information they allow to be
posted and the individuals who can access their facilities, the
government must make rules that keep access to this medium (albeit
not access to particular boards) open to all on a nondiscriminatory
basis. This is crucial to ensure that the ability to be heard remains
with every individual. As soon as this medium is restricted to use
only by those who have the money, or by those who say things that
are "politically correct," it is no longer a medium that fosters and
encourages the public debate that is so vital to our functioning as a
democratic society.
In a case that the United States Supreme Court intends to hear on
appeal later this term, Wisconsin v. Mitchell,14 the Wisconsin
Supreme Court eloquently explained the delicate balance that must
be struck between hate speech and the First Amendment:
"In the wake of the Los Angeles riots sparked by the acquittal of four
white police officers accused of illegally beating black motorist
Rodney King, it is increasingly evident that racial antagonism and
violence are as prevalent now as they ever have been. Indeed, added
to the statistical compilation of bias related crimes could be the
vicious beating of white truck driver Reginald Denny by black
rioters, horrifyingly captured on film by a news helicopter. As
disgraceful and deplorable as these and other hate crimes are, the
personal prejudices of the attackers are protected by the First
Amendment. The constitution may not embrace or encourage bigoted
and hateful thoughts, but it surely protects them.
"Because we wholeheartedly agree with the motivation of the
legislature in its desire to suppress hate crimes, it is with great
regret that we hold the hate crimes statute unconstitutional -- and
only because we believe that the greater evil is the suppression of
freedom of speech for all of us."
While EFF agrees that hate speech may be a contributing factor in the
commission of hate crimes, the current Congressionally-mandated
study begins with the wrong question when it comes to hate speech
on BBSs. NTIA should not be considering ways to limit this type of
speech. Instead, NTIA should be concerning itself with ways it can
ensure access to all who care to make opinions known. By ensuring
access to all citizens, when hate speech is espoused, that speech can
be appropriately disagreed with and discussed by others with an
equal voice. The best defense against those who preach hate is
exposure, ridicule and reasoned discourse. Discourse of this type is
the most basic of our civil liberties.
For this reason, the Electronic Frontier Foundation respectfully asks
that the NTIA make no recommendations to Congress that might
undermine our basic rights to freedom of expression, and instead
suggest ways to protect every citizen's access to media that will give
each of us a voice. As the Prodigy case showed, allowing the
opportunity for more speech is the best antidote for hate speech.
Thank you in advance for your thoughtful consideration of our
concerns. We would be pleased to provide NTIA with any further
information that may be needed.
Sincerely yours,
Shari Steele
Staff Attorney
1 NTIA has indicated that it intends to study crimes of hate against
"ethnic, religious, and racial minorities" and "those based on sexual
against any of these other groups. While EFF hopes that your
speech, your findings would be remiss if you did not include women
as victims of hate crimes in your research.
2 The Electronic Frontier Foundation is a privately funded, nonprofit
organization concerned with the civil liberties, technical and social
problems posed by the applications of new computing and
telecommunications technology. Its founders include Mitchell Kapor,
a leading pioneer in software development who was the first CEO of
the Lotus Development Corporation and developed the Lotus 1-2-3
Spreadsheet software; John Perry Barlow, a rancher, writer and
computer enthusiast; and John Gilmore, a cryptography expert and
one of the original founders of Sun Microsystems.
3Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J.,
concurring).
4Brazburg v. Hayes, 408 U.S. 665, 726-7 (1972) (Stewart, J.,
dissenting).
5U.S. Const. amend. I.
6Texas v. Johnson, 491 U.S. 397, 414 (1989).
7BBS magazine editor Jack Rickard estimated that there were 41,000
bulletin board systems in the United States as of March 1992, triple
the number of boards in existence 18 months earlier. It is difficult to
determine the exact number of computer bulletin board systems in
operation, because many are private and one must know the
operator to use them. Gilbert, Computer Bulletin Board Operator
Liability for User Misuse, 54 Fordham L. Rev. 439, 441 (December
1985) (citing Soma, Smith & Sprague, Legal Analysis of Electronic
Bulletin Board Activities, 7 W. New Eng. L. Rev. 571, 572 (1985)).
8Focke's Monthly Listing of Verified DC BBS Numbers (March 1993).
9Anti-Defamation League of the B'nai B'rith, "Computerized Networks
of Hate: An ADL Fact Finding Report" (January 1985).
10Leroux, "Hate speech" enters computer age, Chicago Tribune
(October 27, 1991).
11Chicago Tribune (October 27, 1991).
12Los Angeles Times (November 16, 1991).
13See footnote 8.
14169 Wis. 2d 153, 485 N.W.2d 807 (1992).
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End of Computer Underground Digest #5.33
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