By David L. Hudson Jr., First Amendment Scholar, and Mahad Ghani, First Amendment Center Fellow
Last updated: September 18, 2017
The Internet revolutionized the way in which people share information and communicate with each other. But by providing an open forum for people to communicate with each other, the Internet also paved the way for speech that is usually reserved for the edges of society. Racists, misogynists, xenophobes, and terrorists have used the Web as a haven to communicate their noxious views, harass others, and even plan nefarious deeds.
Some Web sites deny that the Holocaust occurred. Others promote the beating of gays and lesbians. Still others rail against Muslims and Islam in the United States, or are anti-Christian. The 2016 election illuminated the extent that “fake news” had infiltrated society, resulting in incidents like an man armed with an assault rifle entered a family pizza restaurant because of false reporting he had read online in the “Pizzagate” incident. Many such sites target young people and seek to promote their hateful ideologies.
“From cyberbullying to terrorists’ use of the Internet to recruit and incite, Internet hate speech is a serious problem,” said Christopher Wolf, immediate past chair of the International Network Against Cyber-Hate, in an e-mail interview. “The most notorious hate crimes of late — such as the shooting at the Holocaust Museum (in Washington, D.C.) — were committed by individuals who used the Internet to spread hate and to receive reinforcement from like-minded haters, who made hatred seem normal and acceptable.”
Some contend that hate speech infringes on the 14th Amendment’s guarantee of equal protection under the law. Alexander Tsesis, for example, wrote in a 2009 article that “hate speech is a threatening form of communication that is contrary to democratic principles.” 1
However, the First Amendment provides broad protection to offensive, repugnant and hateful expression. Political speech receives the greatest protection under the First Amendment, and discrimination against viewpoints runs counter to free-speech principles. Much hate speech qualifies as political, even if misguided. Regulations against hate speech are sometimes imposed because the government (at any level) disagrees with the views expressed. Such restrictions may not survive constitutional scrutiny in court.
Furthermore, the U.S. Supreme Court in Reno v. ACLU (1997) noted (albeit in a non-hate speech context) that the Internet is entitled to the highest level of First Amendment protection, akin to the print medium. In other words, online hate speech receives as much protection as a hate-speech pamphlet distributed by the Ku Klux Klan.
Given these factors — high protection for political speech, hostility to viewpoint discrimination and great solicitude for online speech — much hate speech is protected. However, despite its text — “Congress shall make no law … abridging the freedom of speech” — the First Amendment does not safeguard all forms of speech.
Unless online hate speech crosses the line into incitement to imminent lawless action or true threats, the speech receives protection under the First Amendment.
In Brandenburg v. Ohio (1969), the Supreme Court said that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
Most online hate speech will not cross into the unprotected category of incitement to imminent lawless action because it will not meet the imminence requirement. A message of hate on the Internet may lead to unlawful action at some indefinite time in the future — but that possibility is not enough to meet the highly speech-protective test in Brandenburg.
For this reason, some legal commentators have urged that the Brandenburg standard be modified with respect to online hate speech. One commentator wrote in 2002: “New standards are needed to address the growing plague of Internet speech that plants the seeds of hatred, by combining information and incitement that ultimately enables others to commit violence.” 2
Another agreed, writing: “Although Brandenburg may be suitable for the traditional media outlets, which were well-established when it was decided, Internet speech and many unforeseen changes have made such a standard outdated.” 3 Still another called for a revised imminence requirement in Internet hate-speech cases to update Brandenburg and make it applicable online. 4
Some online hate speech could fall into the unprotected category of true threats. The First Amendment does not protect an individual who posts online “I am going to kill you” about a specific individual. The Supreme Court explained the definition of true threats in Virginia v. Black (2003) — in which it upheld most of a Virginia cross-burning statute — this way:
“‘True threats’ encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protect(s) individuals from the fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility that the threatened violence will occur.”
The Court in Virginia v. Black reasoned that crosses burned with an intent to intimidate others could constitutionally be barred as provided in the Virginia law. (But the Court did strike down a part of the law that said there was a presumption that all cross-burnings were done with an intent to intimidate; for instance, in the consolidated cases the Court considered, one involved a cross-burning with a property owner’s permission.) Thus, online hate speech meant to communicate a “serious expression of an intent” to commit violence and intimidate others likely would not receive First Amendment protection.
A few cases have applied the true-threat standard to online speech. In Planned Parenthood v. American Coalition of Life Activists (2002), the 9th U.S. Circuit Court of Appeals held that some vigorous anti-abortion speech — including a Web site called the Nuremberg Files that listed the names and addresses of abortion providers who should be tried for “crimes against humanity” — could qualify as a true threat. The 9th Circuit emphasized that “the names of abortion providers who have been murdered because of their activities are lined through in black, while names of those who have been wounded are highlighted in grey.”
Similarly, the 5th U.S. Circuit Court of Appeals ruled in U.S. v. Morales (2001) that an 18-year-old high school student made true threats when he wrote in an Internet chat room that he planned to kill other students at his school.
Even in the speech-restrictive world of the military, the U.S. Court of Appeals for the Armed Forces ruled in United States v. Wilcox (2008) that a member of the military could not be punished under the Uniform Code for Military Justice for posting racially offensive and hateful remarks he made over the Internet about white supremacy. The court wrote that the service member’s “various communications on the Internet … are not criminal in the civilian world … [and] did not constitute unprotected ‘dangerous speech’ under the circumstances of this case. No evidence was admitted that showed the communications either ‘interfere[d] with or prevent[ed] the orderly accomplishment of the mission,’ or ‘present[ed] a clear danger to loyalty, discipline, mission, or morale of the troops.’”
The Supreme Court turned their eyes towards social media to determine whether speech online could constitute a threat in Elonis v. United States (2015). The case involved an individual that posted rap lyrics on his Facebook page in which he threatened to kill his ex-wife. He was charged for conveying threats across state lines.
When the case arrived to the Supreme Court, the case revolved around determining whether a post on social media crossed into the realm of the True Threat standard. The Court chose to apply a reasonable person standard to determine whether the threshold had been met. They ultimately ruled that a reasonable person would not have found the rap lyrics to be a true threat, and reversed the decision.
Since the Supreme Court decision, there have been cases filed when children have used things like bomb emojis and have faced penalties. The Supreme Court choosing to apply a reasonable person standard will likely guide these cases moving forward.
If hateful Internet communications do not cross the line into incitement to imminent lawless action or a true threat, they receive First Amendment protection. The First Amendment distinguishes the United States from other countries. Alan Brownstein and Leslie Gielow Jacobs, in their book Global Issues in Freedom of Speech and Religion, write that the U.S. is a “free[-]speech outlier in the arena of hate speech.” Many other countries criminalize online hate speech.
With social media and the Internet increasingly resulting in real world acts of violence, and as a recruiting tool for terrorists, it is likely the law will change to address the changing times.
Wolf, chair of the Anti-Defamation League’s Internet Task Force, said much could be done to counter online hate speech besides criminalizing it. “There is a wide range of things to be done, consistent with the First Amendment, including shining the light on hate and exposing the lies underlying hate and teaching tolerance and diversity to young people and future generations,” he said. “Counter-speech is a potent weapon.”
With where the law currently stands, hate speech is protected so long as it stays in the realm of just speech. The great Supreme Court Justice Oliver Wendell Holmes wrote that “if there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.” The Constitution ensures freedom of speech for all by fighting to protect even the most vile speech of all.
3 Jennifer L. Brenner, “True Threats — A More Appropriate Standard for Analyzing First Amendment Protection and Free Speech When Violence is Perpetrated over the Internet,” 78 North Dakota L. Rev. 753, 783 (2002).