Jae-Jin Lee, Ph.D.

Hanyang University

South Korea

Hate speech is a complicated issue that American society has faced. It is more complicated when it is connected with the Internet. The Internet is a descendent of the NSF (National Science Foundation) Net created by the government to accelerate rapid communications among research centers at remote academic and governmental institutions,¹⁾serving as a conduit for a mass network of computers around the world.²⁾ Today, host computers consist of colleges, universities, scientific and research agencies, computer companies and the government.³⁾

A unique feature of being able to post messages to everyone with an electronic address without editorial control or the intervention of the government seems to make the Internet become the most powerful democratic tool ever devised. The Internet can offer uninhibited expression and exchange of opinions that bear not merely transition but ¡°sharing, participation, association, or possession of common faith¡± in the communication process.⁴⁾

Adherents of every breakthrough of the past have claimed that technological innovation will alter society and bring about a paradise. However, those who have negative views on the Internet maintain that it essentially means loss of privacy, breakdown of confidentiality and new forms of crimes such as hate speech.

On-line hate speech has something to do with the increasing hate sites in cyberspace.⁵⁾ Most of the hate group sites are American and many can be accessed through Stormfront.⁶⁾ It provides a link to the National Alliance, a group that believes mass racial confrontation is prevalent in Europe and the United States.⁷⁾ Neo-Nazis publishes anti-Nazi hit lists and offers followers lessons on bond assembly. On a youth oriented resistance site, racist pop records are sold by groups like Nordic Thunder and Rahowa (Racial Holy War).⁸⁾ Holocaust denial is a rapidly expanding topic.⁹⁾ An Internet site offers a thirty-minute documentary filmed at Auschwitz purportedly showing the site of a gas chamber to prove no one was killed at the camp.¹⁰⁾

While on-line hate speech is now becoming a social issue, it is especially problematic on campuses where both freedom of speech and tolerance of others are of great value. This study will focus on on-line hate speech issues on the U.S. campus. First, this study defines what is hate speech and reviews theoretical and legal discussions of hate speech problems. Then, it sheds light on recent legal issues on campus in conjunction with the Internet. Finally, it argues that a new framework of regulations should be established in consideration of its effect of on-line hate speech and the international trend in regulation.

Hate speech is the generic term that has come to include the use of speech attacks on race, ethnicity, and sexual orientation or preference.¹¹⁾ It is abusive, insulting, intimidating and harassing.¹²⁾ And it may lead to violence, hatred or discrimination. However, in the United States, hate speech has typically been conceived the price the society has to pay for safeguarding free expression.

Perhaps the most famous defense of the right to express hatred took happend in the case of Skokie, Illinois, in l977 when a neo-Nazi group tried to march on the public street in a community populated by many Holocaust survivors.¹³⁾ The U.S. courts affirmed their right to do so, relying their judgement on the First Amendment theories. They claimed that such a ruling was ultimately to the benefit of racial and other minorities, protecting their rights to express their own views freely.

While hate speech largely reflects conditions of American society, it has a special meaning for campuses. On the one hand, there is no doubt that colleges and universities are a particular area of protection as far as the First Amendment rights of expression are concerned.¹⁴⁾ On the other hand, however, a number of schools began to adopt speech codes to alleviate increasing tension among students, faculty and administrators over racial, religious, and sexual orientation.¹⁵⁾

Legal and journalism scholars are divided in the discussions about hate speech on campus.

A. Regulation Opponent Position

A common assumption of the opposition perspective is that suppression of speech intensifies the sentiments of those silenced by law, while denying to everyone the opportunity to seek and discover wisdom through debates and the clash of ideas.¹⁶⁾ The philosophical base of this position is inherited from liberal First Amendment doctrines and the market place of idea metaphor. Those scholars with this position generally argue that campus bans on racist speech will inhibit the exchange of controversial ideas and undermine the university's commitment to unfettered inquiry. They find speech codes outrageous, considering them violations of free speech right. It also finds that by speech codes, campuses would fall under the spell of radical muticulturalists and politically correct thought police.¹⁷⁾

They see a direct relationship between the appearance of campus speech codes in the 1980s and the so-called ¡®political correctness movement.¡¯ They define political correctness as the forced study and acceptance of leftist ideas on politics, race and sex, originally promoted on campus by college professors who were radicals during the 1960s and 1970s.¹⁸⁾ Although they acknowledge that political correctness touches some of America¡¯s deepest concerns, they maintain that teachers and students wishing to express ideas are stifled by the threat of sanctions and therefore sacrifice education goals, while students who might be offended are never given an opportunity to develop reasoning skills because there is no idea or speech to counter.¹⁹⁾

They also claim there is little connection between hate speech laws and the lessening of ethnic and racial violence or tension. Some other scholars who have more pessimistic perspectives assert²⁰⁾;(1) that pressing for hate-speech regulation is a waste of time and resources²¹⁾; (2) that white society will never tolerate speech codes, so that the effort to have them enacted is quixotic, symbolic, or disingenuous; (3) that racist expression is useful bellwether that should not be driven underground²²⁾; (4) that encouraging minorities to focus on slights and insults is harmful because it causes them to see themselves as victims; and (5) that the cure is worse than the disease, because it institutionalizes censorship, and "two wrongs don't make a right."²³⁾

Proponents of speech codes generally argue that hate speech by its nature causes serious harm to minority groups. They maintain that such speech on campus inevitably creates an intimidating, hostile or demeaning environment for education and university-related work. Proponents can generally be divided into four categories of approach.

1. Fighting words approach

Taken in context for minority cases dealing with hate speech, this approach refers to hate speech as fighting words. This approach is fundamentally based on a view that factually false statements are not entitled to First Amendment protection. Charles Lawrence argues that because minority students are far more likely to feel overwhelmed by the numerical superiority of white students and merely succumb to the speech and realize that a violent response to fighting words will result in a risk to their own life and limb, they are forced to remain silent and submit.²⁴⁾ Richard Delgado argues that hate speech is really a form of assault constituting the tort of intentional infliction of emotional distress.²⁵⁾

2. Critical market-place-of-ideas approach

This approach is skeptical of free marketplace of ideas assumptions. It denies that the contest is truly fair, given the power disparities that separate whites from non-whites in the society. This approach thinks of the response to hate speech as futile because statements of hatred against racial and ethnic minorities and homosexuals are linked to deep-seated emotional attitudes.

Gale, criticizing libertarian contributions to educational discourse, to those of the victims, suggests a "timid and limited" proposal to prohibit any message on campus "targeting specific individuals for harassment that threatens to destroy the Fourteenth Amendment right to education equality and the First Amendment right to equal liberty and equal voice."²⁶⁾ Greenwalt says that racial and ethnic epithets and slurs are of slight expressive value.²⁷⁾ He adds that endurance to epithets is much easier when one is a member of a privileged majority than when one belongs to a reviled minority. Finding fault with the illusory nature of the First Amendment's absolutism, Kretzmer argues that racist speech is unique because of its catastrophic history and the universal condemnation of racism. He maintains the emphasis be shifted from freedom to the ideal of equality.²⁹⁾

3. Outsider jurisprudence approach

This approach goes a step further than any other approach in that it endorses formal criminal and administrative sanctions for racist speech. Mary Matsuda maintains that the hate speech problems should be resolved by outsider jurisprudence where the hate speech may be regulated based on the severe harm that results from such speech and the emerging standard of international law criminalizing racial hate messages.³⁰⁾ Similarly, George Wright claims that racial epithets should be restricted so long as alternatives or "semantic substitutes" exist.³¹⁾

4. Feminist approach

An attack of feminists on discrimination against women in all its forms furnishes a close parallel to opponents of hate speech on campus.³²⁾ Even though the feminist perspective seems distinct from the campaign against hate speech, there is a close philosophical analogy between the two campaigns. MacKinnon emphasizes the equality aspects from the racist and sexist speeches. She adds that not only equality on campuses and in workplaces would be promoted, but also racist, sexist remarks would be prohibited, when reasonable regulations on such assaults would be made.³³⁾ Andrea Dworkin tries to outlaw pornography based on the view that pornography is in effect hate speech. She criticized that pornography treats women as sexual objects and subordinates them in a vile way to men.³⁴⁾

American universities and colleges have grown diverse over the past two or three decades as students from nearly every racial and ethnic background have called for rightful places in higher education.³⁵⁾ This change, however, has been accompanied by prejudice and conflict. Since the early 1980s, universities and colleges have witnessed an increase in discriminatory expression and harassment on campus. The National Institute against Prejudice and Violence found that one-fourth of all minority students are currently becoming the victim of hate crime on campus.³⁶⁾ For this reason, many schools have established speech codes that attempt to reduce hurtful expression.³⁷⁾

Hateful expression includes epithets yelled from passing cars, spoken face-to-face in academic settings, scrawled on dormitory doors and walls, or placed in mailboxes.³⁸⁾ According to speech codes, speech that offends any group based upon race, gender, ethnicity, religion or sexual orientation is prohibited. Some universities and colleges treat words that create a hostile educational atmosphere or threaten a student's academic efforts as harassment, and punish offenders accordingly.³⁹⁾

Educational institutions confronted with the problem of discriminatory expression on campus have considered adoption of a hate-speech code. As the Internet use rapidly expanded and on-line hate speech is emerging as a predominant issue on campus,⁴⁰⁾ universities tend to establish or amend speech codes to bar hateful expression on the net.

A computer hacker broke into the e-mail account of a professor and fired spread anti-Black and anti-Semitic remarks to 20,000 computer users in four states.⁴¹⁾ The National Alliance was the suspected author, but anonymous identification foreclosed any possibility of holding anyone accountable.⁴²⁾ In 1994, a University of Michigan student's computer account and password were stolen to gain access to the Internet.⁴³⁾ A message from the 'Organization for the Execution of Minorities' posted a list of vicious threats against African-Americans using the student's code.⁴⁴⁾ Also, at the Indiana University, hate message had been sent via e-mail to 700 members of the Asian Student Association. The obscenity-laden statement included racial epithets and ordered the students to leave the country.⁴⁵⁾

The American Council on Education which is based in Washington and represents 1,700 colleges found out that there have been lots of reports of hate mail recently and the use of e-mail to send hate message is a growing concern on many college campuses.⁴⁶⁾ The Prejudice Institute in Baltimore that studies racial and ethnic hate crimes showed that e-mail has become the most popular communication tool on campus and that three percent of respondents reported receiving racial and hate threats by email.⁴⁷⁾

Universities and colleges had to make a decision on whether to take a rigid measure against on-line hate speech.⁴⁸⁾ University officials, technology specialists, and First Amendment scholars recognize that it is extremely tricky to balance the rights of free speech with the rights of the on-line community not to be offended or harassed than ever.⁴⁹⁾

Major universities have followed-up by implementing policies to curtail abusive on-line speech. George Mason University has a policy that prohibits students from using "computers to harass, threaten, or abuse others."⁵⁰ University of Maryland prohibits using computers to harass others but does not ban annoying messages on the Internet.⁵¹ Virginia Tech applies its student life policy prohibiting works or acts that constitute abusive conduct that demeans, intimidates, threatens or otherwise interferes with another person's rightful actions or comfort, to both off-line and on-line conduct.⁵²⁾ Additionally, Virginia Tech proscribes the use of mail or messaging services to harass, intimidate or otherwise annoy another person.⁵³⁾ The University at Buffalo subscribes to the ideology outlined in the Communications Act of 1934, which prohibits annoying and harassing communications.⁵⁴⁾ Students are urged to report any incidents of abuse to the Computing Center. In the University of Minnesota, speech that causes insensitivity to the experiences of women is banned. University of North Dakota prohibits intentional producing of psychological discomfort.

In the wake of speech codes that ban hateful on-line speech, access of users on campus to the Internet was somewhat curtailed, which generated censorship issues. Accordingly, there arises greater concern and support for the First Amendment protection of free speech. A law professor at the University of Miami believes that universities err on the side of control with sanctions and anti-hate speech policies.⁵⁵⁾ The ACLU in Florida equates the Internet to a public forum where the First Amendment is applicable, saying that users who find certain information objectionable may avoid those sites on the Internet or simply leave the public square.⁵⁶⁾

Whereas the speech codes are intended to ban hate speech on campus, public law also prohibits interstate or foreign transmission of communications especially on the subject of kidnapping, extortion, or threat to injure.⁵⁷⁾ Under the law, in 1995, a University of Michigan student, Jake Baker, was arrested for publishing a sexually violent piece of fiction in an Internet newsgroup. The reason for the arrest was that he awarded a student's name in his class as that of the story's victim.⁵⁸⁾ The government soon abandoned prosecution based on the story, focusing instead on Baker's private e-mail exchanges with a person named Gonda. A superseding indictment charged Baker with five counts of transmitting threats in interstate communication. A U.S. district Court judge later dismissed the indictment against Baker, ruling that the First Amendment barred his prosecution.⁵⁹⁾

Dellapenta case on both the state and federal level has shaped the legal definitions of appropriate behavior on the Internet. In this case, prosecutors used an anti-hacking law in addition to traditional stalking laws. The anti-hacking statute criminalized the use of a computer to put a scheme into play. In the case, the charge was described as using a computer to execute a scheme to deceive others to commit rape, said a spokeswoman for the LA County District Attorney's Office.

In two more recent federal cases, Internet users were prosecuted for hate crimes propagated by e-mail. Richard Machado, a 22-year-old man from Long Beach, Calif., was convicted of attempting to interfere with students' education on the basis of race after sending a profanity-filled threat by e-mail to students with Asian-sounding names. He stole his roomate¡¯s ID and sent a nine-line, profanity-filled e-mail messages to 59 students with Asian-sounding names in September 1996 at the University of California at Irvine. A prosecutor, in the nation¡¯s first Federal trial involving a hate crime on the Internet, said that such offenses are no less serious than hate crimes committed by traditional means in terms of Machado¡¯s intentions, the reaction of the people who received the message and the meaning of the e-mail within the brash culture of the Internet. He served a year in prison.⁶⁰⁾ Early in 1998, 21-year-old Kingman Quon of Corona, Calif., was charged under Federal hate crime statutes for sending racist threats to about 100 Hispanic people across the nation. Quon is an Asian-American who was frustrated by the perception that Hispanic people were receiving breaks through affirmative action.⁶¹⁾

It seems that new technology has rendered traditional notions unworkable.⁶²⁾ As Laurence Tribe notes, the legal framework might be built on a model that did not anticipate the computer communications revolution and subsequently the issues are not adequately addressed by our legal system.⁶³⁾ Tribe comments that the authors of the Constitution could not possibly have predicted or prepared for the present free speech controversy on the net.

Before examining how the new technology is related with on-line hate speech, it is prerequisite to know how the courts understand hate speech on campus. In Doe v. University of Michigan,⁶⁴⁾ a court found university policy unconstitutional because it deterred education in which "the free and unfettered interplay of competing views is essential to the institution's educational mission."⁶⁵⁾ The UM at Ann Arbor adopted a harassment code in response to what the Board of Regents saw as an increase in racial intolerance and harassment on campus. In 1987, unknown persons distributed a flier that described blacks as saucer lips, porch monkeys, and jigaboos. Also that year, a student disc jockey broadcast racist jokes from the campus radio station. Then, unknown persons displayed a KKK uniform from a dormitory window.

The university rule stated that students could be disciplined about happenings occurred in an academic or educational area, such as a library or computer center. A biopsychology graduate student challenged the constitutionality of the rule. He claimed he feared that under the code he could not discuss controversial theories stating that certain biological differences among the sexes and races made for differing personality traits and abilities. The court judge permanently enjoined the parts of the code, leaving those parts regulating physical conduct. The court ruled that the code was not only overly broad but also vague. The university policy swept within its scope a significant amount of verbal conduct or verbal behavior that is unquestionably protected under the First Amendment, the court held.

The courts' view on hate speech is also reflected in the decision of UMW v. Board of Regents.⁶⁶⁾ This case started with the university's institution of a policy to regulate discriminatory conduct in 1989 in response to an increase in incidents of discriminatory harassment on its 26 campuses. In 1987, a fraternity displayed a large caricature of a black Fiji Islander at a party. In 1988, a fraternity held a "slave auction" at which pledges in black face performed skits imitating black performers. In reply to the regents¡¯ contention that hate speech neither forms any part of a dialogue or exchange of views nor provide an opportunity for a reply, the court said, citing the Chaplinsky, "when speech is 'unanswerable¡¯... the First Amendment does not apply either."⁶⁷⁾ This remark of the court implies that if speech is not unanswerable, it would not deserve a First Amendment protection. Further, the court developed a standard to distinguish protected speech and unprotected speech. The court stated that unprotected speech must be racist or discriminatory, be directed at an individual, demean national origin, ancestry or age of the individual, and create intimidating and hostile activities.

The distinction between protected and unprotected speech was applied to Dambrot v. Central Michigan University.⁶⁸⁾ In this case, the court held that negative racial connotations are prohibited, but positive connotations, based on those same racial or ethnic affiliations, are allowed. However, this distinction was blurred by the basic assumption of the R.A.V. that any type of content-based restriction on speech is prohibited. The U.S. Supreme Court held that establishing content-based restrictions on speech is unconstitutional because the restrictions can limit basic requirements for the protection of pure speech. The assumption of R.A.V. extended the application of pure speech model to any type of hate speech.

In this case, the U.S. Supreme Court held that a city ordinance prohibiting bias-motivated disorderly conduct violated the First Amendment because it restricted only communications concerning certain disfavored topics, thus constituting content-based discrimination. The Court applied "content-neutral regulation" doctrine to hate speech in its reasoning. The Court found the ordinance on its face unconstitutional because it prohibited "otherwise permitted speech solely on the basis of the subjects the speech addresses...."⁶⁹⁾ However, a commentator pointed out that in reasoning hate speech regulation, the Court did not consider whether First Amendment values actually would be compromised by prohibiting intimidation in the form of cross burning.⁷⁰⁾

Likewise, Justice Blackmun observed that the Court's motivation was not the preservation of values underlying the First Amendment, but rather a fear of progressive notions of political correctness and cultural diversity.⁷¹⁾ The Court's opinion has chilled the passion on campus for politically correct speech codes. The Court, however, implies that regulation can be constitutional so long as it is not politically selective.⁷²⁾

R.A.V. teaches that the universities may not regulate hate speech based on hostility toward the underlying message expressed.⁷³⁾ Following R.A.V., the U.S. Court of Appeals for the Ninth Circuit affirmed that selective punishment based upon message content was unconstitutional under the First Amendment.⁷⁴⁾ The court concluded that the San Bernadino Valley College should have accomplished its goals in some fashion other than silencing speech on the basis of its viewpoint.

It is questionable whether the R.A.V. rationale is applicable to the regulation of on-line hate speech. On the one hand, universities certainly have a substantial interest in maintaining an educational environment free of discrimination and racism, and in providing gender-neutral education. On the other hand, it seems equally apparent that universities have other alternatives than imposing punishment on students based on the viewpoints they express. Rules restricting on-line hate speech may fail to withstand First Amendment scrutiny unless they are narrowly tailored.⁷⁵⁾ About this, First Amendment scholars predicted an end to any type of speech codes on campus and argued that the best way to combat hate speech on campus is to provide an open forum where all ideas may be heard and commented upon.

Whether the codes are valid in controlling speech on the Internet needs more constitutional speculations. Above all, university officials have to answer about if they must regulate on-line hate speech in spite of the more empowered users in response or avoidance. Liberal scholars claimed that Internet users can make proper responses to the sender, either by ignoring hate messages or by getting rid of them. Recently, a federal court judge commented, ¡°we will suppress the speech of others only under the same kind of rules by which we are willing to allow others to suppress our speech.¡±⁷⁶⁾ According to his rationale, First Amendment theories served us well and all efforts at speech regulation will fail. However, many other scholars claimed that hate speech could raise serious mental harm to individuals. They said that on-line hate speech codes might prevent Internet users on campus from being victimized.

Previous discussions did not answer the question whether the Internet is a guaranteed place for speech by current law. Recent incidents in California universities showed that those people who spread hate speech on the net can be punished for threats by public law rather than by speech codes. In this sense, speech codes that are intended to regulate on-line hate speech will be no more valid in protecting women and minority students from verbal attacks on campus. Instead, established public laws can be applied to curb remarks that are sexist or derogatory of a particular race on the net.

In the long run, it is not necessary for universities to regulate computer network content in order to minimize access to offensive speech. The courts should adjudicate the constitutionality of the policy in the course of resolving conflicts between free speech rights and rules protecting human dignity.⁷⁷⁾ It seems to be the government itself that should develop an anti-hate speech policy, considering the harmful nature and effect of on-line hate speech and the international trend.⁷⁷⁾ Countries other than the U.S. seemingly apply laws operating in the established media to control hate messages on the net. In Canada, hate speech is illegal. It is unlawful in both Germany and Austria to deny the Holocaust.⁷⁸⁾ United Kingdom and New Zealand also have laws restricting racist speech.⁷⁹⁾ Without a policy, hate actors will continue to justify deviant conduct in the name of free speech. Universities will have to bear a burden to resolve on-line hate speech issues in the direction that everyone should enjoy free speech, but not at the expense of others.