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Table of Contents INTERNET HATE SPEECH IN THE UNITED STATES AND CANADA: A LEGAL COMPARISON By JOSHUA AZRIEL A DISSERTATION PRESENTED TO THE GRADUATE SCHOOL OF THE UNIVERSITY OF FLORIDA IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY UNIVERSITY OF FLORIDA 2006 Copyright 2006 by Joshua Azriel ACKNOWLEDGMENTS The author wishes to acknowledge the help of his supervisory committee, William F. Chamberlin, chair, and members Justin Brown, Laurence Alexander, and Lawrence Dodd. Their patience and encouragement made this dissertation possible. The author gratefully acknowledges the support of fellow students and colleagues, including Amy Sanders, Courtney Barclay, and Abubakar Al-Hassan. They were a tremendous resource for moral support during the research and writing process. Finally, the author acknowledges the support of his family, namely his wife and parents. With their encouragement, the author had the motivation to finish this study. iii TABLE OF CONTENTS Page ACKNOWLEDGMENTS………………………………………………………………. iii ABSTRACT……………………………………………………………………………..vii CHAPTER 1 INTRODUCTION………………………………………………………...1 Purpose…………………………………………………………………….5 Background………………………………………………………………..5 Literature Review………………………………………………………...14 Research Questions………………………………………………17 First Amendment as Applied to Hate Speech.…………………...17 U.S. Supreme Court’s Decisions on Speech Restrictions…....…..23 Canadian Hate Speech Laws……………………………………..34 Internet-Based Hate Speech……..………………………….……38 Methodology……………………………………………………………..43 Conclusion……………………………………………………………….45 2 THE INTERNET AND ITS SPEECH LAWS…………………………..47 World Wide Web………………………………………………………...49 Blogs……………………………………………………………………..49 E-Mail……………………………………………………………………50 Electron Bulletin Board Service…………………………………………51 Instant Messaging………………………………………………………..53 Podcasts………………………………………………………………….54 U.S. and Canadian Regulation of Internet Speech……………………….55 Congress Tackles Threats on the Internet.……………………….60 Parliament Acts to Restrict Internet Hate Propaganda…………..70 Conclusion……………………………………………………………….72 3 UNITED STATES LEGAL APPROACH TO RESTRICTING INTERNET SPEECH……………………………………………………75 Clear and Present Danger………………………………………………...76 iv Supreme Court’s Decisions on Hate Speech…………………………….81 Chaplinsky v. New Hampshire…………………………………..82 Beauharnais v. Illinois…………………………………………..84 Ashton v. Kentucky………………………………………….…...85 Brandenburg v.Ohio……………………………………………..87 R.A.V. v. St. Paul…………………………………………………90 Virginia v. Black…………………………………………………92 Campus Speech Codes…………………………………………………...94 “Nuremburg Files” Brings Internet-Based Hate Speech to the Courts…102 Prohibition on Threats in Interstate Communications………………….108 U.S. v. Kelner…………………………………………………...109 U.S. v. DeAndino………………………………………………..111 U.S. v. Alkhabaz………………………………………………...113 U.S. v. Newell…………………………………………………...116 Congressional Attempts to Enhance the Law Against Cyberspace Threats…………………………………………………………..117 U.S. v. Lampley……………...………………………………….119 U.S. v. Popa…………………………………………………….120 Conclusion...……………………………………………………………122 4 CANADA’S LEGAL APPROACH TO RESTRICTING INTERNET SPEECH………………………………………………………………...126 Canadian System of Government………………………………………127 Parliament………………………………………………………128 Supreme Court………………………………………………….129 Federal Laws on Hate Speech…………………………………………..130 Canadian Supreme Court Cases………………………………………...134 Oakes Test……………………………………………………....135 R. v. Keegstra…………………………………………………..139 R. v. Andrews…………………………………………………...143 R. v. Taylor……………………………………………………..144 R. v. Zündel……………………………………………………..149 Canadian Human Rights Commission………………………………….154 Canadian Human Rights Tribunal……………………………………...156 Sabina Citron and Canadian Human Right Commission v. Ernst Zündel …..…………………………………………………..157 Mark Schnell v. Machiavelli and Associates and John Micka…161 Richard Warman v. Fred Kyburz……………………………….164 Conclusion……………………………………………………………....166 5 CONCLUSION…………………………………………………………170 Legislation to Ban Hate Speech………………………………………...173 U.S. and Canadian Supreme Court Rulings on Hate Speech…………...176 Lower Federal Appeals Courts Rulings………………………………...185 v Summary of the Laws…………………………………………………..189 Research Questions……………………………………………………..190 Future Research………………………………………………………...210 Conclusion……………………………………………………………...212 BIBLIOGRAPHY………………………………………………………………214 BIOGRAPHICAL SKETCH…………………………………………………...223 vi Abstract of Dissertation Presented to the Graduate School of the University of Florida in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy INTERNET HATE SPEECH IN THE UNITED STATES AND CANADA: A LEGAL COMPARISON By Joshua Azriel May 2006 Chair: William Chamberlin Major Department: Journalism and Communications In the United States and Canada there are hundreds of extremist groups who use the Internet to promote their ideologies. The Internet is a form of communication that allows individuals to view and download content from Web sites, electronic mails, chat rooms, by instant messaging, and from podcasts. Extremists are using the different communication platforms of the Internet to spread their hate messages. The United States and Canada have different legal approaches to hate speech on the Internet. In the United States, the Supreme Court has ruled that hate speech is protected by the First Amendment, but fighting words and threats to violence are not protected forms of speech. In Canada, its Supreme Court has ruled that hate propaganda is not protected speech and can be restricted in order to preserve Canadian democracy for all its citizens. This study compares the law in the United States and Canada regarding when hate speech on the Internet can be legally restricted. It reviews several U.S. and vii Canadian Supreme Court rulings pertaining to speech restrictions. It also examines how lower federal and administrative courts, in both countries, have applied the legal precedents laid down by the Supreme Courts to hate speech and threats on the Internet. This study uses the legal comparisons to show how the two nations have a different philosophical approach to when speech can be constitutionally banned. By using Canada as a comparison, this study explores a legal approach the United States can emulate if it wants to restrict hate speech on the Internet. The study concludes that how the United States and Canada restrict hate speech and threats on the Internet is rooted in the two countries’ legal and philosophical approaches to free speech. The results of this study indicate that Canada’s government will restrict Internet hate speech in order to protect victims from speech that aims to expose them to hatred and contempt in society. In the United States Internet-based hate speech aimed at an individual or group of people is legal until it threatens or intimidates them. viii CHAPTER 1 INTRODUCTION The First Amendment to the United States Constitution states that “Congress shall make no law abridging the freedom of speech, or of the press.”1 Several constitutional law scholars have investigated how far this freedom extends when it comes to political speech, commercial speech, indecency, and obscenity.2 Within the field of mass communication, First Amendment rights are often examined within the context of the mass media (i.e., laws surrounding broadcast ownership, press rights, and protecting confidential sources). First Amendment challenges now include the Internet, specifically indecency and hate speech, within this communications platform. Hate speech is a verbal assault aimed an individual or group typically based on their race, ethnicity, religion, or sexual orientation. Extremists have availed themselves of the communication opportunities available through the Internet for hate speech.3 According to the Southern Poverty Law Center, in 2004 there were 486 Web sites of hate groups in the United States.4 These hate groups use the Internet to transmit hate literature 1 U.S. CONST. amen. I. 2 See, e.g., the writings of Thomas Emerson, Alexander Meiklejohn, Vincent Blasi, and William Van Alstyne. 3 NIGEL COPSEY, EXTREMISM ON THE NET: THE EXTREME RIGHT AND THE VALUE OF THE INTERNET 218 (Rachel Gibson, Paul Nixon, and Stephen Ward ed., Routledge 2003). 4 Southern Poverty Law Center Report, “Hate Groups Up Slightly in 2004” (March 2004) available at http://www.splcenter.org/center/splcreport/article.jsp?aid=135. 1 2 by electronic mail (e-mail), through electronic bulletin boards and through Web sites.5 An April 2006 study on anti-Semitism by the Anti-Defamation League showed that several extremist groups in the United States use the Internet to spread their messages of intolerance toward minorities and to send e-mail threats to them.6 Groups such as the Klu Klux Klan and skinheads espouse hate speech in the form of white supremacist philosophy. They use the Internet to post and send messages that include denying or revising historical facts such as the Holocaust and espousing anti-immigration laws.7 These groups use the Internet’s different communication tools to spread their ideas.8 For example electronic mail (e-mail) allows extremists to instantly communicate their message either individually between people or to mass audiences who subscribe to mass e-mails.9 Others use the World Wide Web as a source for displaying their ideology in a catalog-like forum. An individual or group’s Web site’s blog can be used to communicate their thoughts in journal-like manner. Electronic discussion forums such as USENET have been a vehicle for extremists to host open conversations from any location.10 Essentially, the
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