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

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

Summary of the Laws…………………………………………………..189 Research Questions……………………………………………………..190 Future Research………………………………………………………...210 Conclusion……………………………………………………………...212

BIBLIOGRAPHY………………………………………………………………214

BIOGRAPHICAL SKETCH…………………………………………………...223

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

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 Internet offers hate groups a “place” to openly communicate

5 Annual Anti Defamation League Audit “Anti-Semitic Incidents Decline in 2005 but Levels Still Of Concern in U.S.” (April 5, 2006) available at: http://www.adl.org/PresRele/ASUS_12/audit_2005.htm.

6 Id.

7See e.g. Klu Klux Klan’s Web site available at: http://www.kkk.com/ and Keystone State Skinheads available at: http://www.ks88.com. Two examples of online groups specifically devoted to activism against illegal immigration is the California-based Save Our State organization available at: http://www.saveourstate.org/ and White Revolution available at: http://www.whiterevolution.com/.

8 Supra note 3 at 222.

9 Id.

10 Id.

their ideas.11 Individuals can also use the Internet to threaten, intimidate, or harass a victim. Often, those who threaten victims can have their identities remain anonymous by using the Internet to communicate.

Because Internet communications can help facilitate the spread of hate and intolerance, it is important to know if there can be restraints on such speech within the

First Amendment. In a court case examining a federal law designed to protect minors from online indecency, the Supreme Court stated in Reno v. American Civil Liberties

Union12 that the Internet is a “unique” and new medium for communication, and, as a

result, should enjoy maximum protection under the First Amendment. While the Court

has stated the Internet deserves this extensive First Amendment protection, hate groups

use the Internet to spread their propaganda to a mass audience.13 In the United States, the legal controversies surrounding Internet hate speech have not focused on hate groups such as white supremacists but on single issue political advocacy groups that target people with threats. There have been few court cases, but one of the most recent ones involved an anti-abortion Web site that targeted abortion providers and threatened their lives. 14 The 9th Circuit of the U.S. Courts of Appeals ruled the “Nuremburg Files” Web site was a form of hate speech because it threatened the doctors and politicians it listed.15

11 Id. at 223.

12 521 U.S. 844, 885 (1997).

13 See e.g., NIGEL COPSEY, EXTREMISM ON THE NET: THE EXTREME RIGHT AND THE VALUE OF THE INTERNET (Rachel Gibson, Paul Nixon, and Stephen Ward ed., Routledge 2003).

14 Planned Parenthood of the Columbia/Willamette, Inc. v. American Coalition of Life Activists 290 F.3d 1058 (9th Cir. en banc 2002).

15 Id.

The court ordered it removed from the Internet.16 In the United States, this court’s decision, along with the Supreme Court’s 2003 Virginia v. Black17 holding and other lower court rulings, means that speech is legal until it specifically threatens someone’s life and physical harm may be imminent.18

While the political and judicial philosophies in the United States allow for individuals and hate groups to use the Internet to spread their propaganda as long as they

do not explicitly threaten an individual, Canada has a different political and legal

approach. Its constitution contains a Charter of Rights that allows for free speech, but

also states the government has the right to step in and restrict speech when it targets a

minority group.19 Unlike American law, Canadian law is quite specific in criminalizing what it calls “hate propaganda.”20 An important difference between the two countries is

that unlike the American government, the Canadian government criminalizes using the

Internet for hate speech against a minority group.21

While the U.S. Supreme Court has issued several rulings on the constitutionality of federal laws aimed at protecting minors from online indecency and obscenity, it has

16 Id.

17 538 U.S. 343 (2003).

18 See U.S. v. Alkhabaz, 104 F.3d 1492 (6th Cir. 1997) and U.S. v. Newell, 309 F. 3d 396 (2002).

19 CAN.CONST. (Constitution Act, 1982) pt. I (Canadian Charter of Rights and Freedoms),§2.

20 Offenses Against the Person and Reputation, R.S.C., c.46,§319 (2004).

21 See ILLEGAL AND OFFENSIVE CONTENT ON THE INTERNET: THE CANADIAN STRATEGY TO PROMOTE SAFE, WISE AND RESPONSIBLE INTERNET USE published by Government of Canada, Department of Industry (April 4, 2003) and COMBATTING HATE ON THE INTERNET, Working Paper by Canadian Secretariat, World Conference Against Racism (January 31, 2001).

not yet heard a case involving hate speech on the Internet.22 The most recent Court

decision was Virginia v. Black, which specifically dealt with threats made toward an

individual and how an individual perceives those threats. In several other cases over the

past 50 years, the Court moved from outlawing speech that tends to lead to violence to

protecting most forms of hate speech except where there is the likelihood of imminent

violence against threatened victims.23

Purpose

Since the First Amendment in the United States Constitution states that Congress

shall make no law “abridging freedom of speech,” this dissertation’s purpose is to ask

how far that freedom exists in relation to online hate speech. The goal of this dissertation

is to understand how much the Constitution protects Internet-based hate speech in the

U.S. and how the American legal approach compares to its northern neighbor, Canada.

The challenge for this dissertation is to compare how two different countries that share a

long border face the same obstacle of fighting hate speech on the Internet.

Background

This section of the introduction will outline the legal jurisprudence of American

and Canadian hate speech laws. It will briefly describe the American statutes passed by

Congress aimed at protecting individuals from threats and harassment and how they

22 See 539 U.S. 194 (2003), the U.S. Supreme Court upheld the Children’s Internet Protection Act, 20 U.S.C.S. § 9134 (2004). In 521 U.S. 844 (1997) the Court struck down the Communications Decency Act (CDA) of 1996, as contained in Title V of the Telecommunications Act of 1996, 47 U.S.C. §223 (1996). In 124 S. Ct. 2783 (2004) the Court remanded Child Online Protection Act of 1998 (COPA), 47 U.S.C. §231 back to the lower federal District Court for it to consider if the law is valid considering advances in filtering technology.

23 See e.g. Virginia v. Black, 123 S. Ct. 1536 (2003), R.A.V. v City of St. Paul, Minnesota, 505 U.S. 377 (1992), Brandenburg v. Ohio, 395 U.S. 444 (1969), Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), Beauharnais v. Illinois, 343 U.S. 250 (1952), and Ashton v. Kentucky, 384 U.S. 196 (1966).

apply to the Internet. It will then outline the U.S. Supreme Court’s jurisprudence since

the mid-Twentieth Century in crafting the First Amendment boundaries of hate speech.

This section will briefly examine Canadian federal statutes restricting hate propaganda

against minority groups and then provide an outline of how its Supreme Court has

interpreted the laws passed by the Parliament.

Free speech in the United States is not an absolute. The Court’s decisions have

said that words that will lead to a breach of the peace or to a violent encounter are not

protected by the First Amendment. This unprotected speech is usually aimed at

individuals and not at groups. The research will analyze how the Court’s decisions might

apply to hate speech on the Internet.

Within the American perspective, this research will examine speech related cases

where the Supreme Court decided the limits to free speech. Several of these cases

include speech directed at individuals and minority groups. Beginning with the Court’s

1942 decision in Chaplinsky v. New Hampshire,24 it has a developing jurisprudence on the constitutionality of fighting words, threats against individuals, and hate aimed at minority groups. The Court’s 2003 Virginia v. Black decision was its most recent decision on threats. In addition to Chaplinsky, the most important cases for this research are the 1951 Beauharnais v. Illinois, 1966 Ashton v. Kentucky, 1969 Brandenburg v.

Ohio, 1992 R.A.V v. City of St.Paul, and 2003 Virginia v. Black cases.25 The Court reviewed local and state statutes that limited speech and with its decisions determined

24 Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). The Court determined that fighting words, terms that “by their utterances inflict injury or tend to incite to an immediate breach of the peace” lack any First Amendment protection.

25 Supra note 22.

under what context hateful speech and threats are illegal and not protected by the First

Amendment.

In one of its seminal hate speech decisions, in Brandenburg v. Ohio, the Court in

1969 laid out a four-part test to determine when speech loses its First Amendment

protection.26 In the first part of the test, advocacy, speech that supports a political position, is protected. The second part of the test asks if speech directly incited to an illegal violent action. If it did not incite to violence, then the speech is still protected. In the third part of the test, if the defendant knew his words directly triggered illegal action, then his speech is not protected. This is at the heart of Brandenburg. It means only a

very short time may pass between the advocacy and the resulting violence. There must

be a likelihood of illegal action. Finally, when the illegal action takes place in the form

of violence, the speech that produced that action loses any First Amendment protection.

With the Brandenburg test, simply advocating violence is protected, but once words lead

to imminent violence, they lose their First Amendment protection.27

In another hate speech case, in R.A.V. v. St. Paul, the Court in 1992 stated that the

First Amendment did not permit the government to impose content-based restrictions on

speakers who express views on disfavored subjects.28 A statute cannot impose viewpoint

discrimination by protecting one group of individuals from hate speech without

protecting others.29 The Court ruled that a St. Paul, Minnesota, ordinance’s language

criminalizing offensive speech about race, color, creed, religion, or gender was

26 Brandenburg, 395 U.S. 444 (1969) at 447.

27 Id.

28 R.A.V., 505 U.S. 377 (1992) at 381.

29 Id.

unconstitutional because offensive symbols or words about another person’s occupation,

political affiliation, or sexual orientation would be legal.

In the most recent U.S. Supreme Court case, Virginia v. Black, in 2003, the Court

ruled that prohibitions against threats are legal in order to protect individuals from a fear

of violence and disruption to their lives that come from the threat.30 The Court reviewed

a Virginia statute outlawing cross burning with the intention of intimidating and

threatening the victim. While the Court affirmed the constitutionality of the law, it stated

that juries should not assume that the burning of a cross is always meant to intimidate. If

a cross is burnt simply as a political statement without the intent to intimidate, the Court

stated the political message in the act is protected speech.

Only one of the Court’s decisions has been applied to a case involving Internet

hate speech. In Planned Parenthood v. ACLA,31 the U.S. Court of Appeals for the Ninth

Circuit used the four-part Brandenburg test to order an anti-abortion Web site shutdown because it threatened doctors whose names and contact information were listed. The court stated this list amounted to a threat against a group of individuals who were abortion providers.32

In addition to the Supreme Court’s Brandenburg test, there are two federal laws

that prohibit threats conveyed in interstate communication. Entitled Crimes, Extortions,

and Threats, 18 U.S.C. §875 (2003), punishes any person who threatens to kidnap or

30 Virginia, 123 S. Ct. 1536 (2003) at 1547.

31 Planned Parenthood of the Columbia/Willamette, Inc. v. American Coalition of Life Activists 290 F.3d 1058 (9th Cir. en banc 2002).

32 Id. at 1063.

9 injure another using any interstate communications system.33 Interstate communications has been interpreted by the courts to include Internet-based electronic mail (e-mail) and message boards.34 In order to prosecute the federal offense of transmitting threatening communications, the government does not need to prove that the defendant intended his communication be received as a “threat.”35 This dissertation will show that this law has been used to prosecute individuals who use e-mail to threaten a victim.

A second federal law related to “threats” in the United States, the 1996

Telecommunications Act, prohibits using any “telecommunications device” to repeatedly

“threaten or harass” an individual.36 However, the law exempts Internet Service

Providers (ISPs) from being liable when their customers post hateful or threatening

messages.37

33 18 U.S.C. §875 (2005) Title 18 Crimes, Extortions, and Threats. It states, “Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.”

34 See generally U.S. v. Newell, 309 F.3d 396 (6th Cir. 2002) and Rollins v. Cardinal Stritch University, 626 N.W. 2d 464 (Minn. Ct. App. 2001).

35 See U.S. v. Whiffen 121 F. 3d 18 (1st Cir. 1997). In this case the appeals court upheld the lower court’s conviction that the defendant’s statements were true threats and a reasonable jury would have found the defendant’s statements to be taken as threats by the intended victim. The court also ruled that 875 (c) is a general intent to crime. See also 31 A Am. Jur 2d Extortion, Blackmail, and Threats §21 (1994).

36 47 U.S.C. § 223 (c)(d)(e) (2005). Title 47 Telegraphs, Telephones, and Radiotelegraphs – Chapter 5 Wire or Radio Communication Common Carriers, Common Carrier Regulation. A telecommunications device is the hardware used for communication, i.e. telephone, modem, cable etc. but excludes the use of an Interactive computer service. The term "interactive computer service" means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions. See 47 USC § 230(f)(2)(2005).

37 47 U.S.C. §230(c)(2)(A) (2005). Title 47 Telegraphs, Telephones, and Radiotelegraphs – Chapter 5 Wire or Radio Communication Common Carriers, Common Carrier Regulation. The law states that “No provider or user of an interactive computer service shall be held liable on account of-- (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected;….”

The Canadian portion of the dissertation will examine that country’s hate speech

laws. Unlike the American approach of criminalizing threats against an individual,

Canadian law has a broad directive in limiting hate speech against groups of individuals.

Similar to the American approach where the Court has been the final arbiter of defining

speech within the context of the First Amendment, in Canada the Canadian Supreme

Court has had the final say in determining whether federal laws restricting speech are

legal under the Canadian Constitution.

Similar to the Bill of Rights’ First Amendment in the U.S. Constitution, the

Canadian Constitution contains the Charter of Rights and Freedoms. Section One

guarantees freedom of religion, press, expression, thought, and belief, “subject only to

such reasonable limits prescribed by laws as can be demonstrably justified in a free and

democratic society”38 (emphasis mine). Free speech in Canada, just as in the United

States, is not an absolute. In the United States, the courts have proscribed the limits of

speech not addressed in the Constitution’s First Amendment, but the Canadian

Constitution’s Charter of Rights states that a limit can be placed on speech.

In addition to the Charter of Rights, the Canadian Criminal Code specifically

limits hate propaganda. Part VIII of the Criminal Code makes it a crime to incite “hatred

against any identifiable group where such incitement is likely to lead to a breach of the

peace.”39 The Criminal Code also outlaws advocating or promoting genocide against any

“identifiable group” distinguished by color, race, religion, or ethnic origin.40 In addition

38 CAN.CONST. (Constitution Act, 1982) pt. I (Canadian Charter of Rights and Freedoms),§2.

39 Offenses Against the Person and Reputation, R.S.C. 1985, ch. C-46,§319 (2004).

40 Offenses Against the Person and Reputation, R.S.C. 1985, ch. C-46,§318 (2004).

to the Canadian Criminal Code, another law, Section 13 of the Canadian Human Rights

Act, forbids any person or a group of individuals from using a telecommunications device

related to the Internet with the intent of exposing a person or groups of people to “hatred

or contempt.”41

Furthermore, the country has a Human Rights Tribunal that hears cases regarding

discrimination referred to it by the Canadian Human Rights Commission.42 The Human

Rights Commission is the federal agency that enforces the Human Rights Act. Any allegations of human rights violations that the Commission cannot settle are forwarded to the Tribunal for a decision. With regard to an accusation of Internet-based hate propaganda, the Tribunal has the authority to order discriminating Web sites off an

Internet Service Provider.43 The closest comparison with the United States is the

Department of Justice’s Civil Rights Bureau that has prosecuted cases since the

September 11th attacks related to the use of the Internet and e-mail by individuals who

threatened Middle Eastern communities.44

In the late 1980s and early 1990s the Canadian Supreme Court examined five

cases – R. v. Oakes, R. v. Keegstra, R. v. Andrews, R. v. Zündel and Canada v. Taylor – in

which it established the limits of restricting the Charter’s Freedom of speech clause.45 As

41 Canadian Human Rights Act, R.S.C. 1985, ch. H-6, §13 (2004).

42 Canadian Human Rights Tribunal, jurisdiction policy available at http://www.chrt- tcdp.gc.ca/about/jurisdiction_e.asp.

43 Canadian Human Rights Commission mandate available at http://www.chrc-ccdp.ca/about/mandate- en.asp.

44 U.S. Department of Justice Civil Rights Division Initiative to Combat Post-9/11 Discriminatory Backlash available at http://www.usdoj.gov/crt/crt-home.html.

45 R. v. Oakes [1986] 1 S.C.R. 103, R. v. Keegstra [1990] 3 S.C.R. 697, R. v. Andrews [1990] 3 S.C.R.870, R. v. Zundel [1992] 2 S.C.R. 731, and Canada v. Taylor [1990] 3 S.C.R. 892.

already noted, Section One of the Charter allows a freedom to be restricted if it can be

justified in a democratic society. In these five cases, the Court established the

justification. In R. v. Oakes, the defendant was convicted of drug trafficking. He

appealed, stating the Narcotic Control Act infringed his Section One Charter Rights.46

While this case is not speech related, the court established a two-part standard – the

Oakes Test – for judging when infringements on Section One of the Charter of Rights are valid. The first part of the test is a normative decision by a judge to determine: 1) if the objective of the law must relate to pressing societal concerns in a democracy and 2) if the objective is substantial enough to override a Charter right.47 In the second part of the test, the judge must decide that for the Section One Charter infringement to be legal, there must be as minimal a restriction on Charter rights as possible.48 Essentially, any law limiting a Charter freedom must be narrowly tailored, and the judge has to balance the interests of society and those of individuals and groups.

In R. v. Keegstra, an Alberta high school teacher, James Keegstra, was convicted of promoting hatred against an identifiable group of people by making anti-Semitic statements to his students.49 The Court upheld his conviction under Section 319(2) of the

Criminal Code, making it a crime to promote the persecution or genocide of a group of

people. The Court said Keegstra’s statements exceeded his freedom of speech

protections guaranteed by the Charter because his statements could lead to harm against a

46 [1986] 1 S.C.R. 103.

47 Id. at 106.

48 Id. at 107.

49 R. v. Keegstra [1990] 3 S.C.R. 697.

targeted group.50 The Court ruled that Parliament's objective of preventing the harm caused by hate propaganda was of sufficient importance to warrant overriding a constitutional freedom.51

Similar to the Keestra case, in R. v. Andrews the Court upheld the conviction of

two members of the Nationalist Party of Canada that published the National Reporter

magazine because the publication had promoted the idea of white supremacy. 52 The

Court, applying the same logic as Keegstra, stated that the material could place a

minority group at risk for violence.

In a case involving the publication of false statements, the Canadian Supreme

Court – in R. v. Zündel – upheld the right of an individual to spread false statements when

they are controversial.53 The Court struck down Section 181 of the Criminal Code that makes it a crime to knowingly publish false information, saying that the Charter protects false speech.54 The defendant, Ernst Zündel, had disseminated a pamphlet stating the

Holocaust never happened although it did occur. While Zündel was found not guilty of

publishing false statements, in 2002 the Canadian Human Rights Tribunal ordered his

anti-Semitic Web site shut down because it violated the country’s Human Rights Act and

could endanger the safety of Canada’s Jewish population.55

50 Id. at 701.

51 Id. at 700.

52 R v. Andrews [1990] 3 S.C.R. 870.

53 [1992] 2 S.C.R. 731.

54 Id. at 735.

55 Press Release, Catherine Barratt, Canadian Human Rights Commission, Ernst Zündel's Internet Hate Site Unlawful: Tribunal (Jan. 18, 2002) available at: http://www.chrc-ccdp.ca/media_room/news_releases- en.asp?id=232.

In 1990, in Canada v. Taylor,56 the Court upheld the 1979 action by the Canadian

Human Rights Commission when it ordered the disconnection of an automated telephone answering service because it contained anti-Semitic remarks. A white supremacist group, the Western Guard Party, encouraged people to call a Toronto-based phone number to hear the anti-Semitic messages. The organization was fined $5,000 (Canadian) when it initially refused to cease and desist. The court, citing Canada’s historic and political commitment to values of equality and multiculturalism in its decision, stated that the

Commission’s actions were legal under Section 13 of the Canadian Human Rights Act. 57

Since 1990, Section 13 – which forbids using a telecommunications device to expose a person or group to hatred or contempt – has been applied to Internet communications.58

Literature Review

This literature review section will provide a detailed analysis of the scholarly research on hate speech in the United States and Canada and how it applies to the

Internet. It will explain how this dissertation’s Research Questions will advance the scholarship on Internet hate speech. The literature review will show what several

American legal scholars have written about the First Amendment value of hate speech and how it can be applied to online communications. It will also examine how legal scholars have analyzed several of the Court’s prominent speech cases. Many of the

American scholars have examined the Court’s decisions in Chaplinsky v. New

Hampshire, Beauharnais v. Illinois, Ashton, v. Kentucky, Brandenburg v. Ohio, R.A.V. v.

56 [1990] 3 S.C.R.

57 Id. at 895.

58 Canadian Human Rights Act, R.S.C. 1985, ch. H-6, §13 (2004).

St. Paul, and Virginia v. Black. They analyzed the Court’s decisions in these cases within

a First Amendment framework. This section also will show how Canadian legal scholars

examine hate speech, and what they think about the federal laws designed to limit hate

speech and protect minorities. Several Canadian scholars have critiqued the federal

legislation drafted by the Parliament and court cases that tested the constitutionality of

the laws. Finally, this literature review will show how scholars in both countries try to

understand how the hate speech laws apply to the Internet.

None of the scholars, except one, conducted a study in which the U.S. and

Canadian restrictions on online hate speech and threats were directly compared.

University of Ottawa Law Professor Jane Bailey compared American and Canadian

legislative laws to see which country has more stringent laws to restrict Internet hate

speech. In 2004 she explained that Internet Service Providers (ISPs) may have to

regulate themselves in both the United States and Canada if they are to stem hate

speech.59 These companies are free from any American First Amendment and Canadian

Charter of Rights constraints because they are free to regulate their own businesses.60

She stated that ISPs can provide filtering tools to users who do not want to be exposed to online hate.61 Bailey also explained that geo-locational technology that tracks where

Internet users are located can assist ISPs. This technology denies access to users in countries where they may seek out illegal content such as hate propaganda.62

59 Jane Bailey, Private Regulation and Public Policy: Toward Effective Restriction of Internet Hate Propaganda, 49 MCGILL L.J. 59, 64 (2004).

60 Id.

61 Id. at 81.

62 Id. at 83.

While Bailey has provided a comparison analysis, she did not review all the relevant Canadian and American court cases and statutes. In the Canadian analysis she provided the reader with a review of the Canadian statutes prohibiting public hate propaganda. She also explored the Canadian Supreme Court’s decisions in R. v. Keegstra and R. v. Taylor in which it upheld the laws on hate propaganda. Bailey did not provide an analysis of two other Canadian Supreme Cases, R. v. Andrews and R. v Zündel.

In her cross-country comparison, Bailey briefly reviewed the U.S. Supreme

Court’s decisions in Chaplinsky, Beauharnais, and R.A.V. but she did not discuss Ashton v. Kentucky and Virginia v. Black. In her article Bailey did not provide a discussion of the 1996 Telecommunications Act and its prohibition of using the Internet for threatening, harassing, or intimidating an individual.

Bailey’s 2004 article is the only one that attempts to directly compare American and Canadian laws on Internet-based hate speech. As will be discussed, other scholars approach the topic in a more piecemeal approach. They focus either exclusively on

American or Canadian laws. They also mainly discuss court cases and do not cover the laws passed by either country’s federal legislative bodies. In an attempt to provide a comprehensive analysis and comparison of the American and Canadian legal approach to online hate speech and threats, this dissertation will show how the laws in both countries incorporate both court decisions and statutes.

Research Questions

After reviewing the literature, this author found that three questions related to the regulation of hate speech over the Internet in both Canada and the United States have not

been answered. By using legal research methodology, this dissertation will answer the

following:

• What have the federal legal institutions of the United States and Canada told us about the law governing hate speech disseminated on the Internet?

• What have the federal legal institutions told us that will help explain the differences on Internet hate speech between the two countries?

• What are the Things We Can Learn by Examining How Two Different Countries Legally Approach Internet Hate Speech?

In order to answer these questions, this dissertation will examine role of Congress, the

American courts, the Canadian Parliament, Canadian courts, and Canadian Human Rights

Tribunal in crafting and interpreting the laws.

The First Amendment as Applied Towards Hate Speech

With a general constitutional analysis of hate speech, in 1986 Lee Bollinger, the

President of Columbia University and the former Dean of the University of Michigan

Law School, espoused “tolerance theory.”63 Bollinger stated that a central function of

free speech is to provide a social context in which we collectively speak to the

“intellectual” character of society.64 This intellectual character includes exercising a self-

restraint toward others’ offensive behavior, i.e., the perpetrators of hate speech.65

Bollinger stated extremism must be understood as being integral to the central functioning principles of free speech.66

63 LEE BOLLINGER, THE TOLERANT SOCIETY 120 (1986).

64 Id.

65 Id.

66 Id. at 133.

He stated that one of the social functions of free speech is to focus on the

ideology, the meaning behind the offensive speech rather than simply protecting the

activity: “free speech is not concerned exclusively with the preservation of a freedom to

do whatever we wish, or with the advancement of truth or democracy as those terms are

generally used, but with the development of a capacity of mind.”67 Bollinger encouraged

people to look at the perceived prejudices of the speaker. One of his “principles of free

speech” is exercising extraordinary self-restraint toward injurious behavior.68 The victim of hate speech should exercise self-control so that a social interaction with the perpetrator

of hate does not become violent.

Columbia University Law Professor Kent Greenawalt agreed with Bollinger’s

approach to tolerance theory. In 1995 he contended that a general criminal prohibition of

abusive words that are designed to hurt and humiliate should be unconstitutional.69 But, he disagreed with Bollinger’s notion of showing tolerance toward unwanted spoken hate because of society’s “intellectual character.” Greenawalt asserted that free speech should become illegal when an individual has initiated contacts with a victim simply to harass that individual. He equated this behavior with making harassing telephone calls, an action Congress and the courts have determined illegal.70 If the United States were to

have laws against racial and ethnic slurs, then Greenawalt believed these laws could

focus on the face-to-face verbal encounters because the targeted speech is aimed at a

67 Id. at 142.

68 Id. at 143.

69 KENT GREENAWALT, FIGHTING WORDS: INDIVIDUALS, COMMUNITIES, AND LIBERTIES OF SPEECH 53 (1995).

70 Id. at 54.

specific audience. He asserted that the aim in these situations is to try to incite a violent

confrontation between speaker and victim.71

Georgetown University Law Professor Mari Matsuda took Greenawalt’s argument

one step further. In 1993 she rejected any absolutist First Amendment positions for

protecting hate speech.72 She commented on the outcome of the 1977 Illinois court case,

Village of Skokie v. National Socialist Party73 where the Illinois Supreme Court ruled that a neo-Nazi organization could march in a parade. Based on the outcome of the Skokie case, Matsuda supported the possibility of a legal response to racist speech in order to show that victims of racism are valued members of society: “Tolerance of hate speech is not tolerance borne by the community at large. Rather it is a psychic tax imposed on those least able to pay.” 74 She supported a three-part test for determining the basis to prosecute hate speech.75 The first part of the test is determining if the speech

encompasses a message of racial inferiority. Second, does the speech have a message

directed against a historically oppressed group of people? Finally, the last part of the test

is whether the message is persecutory, hateful, and degrading. If all three parts of the test

are answered in the affirmative, prosecution could proceed. Matsuda cautioned that she

71 Id. at 63.

72 Mari Matsuda, Public Response to Racist Speech: Considering the Victim’s Story, in WORDS THAT WOUND: CRITICAL RACE THEORY, ASSAULTIVE SPEECH, AND THE FIRST AMENDMENT 18 (1993).

73 373 N.E.2d 21(1978). The Illinois Supreme Court affirmed the right of the National Socialist Party of American to display the Nazi flag in a parade in Skokie, Illinois, a town with a large Jewish population.

74 Supra note 71 at 18.

75 Id. at 36.

would not want to see the “floodgates” of litigation based on frivolous accusations in order to impose censorship over speakers.76

Matsuda argued that bomb threats, incitement to riot, and fighting words are already unprotected speech. Racist speech should be the next category without First

Amendment protection because its victims usually experience physical and emotional distress when they are the direct targets.77 Victims are restricted in their personal freedoms. In order to avoid further hate messages, they often quit their jobs, curtail their own speech (personal chilling effect), and avoid certain locations.78 Matsuda argued that

racism is an ideology that tries to impose racial supremacy and keep selected victimized

groups in subordinated positions.79 She stated that victims should be able to find restitution for this numbing fear that is imposed on their lives.

Richard Delgado, a University of Pittsburgh Law Professor, agreed with Matsuda that certain forms of racist speech should be unconstitutional.80 In a 1993 analysis of the

Chaplinsky case, Delgado pointed that the Court stated that words inflicting injury or

tending to incite a breach of the peace are illegal. Using this formulation, he stated that

racial insults fit this category of unprotected speech because they often inflict a

psychological injury by their “very utterance.”81

76 Id.

77 Id. at 24.

78 Id. at 25.

79 Id. at 23.

80 Richard Delgado, Words that Wound: A Tort Action, in WORDS THAT WOUND: CRITICAL RACE THEORY, ASSAULTIVE SPEECH, AND THE FIRST AMENDMENT 107 (1993).

81 Id.

Delgado then examined another Court ruling, Cohen v. California.82 In that case, the Court in 1971 ruled the government may restrict speech directed at a captive or unwilling audience. Cohen wore a jacket that that used the “F” word to indicate his opposition to the Vietnam War draft. Delgado classified racial insults as speech geared toward victims who are a “captive audience.”83 Unlike the speech used in the Cohen case

concerning the Vietnam draft, Delgado advocated that racial insults are not political

speech because the perpetrator is not trying to discover the truth or advocate social

action.84 Instead, racial insults try to victimize their unwilling audience.

Delgado stated that the Court has upheld several exceptions to free speech including libel, defamation, threats, publishing state secrets, and copyright.85 He posits that the state intervenes on behalf of actors who are empowered such as the military, government, and businesses.86 The powerful interests have been able to suppress speech at different times. Delgado says it is the powerless such as minorities who have not been able to get hurtful, racist speech suppressed: “Racism is a classic case of democratic failure; to insist that minorities be at the mercy of private remonstrance against their tormentors.”87

82 403 U.S. 15 (1971).

83 Id.

84 Id.

85 Richard Delgado, Are Hate Speech Rules Constitutional Heresy? A Reply to Steven Gey, 146 U. PA. L. REV. 865, 870 (1998).

86 Id. at 871.

87 Id.

In contrast to the viewpoints of Delgado, Matsuda, and Greenawalt, Franklyn

Haiman stated that banning hate speech could lead to several consequences.88 In 1993

Haiman asserted that outlawing hate speech does not make the attitudes that lead to that expression go away.89 If hate speech is prohibited, those holding intolerant attitudes will move underground and possibly “fester” their hatred in violent ways.90 Generally,

Haiman worried that any legal limits on hate speech would become counterproductive.91

He wrote that an unseen enemy is more dangerous than one that is visible. He does not believe that all racists would go underground, but instead would become more sophisticated in how they phrase their racism. Prohibition would also make censored materials similar to “forbidden fruit” by making them more attractive to fringe elements.92 Purveyors of prohibited speech gain notoriety and possibly even sympathy

because their works are banned.

Elizabeth Phillips Marsh, a professor at Quinnipiac College School of Law in

Connecticut, warned that attempts to ban hate language must not “chill” legitimate

speech.93 In 2000 she argued that hate speech is protected at the cost of a victim’s

dignity, equality, security, and freedom from emotional distress.94 Marsh interpreted the

Brandenburg test as requiring a link between advocacy and action. If the link is

88 FRANKLYN HAIMAN, SPEECH ACTS AND THE FIRST AMENDMENT, 32 (1993).

89 Id.

90 Id. at 33.

91 Id. at 34.

92 Id.

93 Elizabeth Phillips Marsh, Purveyors of Hate on the Internet: Are We Ready for Hate Spam?, 17 GA.ST. U. L. REV. 379, 400 (2000).

94 Id. at 401.

“broken,” a speaker will not be held accountable for an illegal, violent action.95 With

Internet-based hate speech, Marsh stated the courts should use evidentiary factors to distinguish between mere advocacy and incitement. These factors, she said, should include the social context of the speech, the predictability of a serious chance of unlawful activity, whether any violence occurred, and the extent of the speaker’s knowledge of the likelihood of violence.96

U.S. Supreme Court’s Decisions on Speech Restrictions

In using the Index to Legal Periodicals to search for commentary on the Court’s

1942 Chaplinsky v. New Hampshire ruling, no legal and academic articles were found

from the 1940s and 1950s. There were articles about Chaplinsky written in the 1970s

about the status of the fighting words doctrine in that later era. They will be discussed

later in this section. One analysis written in 1974 by St. John’s University Law Professor

Thomas Shea was a historic examination of Chaplinsky as it applied to the 1950s.97

According to Shea, by the 1950s the Court’s standards on speech included protecting opinions that were hateful and unpopular.98 These unpopular beliefs were protected unless they presented a clear and present danger of illegal action.99 Fighting words could

be punished in face-to-face communication that would likely cause a violent reaction by

95 Id.

96 Id. at 402.

97 Thomas F. Shea, Don’t Bother to Smile When You Call Me That – Fighting Words and the First Amendment, 63 KY. L. J. 1 (1974).

98 Id. at 11.

99 Id.

one of the speakers.100 Shea stated that as a result of the Chaplinsky decision, in the

1950s fighting words were not considered a form of communication but “instruments of

assault.”101

Despite the lack of articles written in the 1940s and 1950s about the Chaplinksy decision, there were a few articles written on the Court’s 1952 Beauharnais v. Illinois decision. In 1953 Thomas P. Lewis, the former Dean and Professor of the University of

Kentucky College of Law wrote that the Court’s decision in Beauharnais gave

“legitimacy” to racist speech.102 At the time the Court rendered its decision, it decided the case based on group libel, or what we refer to today as hate speech. The Illinois statute prohibited selling, manufacturing, publishing, or advertising any writings that criticized anyone based on race, creed, color, or religion. Lewis states that the Court’s majority was worried that group libel based on race and ethnicity could lead to violence and disorder.103 Yet Lewis pointed out that nowhere in the Court’s opinion was there a reference directly linking group libel to violence.104

Lewis believed that the weakness of the Court’s decision was that it did not apply

the “clear and present danger” test to the writings at stake in Beauharnais. Those

writings were lithographs that criticized both racial integration in Chicago and African

Americans. In the 1950s the Court generally used the clear and present danger test to

100 Id.

101 Id. at 22.

102 Thomas P. Lewis, Freedom of Speech – Group Libel – Beauharnais v. People of State of Illinois, 41 KY. L. J. 436 (1953).

103 Id. at 441.

104 Id.

determine when speech lost its First Amendment protection.105 Essentially, the Court had ruled that speech is not protected when it could lead to a breach of peace in an environment of substantive evils, a clear and present danger. In Beauharnais, the Court upheld the Illinois statute because group libel seeks to insult a group of people and obtain a reaction from victims.106 Lewis said the Court did not draw a line between insulting utterances and comments made to purposely deride a group that would lead to a breach of peace.107

By upholding the Illinois law, Lewis said the Court would allow truth as a defense

in any legal conflict about racist writings. Any racist could show “facts” against a

religion or race.108 The danger is that this could lend credibility to ideologies of intolerance. Instead, Lewis supported a marketplace of ideas approach where racist views are not placed on trial for being criminal but instead compete against opposing ideas in an open arena.109

The Court’s 1966 ruling in Ashton v. Kentucky110 reversed its position upholding

statutes that equated libel with public disturbances. Because of the Court’s Beauharnais

ruling, state laws that implied persons might turn violent from libelous injury were

constitutional. In 1966 attorney William J. Sheppard stated that the Court’s Ashton

105 See Dennis v. U.S., 341 U.S. 494 (1951) and Yates v. U.S., 354 U.S. 298 (1957).

106 Supra note 100 at 443.

107 Id. at 444.

108 Id. at 449.

109 Id.

110 384 U.S. 195 (1966).

decision ended that assumption.111 Sheppard noted that most states had laws that prosecuted libel and included a breach of peace element to them.112 In Ashton, the

Kentucky law did not define elements of a libelous injury that could lead to a violent encounter. Sheppard said that when the Court overturned the Kentucky libel law it rendered its Beauharnais ruling inoperable since the Illinois statute linked group libel to

disruption of the peace.113 According to Sheppard, by 1966 there was little evidence that an individual would use violence and force because they were insulted by a libelous comment.114 Civil remedies were used as a mechanism to provide justice for libel victims.

Three years after the Ashton decision, the Court rendered its 1969 Brandenburg decision on incitement to violence. Unlike the Chaplinsky, Beauharnais and Ashton rulings, the Brandenburg case yielded several articles for this literature review. Attorney

Robert Plotkin wrote in 1970 that the Court’s Brandenburg decision was a

“crystallization” of the clear and present danger approach to limiting speech.115 An

important part of the Brandenburg case was the right of the Klu Klux Klan to use strong

language condemning the federal government. Plotkin said the Court’s decision in

protecting speech advocacy that does not lead to imminent violence meant that mere

111 William J. Sheppard, Criminal Law: Vagueness Versus Common Law Criminal Libel, 19 U. FLA. L. REV. 307 (1966).

112 Id. at 307.

113 Id.

114 Id. at 309.

115 Robert Plotkin, Constitutional Law – Freedom of Speech – Ohio Criminal Syndicalism Act, Which Punishes Mere Advocacy of Lawless Action Rather than Incitement to Imminent Lawless Action is Unconstitutional, 39 U. CIN. L. REV. 210 (1970).

advocacy is harmless and essential to the nation’s democratic process.116 When advocacy does lead to imminent lawless action, it violates the First Amendment. Imminent lawlessness became the “clear and present danger” test for when speech is no longer protected. Plotkin noted that government has the power to determine when lawless action is “imminent.”117

Disagreeing with Plotkin’s view, former University of Oregon Professor of Law

and former Oregon Supreme Court Justice Hans Linde wrote in 1970 that the Court’s

Brandenburg decision reversed its clear and present danger test.118 Linde said that by outlawing speech that directly leads to imminent violence, the Court reversed itself on earlier decisions that criminalized speech for advocating the overthrow of the U.S. government at an unspecified time.119 While not giving any concrete examples, Linde said that the clear and present danger approach would have been applicable in the late

1960s instead of the 1950s. The Communist rhetoric to overthrow the government in the

1950s never included any calls for specific violent actions.120 He said the Court took a

“step back” in its speech test by prohibiting speech that immediately incited to violence in an era (1960s) when Linde believed the rhetoric was more dangerous than it was in the

1950s.121

116 Id. at 215.

117 Id.

118 Hans A. Linde, “Clear and Present Danger” Reexamined: Dissonance in the Brandenburg Concerto, 22 STAN. L. REV. 1163 (1970).

119 Id. at 1166.

120 Id. at 1168.

121 Id.

In 1975 historian and attorney Staughton Lynd posited that the Brandenburg

decision was a combination of the clear and present danger and incitement tests.122 He said that under the Court’s new test, abstract advocacy is legal but incitement of lawless action (present or future) is not.123 The new test draws a line at imminence. When violence is about to take place as a result of speech, then the government has a valid interest in protecting itself and society.124 Lynd stated that the imminence factor does not sacrifice the individual’s fundamental right to free speech.125

Within the context of the Brandenburg ruling there were a few articles written in

the early 1970s that re-examined the 1942 Chaplinsky ruling for that later time period. In

1972 attorney Joseph E. Wall wrote that in Chaplinsky the Court suggested three possible

reasons for ruling that fighting words are outside the protection of the First

Amendment.126 First, they inflict injury; second, they create a breach of peace; and third,

they are not an essential part of the exposition of ideas.127 Wall said that suppressing speech because it may tend to create a disturbance “opens a door” to censoring unpopular views by those who disagree with the speaker.128 In 1972, Wall posited that Chaplinsky’s use of the term, “Fascist” was a fighting word just as in the 1950s and 1960s calling

122 Staughton Lynd, Brandenburg v. Ohio: A Speech Test for All Seasons?, 43 U. CHI. L. REV. 151 (1975).

123 Id. at 159.

124 Id. at 190.

125 Id. at 191.

126 Joseph E. Wall, Constitutional Law – Fighting Words or Free Speech?, 50 N.C. L. REV. 382 (1972).

127 Id. at 389.

128 Id.

someone a “Communist” might also be a fighting word.129 Without providing examples, he wondered what would constitute a fighting word in the 1970s. Wall believed that in the 1970s, the fighting words doctrine applied when a victim of fighting words physically retaliated against the individual who initially used them.130

In keeping with how the Chaplinsky fighting words doctrine applied in the 1970s,

University of Notre Dame Government and International Studies Professor Donald

Downs wrote in 1985 that the fighting words approach to speech was content neutral.131

After the Court’s rulings in Cohen v. California and Brandenburg v. Ohio, fighting words doctrine was altered in three ways. First, it limited the circumstances under which a speech act could be designated fighting words to “captive” situations where the target of the speech could not escape.132 Second, it ignored Chaplinsky’s notion of harm that may

come from assaultive speech.133 Third, the Court in Brandenburg and Cohen articulated

a moral skepticism to the value of fighting words.134 Downs wrote that all political ideas

no matter how offensive or evil enjoy full speech protection under the Constitution unless

they illicit violence.

With the Court’s R.A.V. v. St. Paul ruling in 1992 and its Virginia v. Black decision in 2003 several scholars have tried to analyze the Court’s recent approach to

hate speech, incitement, and threats by comparing R.A.V. and Virginia v. Black to its

129 Id. at 390.

130 Id.

131 Donald A. Downs, Skokie Revisited: Hate Group Speech and the First Amendment, 60 NOTRE DAME L. REV. 629 (1985).

132 Id. at 635.

133 Id.

134 Id.

older cases such as Chaplinsky. With Chaplinsky as the first major fighting words speech

case before the Court, Notre Dame Law Professor, G. Robert Blakey, and attorney, Brian

J. Murray, stated in 2002 that the Court, in Chaplinsky, acknowledged the existence of

certain, well defined, and narrowly limited classes of speech where prohibiting them

would not violate the First Amendment.135 In their article the authors provided an

analysis of Chaplinsky and R.A.V. v. St. Paul. The authors posited that the Court has

curtailed Chaplinsky’s scope of fighting words because it will not limit content, specific

fighting words.136

In R.A.V., Blakey and Murray stated, the Court held that certain excepted

categories are protected against viewpoint discrimination.137 The government cannot regulate speech based on its content.138 In their view the Court has allowed “true threats”

to be proscribed under the First Amendment, but this is a narrow category of limiting

speech. “True threats” must be distinguished from “political hyperbole,” controversial

debate about ideas.139 When protected speech is mixed with unprotected speech, Blakey

and Murray stated that individual liability must be based on individual conduct.140

In 2004 Melanie Bradford continued Blakey’s and Murray’s line of reasoning by

stating that Chaplinsky, Brandenburg, and R.A.V. established a framework outlining the

135 G. Robert Blakey & Brian J. Murray, Threats, Free Speech, and the Jurisprudence of the Federal Criminal Law, 2002 B.Y.U. L.REV. 829, 918 (2002).

136 Id. at 920.

137 Id. at 919.

138 Id. at 921.

139 Id. at 933.

140 Id. at 935.

limits of First Amendment protection for free speech.141 She stated that, in these cases,

there is a delicate balancing of the need to protect individuals and groups from

threatening behavior while protecting the right of free speech for individuals and groups

who are not expressing themselves toward anyone in a threatening manner.142 Bradford noted that Brandenburg, in particular, added to Chaplinsky’s “fighting words” doctrine by adding the clarification that for speech to fall outside First Amendment protection, it must be directed to inciting or producing imminent lawless action and likely to product that action.143

Michael Rosenfeld, a law professor at the Cardozo School of Law, stated in 2003

that, in his analysis of Brandenburg v. Ohio, the Court’s decision is the current

constitutional standard for determining when hate speech no longer has any First

Amendment protection.144 He asserted that the Court equated protecting the constitutionality of hate speech with the Communist Cold War era in that extremist speech that was purely political in content and not aimed at any one individual was protected.145 Rosenfeld argued that the Brandenburg standard influenced the Court’s

R.A.V. decision.146 The targeted speech of the St. Paul cross burning statute did not

amount to an incitement to violence, the reason why Rosenfeld believes the Court struck

141 Melanie Bradford, Constitutional Law – Freedom of Speech – State Statutes May Prohibit Cross Burning With the Intent To Intimidate Without Violating First Amendment, 34 COMB. L. REV. 607, 611 (2004).

142 Id. at 616.

143 Id. at 611.

144 Michael Rosenfeld, Conference: Hate Speech in Constitutional Jurisprudence: A Comparative Analysis, 24 CARDOZO L. REV. 1523, 1537 (2003).

145 Id.

146 Id.

down the city ordinance.147 A burning cross did not equal “fighting words” and the

ordinance was based on impermissible viewpoint discrimination.148 According to

Rosenfeld, the Court could not allow the statute to stand because it criminalized expression likely to incite violence in one category (i.e. race or religion) but not others

(i.e. homosexuality).149 Rosenfeld posits that the Court’s approach to hate speech is

geared toward minimal regulation.

According to Roger Hartley, Public Policy Professor at the University of Arizona, this minimal regulation of speech may include threats against the individual. In his 2004 analysis of the Court’s Virginia v. Black decision, Hartley stated the Court reaffirmed the idea that the First Amendment does not provide any protection to speech that inflicts injury.150 According to the Court, for an injury to occur, the speaker must intend for the speech to intimidate. He agreed with the Court that speech, in this case a burning cross, that supports an unpopular viewpoint is still constitutionally protected.151 Hartley

contends that the Court’s decision means that an individual may not be punished simply

because speech has a tendency to produce evils.152 The government has the right to protect against intimidation. Without intent to intimidate, speech cannot be punished.153

147 Id. at 1539.

148 Id.

149 Id.

150 Roger C. Hartley, Cross Burning – Hate Speech As Free Speech: A Comment on Virginia v. Black, 54 CATH. U. L. REV. 1, 4 (2004).

151 Id. at 3.

152 Id. at 31.

153 Id.

In 2004 University of Oregon Communications Professor, Chris Demaske, stated

that the Court’s decision in Virginia v. Black means there is a new shift in the legal

treatment of hate speech.154 In his analysis of the case, hate speech can now be restricted

in certain circumstances related to the power relationship between speaker and victim.

Based on the Court’s opinion, Demaske advocated a three-pronged approach a court can

use to restrict speech.155 The first is that it should note the character, nature, and scope of the speech regulation. Secondly, a court should examine the historical context of the cultural groups involved in the speech at issue. Finally, a court should take into consideration the individual power relations between speaker and victim at the time of the speech act. In Virginia v. Black, Demaske stated the Court took into these three

approaches. It examined the scope of the burning cross statute; it accounted for the historical nature of cross burning and the associated historical disempowerment of a minority group; and it considered the cross burning act as a reflection of the relationship between speaker and victim.156 These factors led the Court to outlaw cross burning when

it is done with the intent to intimidate, he said.

With these differing analyses of the Court’s speech jurisprudence from

Chaplinsky v. New Hampshire to Virginia v. Black, the legal scholars all state that with

the 2003 Virginia v. Black ruling the Court still does not support any content-based

regulation of speech. The speech that can be restricted are those words and actions that

lead to threats and intimidation against an individual. The political or sociological theme

154 Chris Demaske, Modern Power and the First Amendment: Reassessing Hate Speech, 9 COMM. L. & POL’Y 273, 275 (2004).

155 Id.

156 Id. at 315.

of a speech is protected by the First Amendment as long as it does not cross a line to

threatening or harming a victim.

Canadian Hate Speech Laws

While in the United States, the approach to speech and, specifically, hate speech

on the Internet has largely been driven by Supreme Court rulings, Canadian attorneys

Bernard Funston and Eugene Meehan, argued in 1994 that the Canadian Parliament has

been the force behind that country’s hate speech laws including those that encompass the

Internet.157 In their analysis of the Canadian Charter of Rights, Funston and Meehan argued that rights and freedoms in Canada may be subject to reasonable limits prescribed by a federal law and can be justified in a democratic society.158 They state that the three

main values underlying Canadian democracy and free speech law include: 1) a pursuit of

truth, 2) political and social participation in the democratic process, and 3) self-

fulfillment.159 According to Funston and Meehan, any limits by the state on these three

components must be applied by the Court for an issue of pressing concern, and the means

used to limit speech must be proportionate to the Court’s goal of restricting speech.160

The three Canadian free speech values of pursuing the truth, political and social participation, and self-fulfillment exist in what Kent State University Professor Shannon

157 BERNARD W. FUNSTON AND EUGENE MEEHAN, CANADA’S CONSTITUTIONAL LAW IN A NUTSHELL 159 (1994).

158 Id.

159 Id. at 164.

160 Id. at 160.

Smithey called in 2002 a “post-liberal” Canadian environment.161 According to Smithey, the term, “post-liberal,” means that certain kinds of expression are not consistent with democratic self-governance and can be restricted.162 Smithey examined the Canadian

Supreme Court’s ruling in R. v. Keegstra as proof of the country’s post-liberal philosophy. In Keegstra the Court ruled that a high school teacher could not publicly express his anti-Semitic views to his students. Under a post-liberal approach, Smithey says the government has a greater role in maintaining “meaningful” freedom of expression.163 In Canada not everyone is equally free to have their opinions heard. She

stated that democracies do not need to tolerate all manner of anti-democratic expression

in order to function.164 She explained that post-liberals believe that members of vulnerable groups are often silenced by vitriolic attacks that are racist. By intervening to outlaw speech, the Canadian government is improving the overall (my emphasis) quality of public debate by ensuring that vulnerable groups are not excluded from the marketplace of ideas.165

In 1999 attorney Jeff Brunner wrote that Canadian law has tried to draw the line

between legally protected unpopular expression and banning racist speech that can hurt a

group of people.166 He stated that the statutes in the Canadian Criminal Code and the

161 Shannon Ishiyama Smithey, Cooperation and Conflict: Group Activity in R. v. Keegstra in THE MYTH OF THE SACRED: THE CHARTER, THE COURTS, AND THE POLITICS OF THE CONSTITUTION OF CANADA 193 (Patrick James, Donald E. Abelson, and Michael Lusztig eds., 2002).

162 Id. 163 Id.

164 Id. at 193.

165 Id. at 194.

166 Jeff Brunner, Canada’s Use of Criminal and Human Rights Legislation to Control Hate Propaganda, 26 MAN. L. J. 299 (1999).

Human Rights Act criminalize hateful expression that can hurt others.167 People can

speak their minds on unpopular subjects as long as they do not try to vilify one of

Canada’s minority groups. Brunner uses the example of Holocaust deniers. He said that

the Section 319 (2) of Criminal Code that prohibits promoting hatred against an

identifiable group allows Holocaust deniers to question the historical facts of the tragedy

as long as they do not vilify Canada’s Jewish population.168 When a group is publicly

exposed to hatred, then the Criminal Code or Human Rights Act can be used to prosecute

the perpetrators.169

A University of Montreal Law Professor, Chris Gosnell, explained that the goal of

Canadian hate speech laws is to prevent harm against a minority group that is the victim of hate propaganda.170 Gosnell analyzed both the Canadian laws restricting Internet hate speech and the country’s Human Rights Act. In 1998 he stated that harm is felt by minority groups not simply because they are exposed to negative rhetoric but also because the messages could gain some legitimacy in some parts of Canadian society.

Any restrictive action against hate groups must balance the prevention of harm against violating their free speech rights.171 Gosnell stated restrictions against speech that advocates intolerance could lead to discrimination or even violence towards a minority group.172 He explained that the following three variables should be used to measure this

167 Id. at 304.

168 Id. at 309.

169 Id. at 316.

170 Chris Gosnell, Hate Speech on the Internet: A Question of Context 23 QUEEN’S L.J. 419 (1998).

171 Id. at 424.

172 Id.

harm: 1) the pervasiveness of the speech including identifying the targeted group(s); 2)

who disseminates the speech; and 3) the medium used to spread the rhetoric. For

example, Gosnell contended that using electronic mail (e-mail) messages to disseminate

hate propaganda have different consequences than the hate messages on a Web site

because e-mails are “highly restricted distributed message databases.”173 He explained

that e-mails are more private because the senders are selectively choosing who receives the communication. In contrast, Web sites are a resource for the public, as a whole, to use. As a private message, the e-mails may not violate any Canadian law. A racist Web site would be against the law because it would violate statutes that ban public dissemination of hate propaganda.

While it would seem that several scholars agree with the Canadian approach to speech, in 2004 Ontario Barrister and Solicitor Stefan Braun argued for more of an

American-based First Amendment model on Canadian speech.174 In his analysis of the country’s federal laws, Braun argued that Canadian law against hate speech is not an exception to freedom of expression but an abrogation of free speech.175 Braun believed that in the last fifteen years, the legal right to public discussion in Canada on issues such as society, history, and governance – including hate speech – has become more

“contested.”176 He posited that the federal government, by criminalizing hate speech, has

173 Id.

174 STEFAN BRAUN, DEMOCRACY OFF BALANCE: FREEDOM OF EXPRESSION AND HATE PROPAGANDA LAW IN CANADA (2004).

175 Id. at 194.

176 Id. at 3.

drawn an official boundary around what constitutes legitimate public discourse.177 Braun posited that hate propaganda is speech with a political purpose to it.178 He said outlawing

hate speech will not promote tolerance, equality, or protect democracy.179

Internet-Based Hate Speech

In applying the different American and Canadian legal and philosophical

approaches to hate speech to the Internet, in 1997 Cass Sunstein, a law professor at the

University of Chicago, stated that new technologies have expanded the opportunity to

communicate obscene, libelous, violent, and harassing messages.180 Sunstein said that technology has made it easier for the disseminators of hate speech to violate the privacy of victims by sending hate messages over the Internet.181 However, Sunstein said hate speech on the Internet could be controlled by the same kind of laws used to govern

“ordinary speech.”182 He said that in the United States hate speech on the Internet could

be declared criminal in the same way that Congress has criminalized obscene material

and threatening letters sent through the U.S. Postal Service. Any narrowly tailored

speech restrictions, such as obscenity and threats, that apply to the U.S. mail system can

also be used on Internet hate speech.183 For example, solicitations to engage in unlawful

177 Id. at 4.

178 Id. at 183.

179 Id. at 9.

180 Cass R. Sunstein, The First Amendment in Cyberspace in FIRST AMENDMENT HANDBOOK: 1996-97 EDITION 39 (James L. Swanson et al. eds., 1997).

181 Id.

182 Id. at 40.

183 Id.

activity are not protected by the First Amendment regardless of the communications

medium used.184

Stanford Law Professor Lawrence Lessig disagreed with Sunstein’s approach of applying traditional American laws to cyberspace. While not examining any specific court cases, he attempted to show how the Internet’s technological characteristics promote free speech. In 1999 Lessig stated that with the anonymity of cyberspace and its continuing growth, traditional legal norms do not function as well in the arena of

“controversial speech.”185 Lessig stated that Internet users might be more tolerant of hate views when they know the speaker, who might never be identified, lives hundreds or thousands of miles away.186 As an example, Lessig cited Internet users who publish online controversial fictional stories and then post them on chat group Web sites.187 In many cases their true identities are never known.

According to Lessig, the Internet makes controversial speech likely and easy to disseminate because there is relative anonymity, decentralized distribution, multiple points of access, and no physical ties to a specific geography.188 Essentially, there is no way to always identify the owner of Internet content. The technology that makes the

Internet possible also allows users to encrypt who they are and how to locate them: “The architecture of cyberspace is the real protector of speech there; it is the real ‘First

184 Id. at 41.

185 LAWRENCE LESSIG, CODE: AND OTHER LAWS OF CYBESPACE 166 (1999).

186 Id.

187 Id.

188 Id.

Amendment’ in cyberspace.”189 Encryption allows senders of online hate and threats to remain anonymous. Lessig believes this real “First Amendment” is now global in nature because most nations are tied together through cyberspace. Even if countries do not have a First Amendment type of constitutional principle, encryption technology will make it easier for anyone to send any type of message in cyberspace without restrictions on content. The communications tool of e-mail can carry many types of speech to all parts of the world.190

Like Lessig, John Cronan in 2002 described the Internet as a global communication forum, not simply a place for posting Web sites but one including chat rooms and instant messaging services.191 These communication platforms act in “real time” similar to a telephone conversation or public rally in that two or more people can communicate almost instantly. In his article Cronan attempts to apply the Brandenburg test to the Internet. If a threat to violence, based on a form of hate speech, is communicated through cyberspace, then Brandenburg’s imminence of harm is likely if the person who commits a premeditated act is physically near the target. In this case,

Cronan states the imminence factor from the four-part 1969 Brandenburg Test would work.192 Cronan says it is likely that the communicators of the message would be

literally anywhere on the planet where there is a connection to a telephone or high-speed

189 Id. at 167.

190 Id.

191 John P. Cronan, The Next Challenge for the First Amendment: The Framework for an Internet Incitement Standard 51 CATH. U.L. REV. 451 (2002).

192 See Chapter 3.

Internet line. The receiver of the message could then be located near the target to

carryout the threat.

While the technology of the Internet makes it easy to communicate controversial

speech, Jason Schlosberg, an attorney, stated in 2001 that political activists, no matter

how extreme in their views, have a First Amendment right to free speech.193 He examined the impact that the Planned Parenthood case had on First Amendment freedom of expression. Schlosberg’s states his views stem from the threats made by anti-abortion activists toward abortion providers in the Planned Parenthood case. Schlosberg said that

the Internet deserves maximum First Amendment protection. He supports the ideas that

the Internet is an indirect “buffer” between a speaker and threatened victim because it is

not face-to-face communication and is over a long geographic distance.194 This distance,

Schlosberg says, may hinder legislative and judicial efforts to deter violent speech on the

Internet because the threats are not imminent. In his analysis, Schlosberg does not take into account Cronan’s notion that a receiver of online communication could be standing by and waiting for direction from someone issuing the threats.

When examining how the Canadian legal and philosophical approach to hate propaganda applies to the Internet, a Chicago city attorney, Alexander Tsesis, explained, in 2001, that Canadian law enforcement prosecutes individuals who receive Internet hate propaganda from other countries.195 By examining the Human Rights Act, Tsesis posited that the Canadian government relies on the law to prohibit the online distribution of hate

193 Jason Schlosberg, Judgment on “Nuremburg”: An Analysis of Free Speech and Anti-Abortion Threats Made on the Internet 7 B.U.J. SCI &TECH. L. 78 (2001).

194 Id. at 79.

195 Alexander Tsesis, Hate in Cyberspace: Regulating Hate Speech on the Internet 38 SAN DIEGO L. REV. 859 (2001).

materials.196 In Canada, judges have the power to issue warrants for confiscating hate

materials wherever they may be located.197 The Canadian Justice Department will investigate an owner’s computer hardware for sending and receiving hate propaganda including file storage hard drives and computer disks. If these resources contain hate propaganda materials, they can be impounded.198

In the past four years the Canadian Human Rights Tribunal has issued rulings on

three cases involving Internet-based hate speech. In 2002 in Citron and Toronto Mayor’s

Committee v. Zündel and Mark Schnell v. Machiavelli and Associates Emprize Inc. and

John Micka the Tribunal ordered two Web sites shut down because they violated the

Human Rights Code by exposing a minority group to public hatred. In 2004 Jane Bailey

wrote that the Tribunal has followed the legal precedents set by the Canadian Supreme

Court in judging if hate Web sites can be shut down.199 In the early 1990s in R v.

Keegstra, R. v. Andrews, and R. v. Taylor, the Court ruled that restricting public hate

propaganda does not violate the Canadian Constitution because the messages could

expose an individual or minority group to hatred and contempt.

In ruling that a Web site can be shut down if it contains hate propaganda, the

Tribunal has applied the law to Web sites but not other forms of Internet communication.

Bailey stated that hate propaganda by e-mail or instant messaging may be private

communication and not subject to the laws that prohibit public dissemination of hate.200

She says the type of content on the Internet and how that content is communicated is

196 Id. at 860.

197 Id. at 861.

198 Id.

relevant for interpreting it as public or private.201 According to Bailey, the Internet cannot be monolithically characterized as private or public in nature.202

Methodology

This research will rely on legal research methodology. This type of research

examines laws such as constitutions, statutes, court rulings, and administrative law.203

The statutes pertaining to Canadian Internet hate propaganda were found in the country’s

Criminal Code and Human Rights Act. The statutes banning online, threats, and

harassment in the U.S. are located in the United States Code. As already discussed, this

dissertation focuses on American and Canadian federal laws and court cases reviewed by

the two federal supreme courts, the lower federal courts, and the Canadian Human Rights

Tribunal.

In conducting legal research, Lexis Nexis was used to find several of the court

cases and statutes in Canada and the United States. In Lexis’s United States Code

Service Materials tab under Federal Legal U.S. “threats w/10 communications” and

“threaten w/10 telecommunications” produced the search results for the federal laws. In

locating several of the American court cases on threats and e-mail (a component of the

Internet), I used the search strings, “e-mail w/10 first amendment” and “e-mail and hate

speech” under the Federal and State Cases, combined tab. “Hate speech” and “threats

199 Jane Bailey, Of Mediums and Metaphors: How a Layered Methodology Might Contribute to Constitutional Analysis of Internet Content Regulation, 30 MAN. L. J. 197 (2004).

200 Id. at 201.

201 Id. at 226.

202 Id.

203 See CHRISTINA KUNZ, ET AL., THE PROCESS OF LEGAL RESEARCH 10 (2000).

44 w/10 speech” under Supreme Court cases – Lawyers Edition produced the U.S. Supreme

Court cases such as Virginia v. Black and R.A.V. v. St. Paul. I shepardized these cases to find lower federal court cases.

In order to search Lexis’s Canadian Criminal Code tab, I used the string “hate propaganda.” The Canadian Supreme Court cases were also obtained by using the string

“hate propaganda” in the All Supreme Court of Canada Decisions of the Canada Case

Law tab of Lexis. “Hate propaganda” showed up in all of the Supreme Court cases.

These cases were shepardized as an attempt to find cases at the lower federal Canadian courts. In order to find court cases pertaining to Internet-based hate speech that came before the Canadian Human Rights Tribunal, I conducted a search on the Tribunal’s Web site using the string “Internet hate propaganda.” It yielded three results.

For the secondary materials, I used a few different search strings under Law

Review and Journal in the Secondary Legal tab. Since Brandenburg, R.A.V., and

Virginia are the most pertinent U.S. Court cases, I used the strings, “Brandenburg w/p hate speech,” “R.A.V. w/p hate speech,” and “Virginia v. Black.” They produced several articles that appeared in all three of these strings. For analyses of the Chaplinsky,

Beauharnais, and Ashton cases that date back prior to the advent of Lexis Nexus, I used the Index to Legal Periodicals to find articles from the 1950s to the late 1970s. In finding U.S. and Canadian articles on Internet-based hate speech, “Internet w/20 of hate speech” was the string used to locate more secondary materials. For a general analysis of the U.S. First Amendment and Canadian Charter of Rights, several books were used. The

University of Florida’s library Web site was used for an online search of books written by constitutional scholars in the United States and Canada.

The dissertation has the following chapter outline:

• Chapter 1: Introduction (sets the framework, methodology, relevant literature and Research Questions for the study)

• Chapter 2: How the Internet, as a medium, can be used as a platform for hate speech. It encompasses several types of communication including websites for displaying text, audio, and video; e-mail for direct communication; chat forums displaying messages for mass audiences; and instant messaging for text-based communication. This chapter includes how the U.S. and Canadian Supreme Courts have defined the character of the Internet as a tool for speech by briefly reviewing Reno v. ACLU in the American context and Canadian Association of Internet Providers v. Society of Composers, Authors, and Music Publishers of Canada in the Canadian context. This chapter also examines the federal laws in both countries that restrict threats and hate propaganda as well as the legislative intent in enacting the statutes.

• Chapter 3: A Review of pertinent court cases that came before the U.S. Supreme Court pertaining to constitutional restrictions of speech. The cases date from the 1910s to 2003 when the Court reviewed speech restrictions pertaining to clear and present danger, fighting words, hate speech, and threats. The chapter also examines lower federal court cases on speech restrictions including campus speech codes and Internet-based speech. It analyzes the federal laws restricting Internet threats and the court cases that upheld the laws.

• Chapter 4: A Review of the Canadian federal statutes that restrict hate propaganda including speech on the Internet. This chapter analyzes the cases that came before the Canadian Supreme Court and whether the Court upheld the laws banning public dissemination of hate propaganda. It also reviews the decisions by the Canadian Human Rights Tribunal pertaining to Internet-based hate propaganda cases

• Chapter 5: The American and Canadian federal statutes regarding online hate propaganda and threats are directly compared. The decisions by both countries’ Supreme Courts are also analyzed. The chapter answers the dissertation’s Research Questions. It concludes with a summary of the dissertation’s findings and areas for future research.

Conclusion

The answers to my research questions have allowed me, as a scholar, to examine how the hate speech and threats laws are applied to the Internet by the U.S. and Canadian

governments. The Internet is a powerful communications tool that is a vital part of how we, as a society, communicate. My goal is to compare and contrast the American and

Canadian laws on hate speech and how they apply to the Internet. This research has allowed me to understand why the two countries have adopted their respected legal approaches and what we, in the United States, might be able to learn from the Canadian approach in protecting minorities and individuals from hate directed at them through the

Internet.

CHAPTER 2 THE INTERNET AND ITS SPEECH LAWS

The Internet is a communications tool that allows a user to place information in a

catalog-like forum and to communicate directly with others in “real time” (nearly

instantaneously) or through a time delay.1 No one person or organization controls or supervises the Internet.2 Users connect to online material via a modem that is plugged into a computer terminal.3 The Internet is a multi-modal medium with lots of content and interactive communication.4 As a communication technology, the Internet makes it possible for people to communicate.5 A user can browse material online by visiting Web

sites where people, companies, governments, or organizations have posted information.6

1 SUSAN B. BARNES, COMPUTER-MEDIATED COMMUNICATION – HUMAN TO HUMAN COMMUNICATION ACROSS THE INTERNET 8 (2003).

2 JOHN V. PAVLIK AND SHAWN MCINTOSH, CONVERGING MEDIA: AN INTRODUCTION TO MASS COMMUNICATION 188 (2004).

3 Id. at 190. Modem is short for modulate-demodulate. A modem converts digital information in a computer to analog signals for transmission over a telephone or cable television line and then reconverts the signal to digital in another computer. Dial-up modems operate a narrowband, whereas, broadband modems provide high speed Internet access. Dial-up speed is between 2400 bits per second and 56 kilobits per second (Kbps). Broadband delivers the Internet into a computer at speeds between 52 Kbps and 8 megabits per second depending on the method of transmission, cable modem or a digital subscriber line (DSL).

4 Id. at 189.

5 Id.

6 PAVLIK and MCINTOSH, supra note 2 at 443.

47 48

Many users either seek out content or “publish” their own.7 An individual can also send direct communication to another person or group of people.8

Technologically, the Internet is a digital communication service.9 It transfers a set of numbers from one computer to another.10 The numbers stored in the computer can be

used to encode almost any information including documents, audio, or video.11 All data

is encoded using two values: zeros and ones.12 These values are also known as bits.13

Computer networks permit the distribution of content to be flexible so if one route on the network is not available, another route can be used.14 Digital networks compress data, which, in turn, allows an individual to send more information in the same amount of space on the network.15 This technological backbone of the Internet allows it to be used

for several communication applications: the World Wide Web, electronic mail (e-mail),

Electronic Bulletin Board Service, blogging, podcasting, and Instant Messaging.16

7 Id.

8 Id.

9 DOUGLAS E. COMER, THE INTERNET BOOK: EVERYTHING YOU NEED TO KNOW ABOUT COMPUTER NETWORKING AND HOW THE INTERNET WORKS 36 (2000).

10 Id.

11 Id.

12 Id.

13 Id.

14 PAVLIK and MCINTOSH, supra note 2 at 190.

15 Id.

16 Id. and BARNES, supra note 1.

World Wide Web

The World Wide Web is also known as the “Web.”17 A Web site is a point of contact for an individual, organization, company, or governmental entity.18 Each Web

site is given an identification string called a Uniform Resource Locator (URL).19 The

URL contains the domain name of a remote computer, a particular server, and specific

Web page.20

A Web site contains all the information the entity wants displayed for Internet users to see.21 A Web site is divided into “pages” with each page displaying a different

set of information.22 A page is designed to fit on a user’s computer screen. When a user

moves to a new page, the contents of the previous page are no longer visible. A Web

site’s page can include audio, photos, and video materials that a user can access.23

Blogs

One communication component of the World Wide Web is blogs, Web sites where people can publish their opinions, ideas, and thoughts on any subject. 24 Blogs can be written by anyone in society including journalists, business executives, politicians, and

17 COMER, supra note 9 at 8.

18 Id.

19 Id. at 202.

20 Id.

21 Id. at 8.

22 Id. Each Web page is written in a language called HyperText Markup Language (HTML). A Web site’s creator can a browser how to display the contents of a Web page. Id. at 209-10.

23 Id. at 195.

24 Michael Woods, Blog Becoming Internet Mainstream, SCRIPSS HOWARD NEWS SERVICE, April 13, 2004.

children.25 The updates to a blog are called “posts.”26 A post can be a brief thought or a lengthy diatribe.27 A blog can also contain hyperlinks to other blogs or Web sites in general.28 An August 2005 survey found that nearly 50 million Americans visited and read a blog in the first three months of 2005.29

E-mail

Different from a Web site’s display of content or a blog’s posting of opinion, electronic mail (e-mail) is used to send a single message to one person or many designated recipients.30 An e-mail message can include text, audio, video, or graphics.31

E-mail can be delivered to a recipient on the same network or to a recipient on a different network.32 Computers can transfer small or large documents in an e-mail across a network almost instantaneously.33

E-mail is usually stored in an electronic “mailbox” and is private in the same way that traditional, paper-based mail from the U.S. Postal Service is private.34 Anyone can send a message to an electronic mailbox, but only the owner can examine mailbox

25 Id.

26 Id.

27 Id.

28 Guido Geerts and Kim Myunghee, Blogging 101 for CPAs; Technology Trends; Certified Public Accountants, THE CPA JOURNAL, July 1, 2005 at 12.

29 Doug Tsuruoka, Nearly 1 in 3 Web Surfers Visit Blogs, INVESTOR’S BUSINESS DAILY, September 1, 2005 at A4.

30 Id. at 157.

31 Id.

32 Id.

33 Id. at 158.

34 Id.

contents, delete, or save the message.35 Each e-mail box has an “address” used to send a

message to and from a user.36 In order to send e-mail across the Internet, individuals use an e-mail software application program on their computers.37 This software can come from an Internet Service Provider (ISP) or be specifically purchased for a specific e-mail account. When e-mail is received, it is stored in user’s mailbox within the e-mail software program.38

Many Internet users view e-mail as an instantaneous communication tool in that it

operates more like a telephone than traditional postal mail.39 E-mail provides for high-

speed transfer of information while allowing receivers to choose when to answer their

messages.40 Sometimes, two people can exchange a series of brief e-mails that resemble a short conversation.41 E-mail can also be used to create a large, mass list of message

recipients.42 E-mail is one of the most widely used services on the Internet.43

Electronic Bulletin Board Service

Whereas e-mail is used to send a specific message to a recipient or group of recipients, an electronic bulletin board service allows a person to participate in multiple

35 Id. In corporate environments employers, through official company policy, can read an employees e- mail.

36 Id.

37 Id.

38 Id.

39 Id. at 167.

40 Id. at 168.

41 Id.

42 Id.

43 Id. at 169.

discussion groups where each group focuses on a specific topic.44 Bulletin board services

allow a user to select one or more discussion groups of interest, to check to see if new

material has been posted, post a note for others to read, and post a reply to a message

someone else has written.45 Similar to an informal discussion group, with an electronic bulletin board an individual can “listen” in on a conversation; pose questions to others;

briefly comment on a stream of conversation; or contribute lengthy comments.46

Thousands of electronic bulletin boards contain an ongoing discussion about a single topic.47 Electronic bulletin boards are also known as “computer discussion groups” and

“computer conference services.”48

The major electronic bulletin board service is referred to as “network news” or

“net news.”49 Net news labels each discussion group a “newsgroup” when referring to

each individual bulletin board. Each individual message that is posted is labeled an

“article.”50 USENET is the term that refers collectively to all sites that participate in the exchange of network news.51 E-mail is a communications tool that an individual can use to send an article to a newsgroup.52

44 Id. at 171.

45 Id. at 172.

46 Id.

47 Id.

48 Id.

49 Id. at 173.

50 Id.

51 Id.

52 Id. at 181.

Internet electronic mailing lists and bulletin boards provide an opportunity for

people around the world to exchange views.53 Since the Internet crosses geographic and political boundaries, it can extend discussion to a diverse set of people from many

countries.54 The ease of communicating with anyone in the world also extends to instant messaging.

Instant Messaging

The communications tool known as instant messaging (IM) enables people who are logged onto their computers simultaneously to exchange short messages in

“synchronous communication” or real time.55 These messages often “pop up” on a user’s computer screen. For example on America Online (AOL), software from the ISP allows friends and family members to exchange messages with each other.56 Similar to e-mail, these instant messages bring together individuals who are physically separated, but they differ from e-mail because of the instant back and forth communication. IMs, like bulletin boards or chat rooms, allow the recipient to “hear” the message once it is

“spoken.”57

All the different communication platforms on the Internet allow hundreds of

millions of Internet users around the world to communicate with one another as long as

53 Id.

54 Id.

55 BARNES, supra note 1 at 8.

56 Id. Besides America Online, other Internet Service Providers provide an instant messaging service. For example, Microsoft’s MSN Messenger service allows users to send audio, video, and text to others instantly or in “real time” at http://www.imagine-msn.com/Messenger/Default2.aspx. Yahoo!’s Messenger service allows its user to send text and video message as well as icons to reflect the user’s mood at http://messenger.yahoo.com/.

57 John Cronan, The Next Challenge for the First Amendment: The Framework for an Internet Incitement Standard, 51 CATH U.L. REV. 425, 450 (2002).

they have access to it.58 Web sites and bulletin boards allow users to reach out to a “new

and vast” audience.59 For example, advocacy groups who were once limited by mail can e-mail several, hundred, or thousands of people with a “few keystrokes.”60

Podcasts

Different from bulletin boards and instant messaging, another Internet-based communication technology – podcasting – has emerged in the last two years. Podcasts are downloadable radio and television style broadcasts that play on an individual’s computer or MP3 player.61 Podcasting allows users to create, and then upload, their own programs on the World Wide Web.62 Listeners can then download the podcast – often for a fee – and then listen or view at their leisure.63 More than 30 million people in the

United States are viewing and listening to podcasts.64

In the United States, the Internet has empowered millions of Americans to

participate in new forms of speech.65 The unknown factor from Web sites and discussion groups is that it is often a guess as to who the audience is.66 Often, the creators of Web

58 Id. at 426.

59 Id.

60 Id.

61 PodSpider Puts World’s Largest Podcast Directory on Tap, MARKET WIRE, August 30, 2005. MP3 players use digital technology to play audio that is downloaded from the computer. MP3 means the audio waves are digitally compressed.

62 Marc Saltzman, New iTunes Makes It Easy To Join Podcasting Phenomenon, GANNET NEWS SERVICE, June 7, 2005.

63 Id. Apple Computer’s iTunes is an example of a company that allows a listener to purchase an audio program for a fee.

64 Id.

65 Cronan, supra note 57, at 427.

66 Id. at 450.

sites and discussion forums do not engage in a conversation with specific individuals

because they do not know who views their Web site’s contents.67 With e-mail and instant messaging, the recipients of communication are known.

U.S. and Canadian Regulation of Internet Speech

With the differing communication platforms the Internet provides the user, cyberspace is capable of being used for commerce, private communication, and dissemination of information. The Internet can also be used to expose groups of individuals to several forms of speech including pornography, obscenity, and hate speech.

While the U.S. Federal Communications Commission does not actively regulated speech on the Internet,68 the Supreme Court has provided answers to how much First

Amendment protection Internet speech deserves.

In 1997, the Court overturned two provisions of the 1996 Telecommunications

Act’s Decency Act (CDA) that made it a crime to transmit indecent, patently offensive,

and obscene material to minors under 18 years old.69 In its ruling, the Court found the

CDA unconstitutional because it was not narrowly drawn to restrict as little speech as possible. It ruled that any restriction on Internet speech must be narrowly drawn.70 A

67 Id. at 452.

68 The Federal Communications Commission’s (FCC) states that “Historically, the FCC has not regulated the Internet or the services provided over it.” Rather, the FCC has “worked to create an environment promoting competition and innovation to benefit consumers” at http://www.fcc.gov/voip/.

69 Reno v ACLU, 521 U.S. 844 (1997). The Court ruled that several terms in the law such as “patently offensive” and “indecent” were vague because Congress did not provide precise definitions for them. The Court warned of the danger of Internet speakers censoring themselves or having constitutionally protected material suppressed. Also, the Court found the law overbroad in that it prohibited online communications that are constitutionally protected. For example, similar to the Internet, print-based indecency is protected speech. The Court did uphold the CDA’s ban on obscene speech because it stated that obscene material is not protected speech in any form or medium.

70 Id. at 882.

law designed to limit Internet speech must not eliminate a large portion of content already

online.71 The Court used the narrowly tailored test because it feared the CDA would cast

a “darker shadow” over free speech on the Internet.72 What is also important about the decision was how the Court defined the speech value of the Internet.

In its 7 –2 decision, the Court commented that the Internet is a “unique and wholly new medium of worldwide human communication.”73 It ruled that the Internet

could not be regulated like broadcasting because it is not as "invasive" as radio or

television.74 Internet communications do not invade a person’s home; rather, a user must

perform a series of steps to find content.75 Unlike broadcasting, the Internet is not a

"scarce" commodity.76 The Court stated that the Internet provides relatively unlimited,

low-cost capacity for communication “of all kinds.”77 The Court also explained that the

Internet is similar to telephone service in that it takes a series of “affirmative steps” by users to receive its content.78

Writing for the Court, Justice John Paul Stevens stated that anyone with access to

the Internet could take advantage of a wide variety of communication and information

71 Id.

72 Id.

73 Id. at 850.

74 Id. at 869.

75 Id.

76 Id. at 870.

77 Id.

78 Id.

retrieval methods.79 The Court recognized five areas of communication the Internet

provided at that time: e-mail, list servs, newsgroups, chat rooms, and the World Wide

Web.80 These five communication tools were a “unique medium” in cyberspace because

they are not located in a particular geographic location but anyone can access them.81

Stevens described the Internet as a “dynamic, multifaceted category of communication” that includes traditional print and news services and audio, video, and still images as well as interactive real-time dialogue (Instant Messaging).82 He wrote that cyberspace allows anyone to become a “town crier” in chat rooms “with a voice that resonates farther than it could from any soapbox.”83 An individual could also become the equivalent of a

“pamphleteer” through the use of Web pages, e-mail, and newsgroups.84 Essentially,

Stevens posited that the limit of Internet content “is as diverse as human thought."85

The Court compared the contents of the Web to a “vast library” that includes

millions of readily available and indexed publications, commercial goods, and services.86

Anyone with a computer connected to the Internet can publish information on the Web.

Publishers of information can be agencies, educational institutions, commercial entities,

79 Id. at 851.

80 Id.

81 Id.

82 Id. at 870.

83 Id.

84 Id.

85 Id.

86 Id. at 853.

advocacy groups, and individuals.87 The Court recognized that no single organization controls membership on the Internet and there is no central point from which individual

Web sites or services can be blocked on the Internet.88

In 2004 the Court issued a ruling on the Child Online Protection Act (COPA) that reflected its Reno decision.89 In Ashcroft v. ACLU, the Court, in a 5-4 ruling, upheld the

decision by a lower appeals court that COPA’s ban on Internet postings harmful to

minors from commercial Web sites was not the least restrictive manner of limiting

speech. Writing for the Court, Justice Anthony Kennedy stated that Internet filters were a

plausible, less restrictive manner of protecting minors from harmful materials while

preserving adult access to indecency.90 In the opinion, Kennedy stated the Court wanted

as few speech restrictions placed on the Internet as possible because of the potential for

“chilling” speech.91 The Court noted that obscenity laws apply to the Internet and could be used to protect minors from harmful materials.92

Both the Reno and Ashcroft cases relate to the topic of this dissertation because

they examine Internet speech in the context of the First Amendment. The Internet does

not have the same speech legal restrictions of broadcast. Reno’s impact is on the First

Amendment ramifications of the Internet as a communications medium.

87 Id.

88 Id.

89 Ashcroft v. ACLU, 542 U.S. 656 (2004).

90 Id. at 673.

91 Id. at 671.

92 Id.

In 2003 the Court in Virginia v. Black93 outlawed the burning of a cross as intimidation. The Court stated that threats against individuals lack First Amendment protection. The Court’s Virginia v. Black ruling did not impact the Reno and Ashcroft

decisions because the Internet was not involved with the cross burning. What is

important about the Court’s ruling in Virginia v. Black for this dissertation is that the First

Amendment does not protect threats, and lower federal appeals courts have ruled against

Internet-based threats.

As an example of online threats lacking First Amendment protection, in 2002, the

Ninth Circuit of the U.S. Court of Appeals ordered a Web site shut down for threatening

doctors who performed abortions.94 The court stated that the doctors’ lives were threatened by the display of their names, addresses, and telephone numbers. The anti- abortion Web site, the “Nuremburg Files,” acted as a score card by keeping track of dead, wounded, and living doctors. The court, in its ruling, stated that the Web site would have been legal had it simply contained anti-abortion sentiments, but it crossed the line when it listed the doctors’ personal information and placed their lives in danger.95 The court said that the “Nuremburg Files” Web site failed the Supreme Court’s 1969 Brandenburg test for incitement to violence because pro-life extremists may have used the Web site as a tool for locating and harming abortion providers. Chapter Three will explain the

Brandenburg Test.

93 Virginia v. Black, 538 U.S. 343 (2003).

94 Planned Parenthood of the Columbia/Willamette, Inc. v. ACLA, 290 F. 3d 1058 (9th Cir. 2002 en banc).

95 The court cited Brandenburg v. Ohio, 395 U.S. 444 (1969) in its reasoning. Brandenburg will be discussed in Chapter 3 of this dissertation.

In another example from 2002, the Sixth Circuit of the U.S. Court of Appeals ruled that e-mail threats lacked any First Amendment protection.96 In U.S. v. Newell, the

appeals court ruled that Tommy Newell’s threats against his ex-lover violated a federal

anti-threats law.97 In the court’s ruling, the threat itself was the important consideration and not the fact that an Internet-based technology was used to convey it. The Internet, as a communications medium, was not paramount to the court’s ruling. The court’s decision was based on the federal anti-threats law that bans threats of injury in interstate commerce.98 Chapter Three will analyze this law in further detail.

Congress Tackles Threats on the Internet

While the courts have reviewed speech ordinances written at the state and local levels, Congress has passed two federal laws designed to protect individuals from threats.

As technology has advanced, Congress and the federal courts have updated the federal anti-threat statutes for the Internet era. The Telecommunications Act of 1996 criminalizes using the Internet to harass and threaten an individual.99 When debating these laws, members of Congress often show the legislative intent in enacting the

96 U.S. v. Newell, 309 F. 3d 396 (6th Cir. 2002).

97 18 U.S.C. § 875 (c) (2005). The law states that “Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.”

98 18 U.S.C. § 875(c) (2005) states, “Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.”

99 47 USCS§223(a)(C)-(E) (2005). Title 47 Telegraphs, Telephones, and Radiotelegraphs – Chapter 5 Wire or Radio Communication Common Carriers, Common Carrier Regulation states that “Whoever…in interstate or foreign communications--makes a telephone call or utilizes a telecommunications device, whether or not conversation or communication ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person at the called number or who receives the communications…makes or causes the telephone of another repeatedly or continuously to ring, with intent to harass any person at the called number; or…makes repeated telephone calls or repeatedly initiates communication with a telecommunications device, during which conversation or communication ensues, solely to harass any person at the called number or who receives the communication…”

61 statutes. For example in 1995 when the Senate debated the contents of

Telecommunication Act, members of the Senate stated they worried that minors were being potentially exposed to indecency on the Internet, and adults were at risk from online harassment and threats. In the law, Senators included provisions to protect people from Internet-based harassment and threats.

In the 1995 Senate debate over the Telecommunications Act, the bill’s sponsors,

Senators James Exon and Dan Coats, stated that they wanted to extend the laws prohibiting indecency, obscenity, and threats that applied to the telephone and the U.S.

Postal Service to the information superhighway.100 The legislation in the law made threatening and harassing an individual on the Internet a crime. Exon and Coats stated that their overall goal was to make the Internet a safer place for “families and children to travel.”101 In reviewing the debate transcripts, most of the Senators emphasized the

importance of the indecency elements of the bill, but they did discuss the law’s threats

and harassment measures.

100141 Cong Rec. S 8310 (daily ed. June 14, 1995) (statements of Sen. James Exon and Dan Coats). Senators James Exon (Democrat) and Dan Coats (Republican) co-sponsored the law in the Senate. Democratic Senator Patrick Leahy led the opposition. In 1997 the U.S. Supreme Court overturned the portion of the law that outlawed exposing children to online indecency, but lower courts have upheld the threats and harassment provisions. See Reno v. ACLU, 521 U.S. 844, 885 (1997).

101 Id. The following is a sample of the debate in the U.S. Senate from June 14, 1995, the day a vote on the law was taken:

Exon: “Not only are children being exposed to the most perverted pornography and inappropriate communications, but adults are also being electronically stalked and harassed…This legislation attempts to make the information superhighway a little bit safer for families and children to travel. The time to act is now. Delay only serves those who would endanger the Nation's children and those who use the new technology to distribute obscene materials or use the secrecy of the computer medium to harass others.”

Coats: “What we are doing here is not new. What we are doing here is not something that has not been debated before this body. We are taking the standards adopted by the Senate, by the Congress, signed into law, that apply to the use of these kinds of communications over the phones and applied it, now, over the computer wires. It is just simply a different means of bringing communication into a home – through the computer rather than through the phone. We are talking about the same standards.”

Senator Patrick Leahy’s led the opposition,102 but the bill passed the Senate 84-16

with wide bipartisan support.103 It then passed the House 414-16.104 In addition to the

Telecommunications Act, there is another law on extortion and threats that prohibits

threatening an individual in interstate communications.105 Prosecutors have successfully used both laws for telephone and e-mail threats.

In addition to the federal appeals courts’ rulings examining Internet-based threats in the context of the First Amendment when Congress passed the Telecommunications

Act in 1996, it exempted Internet Service Providers (ISPs) from liability if their

customers used its services to post materials that are excessively violent, harassing, or

defamatory.106 Title 47, Section 230 of the U.S. Code applies to any lawsuit begun after enforcement of the law even if the misconduct occurred prior to enactment. The law states that “…No provider or user of an interactive computer service shall be held liable on account of…any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such

102 Id. In leading the opposition to part of the Telecommunications Act, Senator Leahy stated: “Maybe we can do it the same way my parents did. They guided me when we read. We have software that can allow parents to know what their children see on the Internet. Maybe some day we will accept the fact that there is some responsibility on the part of parents, not on the part of the U.S. Congress to tell children exactly what they should do and read and see and talk about as they are growing up.”

103 Id.

104 142 Cong Rec H 1145 (daily ed. February 1, 1996).

105 18 U.S.C. § 875 (2005).

106 47 USCS§230(c)(2)(2005) Title 47 Telegraphs, Telephones, and Radiotelegraphs – Chapter 5 Wire or Radio Communication Common Carriers, Common Carrier Regulation states that “…No provider or user of an interactive computer service shall be held liable on account of…any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”

material is constitutionally protected.”107 It has been challenged in court several times since it was enacted, but in each case, the courts have upheld the right of Congress to exempt ISPs from liability when defamatory or threatening statements are made on their servers. The courts have ruled that the law exempts ISPs but not the perpetrators of threats.

In Zeran v. America Online108 (AOL), Kenneth Zeran sued AOL because it did

not quickly remove messages telling its users to call Zeran’s telephone number to

purchase “naughty Oklahoma T-Shirts.”109 The prank was posted online after the April

19, 1995 Oklahoma City bombing of the Alfred P. Murrah Federal Building.110 Zeran received a high volume of calls including angry messages and death threats. He contacted AOL asking the company to remove the message on one of its bulletin boards.

The perpetrator of the message was unknown. Zeran received hundreds of angry messages often at the rate of one telephone call every two minutes.111 Zeran sued AOL as both the publisher and distributor of the message.

The U.S. District Court for the Eastern District of Virginia ruled that the 1996

Telecommunications Act (47 USCS §230) exempted ISPs such as AOL from any liability for defamatory messages. The U.S. Court of Appeals for the Fourth Circuit upheld the

107 Id.

108 Zeran v. America Online, 129 F.3d 327 (4th Cir. 1997).

109 Id.

110 Id. at 329.

111 Id. at 329.

decision. The court stated that it could not hear any claims that would place an ISP in a

publisher’s role.112 The law bars such lawsuits.

Writing for the majority, Chief Judge Harvie Wilkinson stated Congress enacted

the law to “maintain the robust nature of Internet communication and, accordingly, to

keep government interference in the medium to a minimum.”113 Wilkinson wrote that

the original, unknown, culpable party was to blame - not AOL. He encouraged law

enforcement officials to try and find the individual who posted the original message to

ensure that punishment against the perpetrator would occur under the law.114 Wilkinson warned the law was needed to protect ISPs because without it the “specter of liability in an area of such prolific speech would have an obvious chilling effect” on them.115 The

Judge stated that AOL is like any other online distributor of information in that it sometimes may not know all of the contents on its server including any defamatory material.116

In Blumenthal v. Drudge, 117 the U.S. District Court for the District of Columbia

exonerated AOL from any liability under the Telecommunications Act. Sidney

Blumenthal sued AOL and Matt Drudge over defamatory statements that he had a record

of spousal abuse.118 Blumenthal had worked in the Clinton administration as Assistant to

112 Id. at 330.

113 Id.

114 Id.

115 Id. at 331.

116 Id.

117 992 F. Supp. 44 (1998).

118 Id. at 46.

the President. Drudge was the editor of the online political newsletter, the Drudge

Report. In the spring of 1997, Drudge entered into an agreement with AOL making the

Drudge Report available to AOL members. As part of the contract, AOL paid Drudge

$3,000 a month.119 Under the agreement, AOL could remove any content that the company determined violated its standard terms of service.

On August 10, 1997 the alleged defamatory statements against Blumenthal appeared on the Drudge Report and were made available to AOL members.120 The next

day on August 11, Drudge retracted the story and apologized to Blumenthal.121 Judge

Paul Friedman ruled that the Telecommunications Act shielded AOL from liability.122

AOL was exempted from liability because Drudge was the author, and the ISP did not have any editorial involvement in the article.123 Friedman based his opinion on the Zeran

case.124 He noted that the only legal action available to Blumenthal was his lawsuit

against Drudge.

A third case where the courts relied on the Telecommunications Act to grant

immunity of liability to an ISP is Green v. AOL.125 John Green sued AOL and “John

Does 1 and 2” for transmitting harmful messages in a chat room on AOL’s server. In his

lawsuit, Green accused AOL of failing to live up to its contractual obligation by refusing

119 Id. at 47.

120 Id. at 48.

121 Id.

122 Id. at 50.

123 Id.

124 Id.

125 318 F.3d 465 (3rd Cir. 2003).

to take quick and necessary action against John Does 1 and 2.126 Green wanted the ISP to

compensate him with $400 in damages to his computer from AOL and the two John

Does.127

Green alleged that John Doe 1 sent a “punter” through a chat group, “Romance -

New Jersey over 30,” that locked up his computer.128 A punter can prevent an individual from using their computer, essentially “freezing” it up.129 In a second incident, Green

accused John Does 1 and 2 of using aliases in the chat group and sending defamatory

messages to its users alleging Green was gay.130 On a third occasion, John Doe 2 allegedly impersonated Green in the chat room asking male participants to participate in gay sex.131 In his complaint, Green said he faxed AOL a log of the chat room discussion

in which he states John Does 1 and 2 defamed him.132 Green states AOL took no immediate action.

The U.S. District Court for New Jersey granted AOL’s motion to dismiss the case.

The Third Circuit of the U.S. Court of Appeals upheld the lower court’s ruling stating the

Telecommunications Act provides immunity to AOL. As in the Drudge case, the court referred to Zeran in its reasoning.133 Writing the majority’s opinion, Judge Max Rosenn

126 Id. at 470.

127 Id.

128 Id. at 469.

129 Id. at 471.

130 Id. Examples of the messages include: “SHELLS CAREFUL LAWYER IS BI” and “LAWYER NO IMS FOR GAY SEX THX :)).”

131 Id.

132 Id. at 469.

133 Id. at 471.

stated that the law does not require AOL to restrict speech.134 Instead, it gives the service provider the right to establish standards of decency for its chat rooms without risking liability for doing so.135 In its decision the Court referred to the wording of the law that grants immunity to ISPs for any defamatory content placed on their Web sites by an unknown party.136 As with the Zeran decision, Rosenn said that the law does not allow

courts to view ISPs as publishers of online content.137

In all three federal cases involving potential liability for ISPs when defamatory

material is posted on their sites, the courts have made it clear that the

Telecommunications Act shields them from prosecution. The courts agreed that the

plaintiff has the right to sue the actual person who posted the messages. The downside in

two of the three rulings is that the Internet allows perpetrators to shield their identity making it difficult to track them down.138

While the U.S. Supreme Court has ruled that the Internet is not similar to

broadcasting and, instead, should receive a maximum amount of free speech similar to

the status enjoyed by the print press, the Canadian Supreme Court has examined

cyberspace more from a technical standpoint than from a free speech point of view.139 It

134 Id. at 472.

135 Id.

136 Id.

137 Id.

138 See LAWRENCE LESSIG, CODE: AND OTHER LAWS OF CYBESPACE 166 (1999).

139 In a Lexis Nexus search of Canadian Supreme Court decisions involving Internet content and speech limitations, only one case was found: Canadian Association of Internet Providers v. Society of Composers, Authors, and Music Publishers of Canada, [2004] S.C.R. 427. Shepardizing this case did not yield any more Supreme Court cases. The search terms, “Internet w/p speech,” Internet w/p pornography,” and “Internet w/p copyright” were used.

has not issued a ruling on how the Canadian Charter of Rights impacts the Internet. In

2004 in a case involving ISP liability for copyright infringement, the Supreme Court

stated that the Internet is a “huge communications facility.”140 It consists of a worldwide network of computer networks deployed to communicate information. In its description of how users gain entry onto the Internet, the Court stated that end users and content providers connect to the Internet with a modem under contract with an ISP.141

The case involved the question of who should compensate Canadian musical

composers and artists for their copyright when music is downloaded in Canada from a

foreign country. Canadian ISPs argued that they neither communicate, nor authorize anyone to communicate, musical works because they are merely a conduit for information and do not regulate the content of the Internet communications which they

transmit. The Court agreed with the Internet Service Providers. It ruled that ISPs are not considered users of the illegally copyrighted material and, therefore, immune from any lawsuit against anyone breaking Canadian copyright laws. The Court deferred to

Parliament’s intent when it enacted an update to the federal Copyright Act. When it passed the law, Parliament designated ISPs as part of the Internet infrastructure of technology and not as users.142

With the Supreme Court not defining how Internet-based speech is limited by

Canada’s Charter of Rights, a Canadian federal trial court has given a more precise ruling

140 Canadian Association of Internet Providers v. Society of Composers, Authors, and Music Publishers of Canada, [2004] S.C.R. 427. The Court stated that the Internet poses a challenge to Canadian copyright laws because copyright is territorial in nature.

141 Id. at 438.

142 Id. at 430.

on the extent federal hate propaganda laws apply to the Internet.143 In 1999 Judge J.

Evans dismissed an application by Ernst Zündel to prevent the Canadian Human Rights

Commission from appointing a Human Rights Tribunal to investigate his alleged anti-

Semitic Web site.144 In denying the request, Judge Evans ruled that the Canadian hate

propaganda laws in the Canadian Human Rights Act that apply to the telephone also

apply to the Internet.145 He said the Internet, as a communications medium, is similar to

the telephone: “When and if we do receive complaints we intend to treat them in exactly

the same way as complaints regarding hate on the telephone.”146 Evans also ruled that the Human Rights Tribunal has the authority to determine the “technical aspects” of the

Internet including if speech laws that were crafted prior to the Internet now apply to online communications.147

Another actor in the Canadian legal system is the Canadian Radio-television and

Telecommunication Commission (CRTC). It has stated that, as an independent governmental agency, it does not regulate content on the Internet.148 The CRTC is an

independent agency responsible for regulating the country’s broadcasting and

143 Ernst Zündel v. Canada, [1999] 4 F.C. 289. In a Lexis Nexus search of Canadian lower federal courts to see how they have defined the Internet as a communications platform in terms of speech limitations, the terms, “Internet w/p pornography,” “Internet w/p speech,” and “Internet w/p copyright” yielded this one result.

144 In 2002 Zundel’s anti-Semitic Web site was ordered taken down from the Internet by the Canadian Human Rights Tribunal. See Press Release, Catherine Barratt, Canadian Human Rights Commission, Ernst Zundel's Internet Hate Site Unlawful: Tribunal (Jan. 18, 2002) available at: http://www.chrc- ccdp.ca/media_room/news_releases-en.asp?id=232.

145 Supra note 143 at 299. In denying Zündel’s request, the Judge ruled that the Tribunal has the authority to review hate-based Web sites in order to determine if they violate the country’s human rights laws.

146 Id. at 300. Chapter 4 will discuss how hate speech on the telephone is treated.

147 Id. at 291.

148 See the Canadian Radio-television and Telecommunication Commission for its public policy guidelines for access to the Internet at: http://www.crtc.gc.ca/eng/INFO_SHT/t1003.htm#off.

70 telecommunications industry.149 The CRTC said that existing Canadian laws – including

the country’s Criminal Code and the Human Rights Act – provide guidance for limiting

any content on the Internet.150

Parliament Acts to Restrict Internet Hate Propaganda

A ban on Internet-based hate did not become law until 2001 when it was added to the Canadian Human Rights Act.151 The law was based on a statute in the Canadian

Criminal Code that criminalized using telephone-based communication to expose a person or group of people to hatred or contempt based on several factors including race, religion, and sexual orientation.152 In passing the law, Parliament was concerned about hate-based Web sites that target children.153 When the law passed, there were over 2,500

Canadian-based hate Web sites.154 The government was eager to protect Canada as a

149 Id. at: http://www.crtc.gc.ca/eng/welcome.htm.

150 Id. The laws that the CRTC refers to are: Offenses Against the Person and Reputation, R.S.C. 1985, ch. C-46,§319 (2004), Offenses Against the Person and Reputation, R.S.C. 1985, ch. C-46,§318 (2004), and Canadian Human Rights Act, R.S.C. 1985, ch. H-6, §13 (2004). Chapter 4 will discuss these laws in detail.

151 Canadian Human Rights Act, R.S.C. 1985, ch. H-6, §13(2) (2004). Section 13(2) of the Canada Human Rights Act states that Section 13(1) applies “in respect of a matter that is communicated by means of a computer or a group of interconnected or related computers, including the Internet, or any similar means of communication, but does not apply in respect of a matter that is communicated in whole or in part by means of the facilities of a broadcasting undertaking.”

152 Canadian Human Rights Act, R.S.C. 1985, ch. H-6, §13 (1) (2004). Section 13(1) of the Human Rights Act states: “It is discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those person are identifiable on the basis of a prohibited ground of discrimination.” Section 3(1) of the law states that no Canadian can be discriminated against based on race, nation or ethnic origin, color, religions, age, sex, sexual orientation, marital status, family status, disability, or conviction for which they may have received a pardon.

153 House of Commons. Proceedings, Volume 5, No. 1245, 37th Parliament, 1st Session (Friday, February 2, 2001).

154 Id.

71 multicultural society by fighting xenophobia and discrimination.155 The House of

Commons approved the bill by a wide multi-partisan majority.156

In 1995 members of Parliament first introduced the bill that would restrict hate propaganda on the Internet. Members were primarily concerned about protecting children from online hate propaganda. A multi-partisan coalition pushed to extend the

Human Rights Act’s provision of banning telephone-based hate to the Internet.157 The final bill that was passed in 2001 was introduced by Liberal Member of the House of

Commons Irwin Cotler. He stated “Television, radio and now the Internet, all have

155 Id.

156 The vote was 189 to 47 on November 28, 2001. Parliament of Canada voting record available at: http://www.parl.gc.ca./LEGISINFO/index.asp?Lang=E&Chamber=N&StartList=A&EndList=Z&Session= 9&Type=0&Scope=I&query=2981&List=stat.

157 Parliament of Canada debates available at: http://www.parl.gc.ca/search/Advanced.asp?

The following is a sample of the debate in the House of Commons from May 10, 1995 where members urged the House to extend the country’s anti-discrimination Human Rights Act to Internet-based hate speech:

Beth Phinney (Liberal Party): “Although some work is required to find offensive material, pornography and hate propaganda often ends up in the hands of impressionable children. As I am sure many members are aware, children and young adults are often far more proficient with computers than their parents are…There have been cases of white supremacists using computer bulletin boards to attempt to recruit new members especially among students and other young adults…”

Osvaldo Nunez (Bloc Québécois): “We must fight hateful, racist, and discriminatory remarks expressed in all sorts of ways, including those appearing on the Internet…All democratic societies must combat racism, discrimination, and hatred. On the other hand, they must also protect freedom of speech and expression and every person’s right to respect, dignity, and equality.”

Chuck Strahl (Reform Party): “Hate literature and hate propaganda on the Internet are like pollution washing up on seashore…More and more hate literature is washing up on our personal shore, our homes, and businesses each day.”

The debate transcripts did not indicate any opposition to extending the Human Rights Act to Internet-based communication.

incredible power to move people to act. As with most technologies, there is power for

good and potential for evil.”158

Conclusion

In Canada and the United States, anyone with access to the Internet through a

modem can use dial-up or broadband to seek out information or communicate through a

range of choices such as e-mail, chat rooms, and instant messaging.159 The Internet is a communications tool now used by millions of people around the world to communicate.160 Rather than an individual dropping a letter in the mail or calling someone by telephone, the Internet is a tool that allows two people or groups of

individuals to communicate either in a time-delay through an e-mail message or instantly

by instant messaging.

With the broad uses of the Internet such as e-mail, Web sites, and blogging, the

U.S. Supreme Court in Reno recognized the Internet as a communications technology that should be regulated as little as possible. It has noted how cyberspace differs from broadcasting and is more like a telephone because the user seeks out information.161 The

Court stated that with broadcasting the user is exposed to content. While the Court has

158 House of Commons. Proceedings, Volume 5, No. 1245, 37th Parliament, 1st Session (Friday, February 2, 2001). In thanking the House of Commons for passing the legislation, Cotler stated that “What is so necessary today is a culture of human rights as an antidote to a culture of hate, a culture of respect as an antidote to a culture of contempt, including in particular, respect for the inherent dignity of the human person, respect for the equal dignity of all persons, respect for the right of minorities to protection against group vilifying speech, respect for our international treaty obligations which remove incitement to hatred from the ambit of protected speech, recognition of the substantial harm caused to the targets of hate speech and hate crimes, be they individuals or groups, and respect for the underlying values of a free and democratic society.”

159 COMER, supra note 9 at 113-117.

160 RENO, 521 U.S. at 870.

161 Id. at 869.

recognized there may be indecent content on the Internet geared toward adults and

dangerous to children, it stated in Reno that the Internet deserves as much First

Amendment protection as possible in order to enhance the “free exchange of ideas.”162

The Court reiterated this in its 2004 Ashcroft decision.163

A couple of lower federal appeals courts have restricted the Internet’s First

Amendment freedoms in cases involving threats made against individuals. The 2002

Ninth Circuit of the Court of Appeals decision involving the “Nuremburg Files” Web site

showed that threats placed on a Web site are illegal.164 Another federal appeals court ruling criminalized using e-mail for threats.165

In contrast to how the U.S. Supreme Court has extended a large amount of First

Amendment protection to the Internet, the Canadian Supreme Court has so far been silent

on the constitutional speech implications of the Internet. Based on one case, the Court

has been more focused on how users gain access to the Internet.166 The only ruling on how the Canadian Charter of Rights impacts the Internet comes from a federal trial court.

In the Zundel case,167 the trial court did recognize the Internet as a technology and medium similar to a telephone for enforcing Canada’s hate speech laws. The court simply applied already existing hate speech laws to the Internet. The Canadian federal courts and the CRTC have stated that any broad Internet speech limits are derived from

162 Id. at 885.

163 ASHCROFT, 542 U.S. 656.

164 Planned Parenthood of the Columbia/Willamette, Inc. v. ACLA, 290 F. 3d 1058 (9th Cir. 2002 en banc).

165 U.S. v. Newell, 309 F. 3d 396 (6th Cir. 2002).

166 CANADIAN ASSOCIATION OF INTERNET PROVIDERS, [2004] S.C.R at 438.

167 Ernst Zundel v. Canada, [1999] 4 F.C. 289.

74 already established laws passed by the Parliament and enforced by the Human Rights

Commission.

CHAPTER 3 UNITED STATES LEGAL APPROACH TO RESTRICTING INTERNET SPEECH

The American approach to free speech stems primarily from the First Amendment

of the United States Constitution. It states “Congress shall make no law abridging the

freedom of speech, or of the press.”1 At times the states and local governments have

attempted to pass laws that prohibit hate speech, symbols, and threats that target one

person or a group of individuals based on common characteristics such as race, gender,

and religion.2 The judiciary, led by the Supreme Court, has decided whether these laws

violate the First Amendment’s guarantee of freedom of speech.

Today, there are no federal laws that target hate speech on the Internet, but there

is a federal law that prohibits using the Internet to threaten an individual.3 One federal

appeals court has used the precedents set by the Supreme Court to determine when online

hate speech loses its First Amendment protection. Prior to 1996, there were no federal

statutes that criminalized online threats. Instead, prosecutors used existing laws that

pertained to telephone and U.S. Postal Mail communication and applied them to Internet

1 U.S. CONST. amen. I.

2 See e.g., St. Paul Bias-Motivated Crime Ordinance, St. Paul, Minnesota, Legis. Code §292.02 (1990) (overturned by the U.S. Supreme Court in R.A.V. v. St. Paul, 505 U.S. 377 (1992)) and Va. Code Ann. § 18.2-423 (1996) (overturned by the U.S. Supreme Court in Virginia v. Black, 538 U.S. 343 (2003)).

3 47 USCS§223(a)(C)-(E) (2005) Title 47 Telegraphs, Telephones, and Radiotelegraphs – Chapter 5 Wire or Radio Communication Common Carriers, Common Carrier Regulation.

75 76

communications.4 In 1996 Congress passed into law the Telecommunications Act that criminalized threatening and harassing individuals on the Internet, and the courts are now applying the law to specific cases.5

This chapter will begin by briefly reviewing the Supreme Court’s historical

approach in judging at what point speech is not protected by the Constitution. This starts

with what is known as the Court’s “clear and present danger” test. The chapter will then

analyze seminal hate speech decisions by the Court and how it decided at what point hate

speech loses its First Amendment protection. The First Amendment speech rights of

college and high school students will then be examined. The chapter will then review the

“Nuremburg Files” courts case where the Ninth Circuit of the U.S. Court of Appeals

applied the Brandenburg test to the Internet-based hate speech. It also examines steps

taken by the Congress to protect victims from online threats and harassment and the

application of the laws by several appeals courts.

Clear and Present Danger

In the years following World War One, Congress passed laws intended to protect

the country from Communists and anarchists. The Espionage Act of 19176 and the

Sedition Act of 19187 were designed to prevent Americans from speaking out against the

war and associating with organizations that opposed it. The Congress and the Supreme

4 See 18 U.S.C.§ 875 (c) (2003) Title 18 Crimes, Extortions, and Threats Title 47 Telegraphs, Telephones, and Radiotelegraphs – Chapter 5 Wire or Radio Communication Common Carriers, Common Carrier Regulation

5 See 47 USCS§223(a)(C)-(E) (2005) and 47 USCS§230(c)(2)(2005) Title 47 Telegraphs, Telephones, and Radiotelegraphs – Chapter 5 Wire or Radio Communication Common Carriers, Common Carrier Regulation.

6 Espionage Act of 1917, ch. 30, §3, 40 Stat. 217 (1917).

7 Sedition Act of 1918, ch. 75, §1, 40 Stat. 553 (1918).

Court worried about speech that would lead to a breach of the peace and the overthrow of

the government. They were not preoccupied with ethnic or race – related speech. In

several landmark cases from this era, the Court ruled that expression could be punished

when words may bring about “substantive evils”8 and that Congress had the right to prevent the danger. Speech could be prohibited based on a clear and present danger.

In Schenck v. U.S.9 the Court upheld an Espionage Act conviction against Charles

Schenck for distributing leaflets opposing the military draft. Few military draftees

actually received the leaflets, and those who did testified that it did not influence their

decision to join the military.10 Even though the U.S. Postal Inspector impounded 610 leaflets, authorities never knew how many total leaflets were mailed.11 The fact that so

few of the leaflets landed in the hands of military inductees did not matter to the Court’s

majority. It ruled that a person could still be found guilty of conspiracy even when that

conspiracy failed.12 Writing for the majority, Justice Oliver Wendell Holmes stated that

in non-war time, Schenck would have had the constitutional right to distribute his

opinions about the draft, but the “character of every act depends upon the circumstances

in which it is done.”13

8 249 U.S. 47 (1919).

9 Id.

10 Richard Pollenberg, FIGHTING FAITHS: THE ABRAMS CASE, THE SUPREME COURT, AND FREE SPEECH 215 (Viking Penguin, Inc. 1987).

11 Id.

12 Id.

13 Schenck, 249 U.S. 47 at 52.

In this case the circumstance was the war. According to the Court, Schenck’s

words were of such a nature as to present a “clear and present danger,” and that they

would have brought about “substantive evils” to the country that Congress had the right

to protect the government.14 It worried that an “evil” could have arisen from the leaflet that described conscription as “despotism in its worst form and a monstrous wrong against humanity in the interest of Wall Street’s chosen few.”15

Later that year, in Abrams v. U.S.,16 the Court dealt with a case that centered on

Jacob Abrams’ attempts to interfere with U.S. foreign policy. The government indicted him with four counts of violating the 1918 Sedition law. Each count revolved around resisting the American war effort. The first three indictments were based on conspiring during wartime to unlawfully print, write, and publish literature against the U.S. government in an attempt to bring contempt and scorn to it as well as lead the resistance against the U.S. war effort.17 The government’s fourth charge indicted Abrams for publishing leaflets that attempted to incite Americans to stop producing war materials such as ammunition.18 The Court found Abrams guilty on all four counts.

Unlike the Schenck case, Abrams’ leaflets were directed at the Wilson administration’s policy towards Russia not the war effort in Germany. The U.S. had sent troops to Russia to fight against the Bolshevik revolution. In the Court’s decision, Justice

John Clarke did not distinguish between Abrams’ focus on Russia and the war in

14 Id.

15 Id. at 51.

16 250 U.S. 616 (1919).

17 Id. at 617.

18 Id.

Germany citing Abrams’ writings as having an indirect interference with the war effort

against Germany.19

Justice Clarke criticized the words used by Abrams and his associates in trying to deter the war effort. The Justices said the danger in Abrams’ writings was that they could have fomented a rebellion in the country with comments such as, “Know you lovers of freedom that in order to save the Russian Revolution, we must keep the armies of the allied countries busy at home.”20 The Court claimed these were explicit threats of internal armed rebellion that had to be stopped. In the Court’s eyes, Abrams’ overall goal was a general resistance to the war that included attempting to foment factory strikes to stop the production of war materials and interfering with the government’s foreign policy.21

Seven years later in 1925 in Gitlow v. New York,22 the Court cited its bad-

tendency test. Under this test, expression could be punished if it presented a “tendency”

to cause evil.23 The defendant, Benjamin Gitlow, was found guilty of publishing a

manifesto for the Socialist Party in New York. In Gitlow, the Court ruled that the First

Amendment does not protect speech that attempts to subvert government and disturbs the

19 Id.

20 Id. at 623.

21 Id. at 624.

22 268 U.S. 652 (1925).

23 Id. at 666.

public peace.24 The Court also deferred to the legislature to determine if a law is necessary to protect society from a “present and imminent danger.”25

Twenty-six years after the Gitlow decision, the Court again reaffirmed the clear

and present danger standard for criminalizing dangerous speech. In 1951 in Dennis v.

U.S.26 the Court upheld the 1948 conviction of Eugene Dennis for knowingly and

willingly conspiring to organize the Communist Party for advocating the overthrow and

destruction of the U.S. government. Dennis had been convicted of violating the 1940

Smith Act, which made it illegal to print, publish, circulate, advocate, or teach the

overthrow of the U.S. government.27 In Dennis, the Court stated that the government had

adequately proven that Dennis and his associates organized a national Communist Party

with the goal of destroying the government in violation of the Smith Act.

The Court stated that advocacy to overthrow the government is a punishable

crime.28 Chief Justice Frederick Vinson stated that the government has the authority to

limit speech when the nation’s security is at stake.29 In the decision the Chief Justice

referred to the court’s earlier Schenck and Abrams decisions as the guide for determining

when speech can be limited.30

24 Id. at 667.

25 Id. at 669.

26 341 U.S. 494 (1951).

27 Alien Registration Act of 1940, 54 Stat. 670-671 (1940). The law stated, “whoever organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence; or becomes or is a member of, or affiliates with any such society, group, or assembly of persons.”

28 Id. at 502.

29 Id. at 505.

30 Id.

Six years later in Yates v. U.S.31 the Court backed away from outlawing advocacy to overthrow the government. Fourteen defendants, who were leaders of the Communist

Party in California, were arrested in 1951 for conspiring to advocate and teach the overthrow of the U.S. government by force and violence. The Court acquitted five of the defendants and remanded to the District Court a new trial for the ten other defendants.

In its decision the Court again reviewed the Smith Act. In Yates, the Court ruled that the Smith Act does not prohibit advocacy and teaching the violent overthrow of the government as an abstract principle.32 By focusing on the terms “organizing” and

“advocacy,” the Court more narrowly interpreted this part of the Smith Act in Yates than it did in Dennis. Unlike the earlier Abrams, Schenck, and Gitlow cases, the Court in

Yates backed away from punishing speech that simply advocates overthrowing the government without any specific plan of action.

The Supreme Court’s Decisions on Hate Speech

Different from the Court’s clear and present danger test for speech that was aimed at securing the safety of the federal government, for more than 60 years, since 1942, the

Court has also occasionally examined the constitutionality of state statutes, local ordinances, and school speech codes that attempt to ban hate speech. The Court has drawn the lines between speech that is legal and speech that lacks any First Amendment protection. It has repeatedly ruled that one form of speech such as fighting words is outside the zone of First Amendment protection because it has “slight social value.”33 In

31 354 U.S. 298 (1957).

32 Id. at 318.

33 See Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).

several other cases, the Court has ruled that speech, no matter how offensive, is often

legal until it leads to incitement or a breach of the peace.34 The Court has not ruled on a

hate speech case involving the Internet, but its precedents have been used by a lower

federal appeals court in deciding whether hate speech on the World Wide Web is legal.35

Chaplinsky v. New Hampshire

In 1942 the Supreme Court decided the first major case that involved the issue of

fighting words and the potential for violence that could result from them. In Chaplinsky

v. New Hampshire,36 the Court unanimously upheld a New Hampshire statute that banned the use of “fighting words” that could cause a breach of the peace. Chaplinsky, who was a member of the Jehovah’s Witnesses, had called the town Marshall a “damned fascist” and “damned racketeer.”37 The Court stated these words would likely provoke a person to respond with violence.38

Chaplinsky had been handing out literature associated with his religious belief,

and he denounced all other religions as a “racket.”39 Several Rochester, New Hampshire residents complained to the town Marshall about Chaplinsky’s actions, but he defended

Chaplinsky’s right to free speech. When a disturbance later erupted, the Marshall warned

34 See e.g., Brandenburg v. Ohio, 395 U.S. 444 (1969).

35 See Planned Parenthood of the Columbia/Willamette, Inc. v. ACLA, 290 F. 3d 1058 (9th Cir. 2002) (en banc).

36 Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).

37 Id. at 570.

38 Id. at 573.

39 Id. at 570.

Chaplinsky he was in danger, but Chaplinsky ignored his warning and then called him the

offending names.40

The Court stated in Chaplinsky there are certain well-defined and narrowly limited areas of speech that could be banned without violating the First Amendment.41 In its opinion, the Court noted that the “right of free speech is not absolute at all times and under all circumstances.”42 Speech can be restrained if it is lewd, obscene, profane,

libelous, and involves fighting words.43 The Court ruled that these categories of speech have “slight social value.”44 The Court indicated these “fighting words” tend to incite

violence and cause injury:

It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.45

The Court said ordinary adults would have to judge whether certain words could cause

violence. It agreed with the New Hampshire Supreme Court that the state’s purpose in

enacting the law was to preserve the public peace by criminalizing words that can lead to

an act of violence.46 The Court ruled that the statute was narrowly drawn and limited to defining and punishing specific conduct that lies “within the domain of state power.”47 A

40 Id.

41 Id. at 571.

42 Id.

43 Id. at 573.

44 Id.

45 Id.

46 Id.

47 Id.

state can punish verbal acts as long as it does not “unduly impair” free expression.48 In

writing the Court’s opinion, Justice Frank Murphy stated that New Hampshire’s law that

banned “fighting words” was not vague because it was written to punish specific

conduct.49

While the terms, “damned Fascist” and “damned racketeer,” may be tame by

today’s standards, in the 1940s, as shown in the Court’s Chaplinsky ruling, these types of

terms could lead to violence as the Court feared could happen.50 The important aspect of the Court’s ruling is that it laid a foundation for its next hate speech case ten years later in

1952.

Beauharnais v. Illinois

After Chaplinsky the Court decided its next major hate speech case in 1952.51 In

Beauharnais v. Illinois the Court upheld the constitutionality of an Illinois statute that prohibited the selling, manufacturing, publishing, advertising, or exhibition of any lithograph, picture, or theatrical play that criticized anyone based on race, color, creed, or religion.52 The state law used the term “group libel” to refer to the speech aimed at a group of people. The plaintiff, Joseph Beauharnais, had been convicted of violating the

Illinois law in 1950 when he distributed lithographs and literature that called for a halt to

48 Id. at 574.

49 Id.

50 Id.

51 Beauharnais v. Illinois, 343 U.S. 250 (1952).

52 Id. at 250.

the racial integration of Chicago neighborhoods.53 Other writings questioned the virtue of African-Americans.54

The Court, in a 5-4 vote, ruled that libelous utterances, speech aimed at a distinct group of people (hate speech by contemporary standards), are not protected speech when they could cause a breach of peace.55 Reaffirming its Chaplinsky decision, the Court noted that libelous speech was of “slight social value.”56 Maintaining the general peace was a top priority and libelous speech ran counter to this goal.

In Beauharnais, the Court also ruled that an individual, not just a group of people,

could be a target of libel through “public hatred, contempt, or financial injury.”57 The

Court stated it was concerned for the physical well being of both groups of people and the individual who may be the target of threats.58 If hate induced libel is targeted at a defined group and may disrupt the peace, the Court ruled that the speech could be outlawed.59

For seventeen years the Court did not review another major case where hate-based libel or hate speech might lead to a breach of the peace or incitement.

Ashton v. Kentucky

Fourteen years after Beauharnais, the Court reversed its position upholding statutes that criminalized libel. In Ashton v. Kentucky60 the Court unanimously

53 Id. at 252.

54 Id.

55 Id. at 253.

56 Id. at 257.

57 Id.

58 Id. at 258.

59 Id.

overturned the conviction of Steve Ashton for violating Kentucky’s criminal libel law.

Under the law, Kentucky officials could punish conduct that was designed to create

public disturbances.61 Ashton had been convicted of printing a pamphlet that attacked the

Hazard, Kentucky chief of police, the local sheriff, and the co-owner of the local

newspaper for their failure to support local striking miners.62 State officials feared his libelous writings would lead to violence.

The Court unanimously overturned the Kentucky law, calling it vague.63 It was

not drawn to narrowly prevent a breach of peace.64 Writing for the Court, Justice

William Douglas stated that vaguely worded laws that punish conduct that could disturb the peace, allow authorities to determine what the punishable conduct is without any legal guidelines or standards to use.65 A specific individual or group could have the power to determine what the “boiling point” of an incident is without specific guidelines.66 In

Ashton Douglas noted that Ashton’s writings were controversial in nature, designed to spark debate. The Justice said free speech is often “provocative and challenging” and that did not automatically mean the controversial speech would lead to a breach of peace.67 The Court’s decision in Ashton appeared to contradict its Beauharnais decision.

60 384 U.S. 195 (1966).

61 Id. at 198.

62 Id. at 196.

63 Id. at 200.

64 Id. at 201.

65 Id. at 200.

66 Id.

67 Id. at 199.

In Ashton it had overturned a law that punished libel that could lead to disturbances of the

peace.

Brandenburg v. Ohio

In 1969, the Court decided one of its landmark decisions on incitement and hate

speech. In Brandenburg v. Ohio,68 an Ohio Klu Klux Klan (KKK) leader had been convicted under an Ohio state statute that punished advocating violence as a means of political change.69 Brandenburg, the KKK leader, had contacted and invited a television

reporter to attend a Klan rally in Hamilton, County Ohio.70 Portions of the rally were taped and broadcast on television.71 The taped scenes included 12 hooded figures

gathered around a large wooden cross. Many of the Klansmen uttered phrases derogatory

of African Americans and Jews.72 At the Klan rally Brandenburg was quoted as saying:

We’re not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken.73

In a per curiam vote, the Court unanimously overturned the law, stating that the

First Amendment does not permit a state to forbid advocacy of the use of force except

where the advocacy is directed to imminent incitement.74 The teaching of resorting to

68 Brandenburg v. Ohio, 395 U.S. 444 (1969).

69 Id. at 445. The Ohio Criminal Syndicalism statute criminalized “advocat[ing]…the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform.” It also banned the “voluntarily assembl[ing] with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.”

70 Id. at 446.

71 Id.

72 Id.

73 Id. at 446.

74 Id. at 447.

violence does not equal actually preparing a group for violent action.75 The Court stated

any advocacy speech statute must distinguish between the concept of advocacy and

actually preparing for violence.76 If it fails to draw this distinction, any statute would then violate the First Amendment:

“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.”77

The court emphasized that an abstract teaching of a “resort to violence” is not the same as

actually preparing a group for violent action.78

What is now known as the Brandenburg test is the basis for determining the

constitutionality of speech that advocates violence. In the first part of the test, advocacy

(words that inform an audience about the speaker’s hopes and beliefs and might include the “mere abstract teaching” of political reform) is legal.79 Brandenburg had used phrases to tell an audience of his political beliefs that Caucasians were suppressed.80

The second part of the Brandenburg test is whether words direct or lead to incitement. This is speech that goes beyond mere advocacy. If the defendant is only

75 Id.

76 Id. at 448. The Court’s decision differs from its early Twentieth Century “Clear and Present Danger” cases in that in Brandenburg the Court states speech loses its protection at the point violence is imminent. In Schenck, Abrams, and Gitlow, the Court was worried about speech that could lead to violence, i.e. a clear and present danger. In all three cases, the Court ruled that Congress had the authority to pass laws that limited speech that had the potential for violence in order to keep the country safe from Communists and anarchists.

77 Id. at 447.

78 Id.

79 Id.

80 Id. at 433.

aware that his words may incite illegal action but does not have the incitement in mind as his purpose, his or her speech is protected.81 If the speaker knows his or her words will

likely trigger an illegal action, then the speech is not protected. 82 In this case

Brandenburg spoke of an upcoming, organized July 4th march in Washington, D.C. but never stated that the march should turn violent.83

The third part of the test is whether the words lead to an imminent act of violence.

This is at the heart of Brandenburg. It means a very short time before the violence

occurs.84 The violence must occur nearly immediately after the actual spoken words or at

the speech’s conclusion, meaning “right now.” Brandenburg’s speech never made it this

far; violence did not occur.85

The final part of the Brandenburg test is the illegal action. When the illegal

action takes place, there are no free speech controversies.86 If speech leads to violence,

then it is the direct result from the third part of the test, imminence. In Brandenburg the

Court ruled that if violence had resulted from the Klan meeting, the speech would have

been illegal, but there wasn’t a breach of peace from the rally.

Justice Hugo Black, in his concurring opinion in Brandenburg, stated that the

government has no power to curb the “belief and conscience” of any individual based on

81 Id.

82 Id. at 449.

83 Id.

84 Id. at 434.

85 This is where the Brandenburg test differs from the Court’s earlier Clear and Present Danger rulings. In this case, the Court ruled that speech loses its First Amendment protection if violence is imminent. In Schenck, Abrams, and Gitlow, the Court’s rulings did not have imminent violence in mind, rather prohibiting speech that posed a clear and present danger to a peaceful environment.

86 Id.

his or her convictions.87 That power can only be used in the rare instances that violence

is imminent.

R.A.V. v. St. Paul

Unlike the 1969 Brandenburg case on incitement to violence, the Court’s 1992

decision in R.A.V. v. St. Paul88 involved signs and symbols advocating hate speech and incitement. The Court overturned a St. Paul, Minnesota, statute that banned the display of graffiti, symbols, and objects that arouse anger in others based on race, color, creed, religion, or gender.89 The constitutionality of the local ordinance was first tested in June

1990 when a group of teenagers had assembled a cross by taping together the legs from a

broken chair. The teenagers then burned the cross inside the fenced yard of a black

family.90 The perpetrator was charged under the St. Paul Bias-Motivated Crime

Ordinance.91

The Court approached R.A.V. differently than it did in Beauharnais in that it

unanimously struck down the Minnesota ordinance because it prohibited speech solely on

the basis of the subjects the speech addressed.92 In writing the Court’s unanimous

87 Id. at 457.

88 505 U.S. 377 (1992).

89 Id. at 379. The St. Paul Bias-Motivated Crime Ordinance stated: “Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.”

90 Id.

91 Id.

92 Id. at 381. In Beauharnais the Court upheld the Illinois state law that prohibited the selling, manufacturing, publishing, advertising, or exhibition of any lithograph, picture, or theatrical play that criticized anyone based on race, color, creed, or religion.

opinion, Justice Antonin Scalia stated the First Amendment did not permit the

government to impose special prohibitions, content-based restrictions, on speakers who

express views on disfavored subjects.93 More specifically, the ordinance’s First

Amendment weakness was that it would permit displays containing abusive words or symbols if they were on subjects other than race, color, creed, religion or gender. While offensive symbols on these subjects would be illegal, offensive symbols or words that arouse anger about a person’s occupation, political affiliation, or sexual orientation would be legal.94 For the Court, this ordinance amounted to viewpoint discrimination.

Scalia wrote that the St. Paul statute did not single out a generic offensive mode of expression such as threats, but instead, prohibited fighting words geared toward racial, gender, or religious intolerance while leaving out other categories that would permit fighting words.95 In R.A.V., if an ordinance such as this were allowed to stand, the Court

warned: “[The] regulation of ‘fighting words,’ like the regulation of noisy speech, may

address some offensive instances and leave other, equally offensive, instances alone.”96

Essentially, the Court overturned the statute because certain categories of offensive fighting words were allowed while others were branded illegal. In the Court’s opinion, content-based restrictions are “presumptively invalid.”97 The government may not

regulate speech based on its hostility or favoritism towards the message.98

93 Id.

94 Id. at 391.

95 Id. at 394.

96 Id. at 390.

97 Id. at 383.

98 Id.

In his concurring opinion, Justice Byron White stated any prohibition on fighting

words is not simply a time, place, or manner restriction, but a ban on categories of speech

that portrays a thematic message even if the public does not like the message.99 The notion that certain expressions may cause hurt feelings or resentment does not mean it can be stripped of its First Amendment protection.100

Virginia v. Black

Eleven years after its R.A.V. ruling, the Court tackled another statute involving cross burning as a form of hate speech. The most recent ruling by the Court involving hate speech and incitement is its 2003 case, Virginia v. Black. In an eight to one vote, the

Court outlawed the burning of a cross when it is burned to intimidate people.101

Violation of the law came with jail time and a financial penalty. The Court said it is legal

to ban conduct such as the burning of a cross but not the expression, the political or

sociological ideas associated with the act.

The Court struck down a portion of a 1996 Virginia statute that declared that all

burning of crosses is automatically a form of intimidation against a victim.102 The Court also held, as unconstitutional, the part of the statute that interpreted all cross burnings as prima facie evidence of intent to intimidate.103 In writing the Court’s opinion, O’Connor

99 Id. at 409.

100 Id. at 414.

101 Virginia v. Black, 538 U.S. 343 (2003).

102 Id. at 365. The Virginia statute stated that “It shall be unlawful for any person or persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public place…Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons.”

103 Id. at 364.

stated that a person may legally burn a cross as “core” political speech if the physical act

does not include intimidating an individual.104 She wrote that the statute’s prima facie evidence that all cross burnings are meant to intimidate blurred the separation between burning for intimidation and burning a cross as a political message.105

O’Connor stated that a prohibition on “true threats” protects individuals from the

fear of violence and the ensuing disruption to their lives.106 Her opinion defined “true threats” as “those statements where the speaker means to communicate a serious expression of intent to commit an act of unlawful violence to a particular individual or group of individuals.”107 O’Connor posited that intimidation is a threat when a speaker

intends to place a person or group of people in fear of bodily harm or death.108 She said burning a cross for intimidation is a very powerful message to the intended victim because:

the burning cross often serves as a message of intimidation, designed to inspire in the victim a fear of bodily harm. Moreover, the history of violence associated with the Klan shows that the possibility of injury or death is not just hypothetical.109

104 Id. at 365.

105 Id.

106 Id. at 360.

107 Id. at 359.

108 Id.

109 Id. at 357.

In the case of the Klu Klux Klan, O’Connor wrote that the burning cross is often directed

at a particular individual and meant to coerce the victim to comply with the Klan’s

wishes.110

Justice O’Connor stated that the speaker does not need to actually carry out the

threat for the speech to lack constitutional protection. Rather, a prohibition on true

threats “protects individuals from the fear of violence” and “from the disruption that fear

engenders.”111

Campus Speech Codes

While the Court has examined whether local and state hate speech statutes and ordinances deserve First Amendment protection, the judiciary has also reviewed the constitutionality of campus speech codes. Campus speech codes at secondary schools, colleges, and universities attempt to protect students from insulting and harassing speech that derides part of an individual’s character such as race, gender, religion, ethnicity, or sexual orientation. Several lower federal court decisions overturning attempts by schools and universities to impose speech codes stem from the Supreme Court’s ruling on the

First Amendment speech rights of students.

In Tinker v. Des Moines Independent Community School District,112 the Court ruled that students had a right to wear black armbands to protest the Vietnam War as a symbol of free speech as long as their actions did not disrupt the classroom or the school

110 Id.

111 Id. at 360.

112 393 U.S. 503 (1969).

campus at large.113 Writing for the Court, Justice Abe Fortas stated that neither “students

nor teachers shed their constitutional rights to freedom of speech or expression at the

schoolhouse gate.”114 Fortas explained that a student’s speech rights go beyond

classroom activity and extend to the cafeteria, the “playing field,” and other areas of

school property.115 Students may engage in political speech as long as they do not interfere with school operations and the rights of other students, faculty, and administrators.116

The Court, along with several lower appeals courts, have referred to the Tinker

case in several speech codes cases directly related to hate speech and threats. In Healy v.

James,117 the Court in 1972 ruled that Central Connecticut State College (CCSC) could not deny official recognition to a student political organization if it is not linked to the national organization that espouses violence. Students at CCSC wanted to form a local chapter of Students for a Democratic Society (SDS), a national organization that promoted on-campus violence as a means of political change. The students at CCSC stated they would not be affiliated with the national chapter, but the college’s President

113 Id. at 514. The Court stated that the school system installed the ban on black arm bans because it wanted to avoid the controversy based on the nation’s growing opposition to the Vietnam War. The Court pointed out that the school never prohibited the wearing of all symbols of political controversy or significance, just the black armbands. It ruled that the school system did not have a constitutionally valid reason to regulate the students’ speech.

114 Id. at 506.

115 Id. at 513.

116 Id.

117 408 U.S. 169 (1972).

rejected recognition stating the organization’s philosophy was not in accordance with the

college’s dedication to academic freedom.118

The Court overturned the President’s ruling, stating that the First Amendment protects an organization’s right to association.119 It ruled that it was the burden of the college’s President to show credible evidence that the local SDS would have advocated disruption on campus.120 The college may not restrict speech or association simply because it finds the views expressed to be “abhorrent.”121 Citing the Tinker case, the

Court stated that the only time association activities can be banned is when they “infringe

reasonable campus rules, interrupt classes, or substantially interfere with the opportunity

of other students to obtain an education.”122 The Court stated advocacy is protected by the First Amendment while illegal action is not.123 As long as the SDS limited its speech

to advocacy, the college President could not bar it from recognition. The Court also

ruled that a college community could deny or withdraw recognition and support to a

group if it violates campus rules.124

The federal district and appeals courts have relied on the Supreme Court when they have reviewed the constitutionality of campus codes. In John Doe v. University of

118 Id. at 175.

119 Id. at 181.

120 Id. at 184.

121 Id. at 187.

122 Id. at 189.

123 Id. at 191.

124 Id. at 194.

Michigan,125 a district court overturned a speech code at the University of Michigan. The

code prohibited any verbal or physical behavior that “stigmatizes” an individual based on

several characteristics including race, religion, and sex.126 In 1989 John Doe, a graduate

student in psychology, sued the University of Michigan alleging its campus speech codes

“chilled” his right to discuss controversial gender and race related theories in his teaching

labs.127 Doe feared his students would use the university’s speech code policy against him if he openly discussed gender and racial biopsychological theories.128 These theories

125 721 F. Supp. 852 (1989).

126 Id. at 858. The University of Michigan’s Policy on Discrimination and Discriminatory Harassment of Students in the University Environment attempted to curb what the University’s Board of Regents viewed as an increase in racial intolerance and harassment on campus. The part of the Policy the appeals court reviewed stated:

“1. Any behavior, verbal or physical, that stigmatizes and individual on the basis of race, ethnicity, religion, sex, sexual orientation, creed, national origin, ancestry, age, marital status, handicap or Vietnam-era veteran status, and that

a. Involves an express or implied threat to an individual’s academic efforts, employment, participation in University sponsored extra-curricular activities or personal safety; or

b. Has the purpose or reasonably foreseeable effect of interfering with an individual’s academic efforts, employment, participation in University sponsored extra-curricular activities or personal safety; or….

2. Sexual advances, requests for sexual favors, and verbal or physical conduct that stigmatizes or victimizes an individual on the basis of sex or sexual orientation where such behavior:

a. Involves an express or implied threat to an individual’s academic efforts, employment, participation in University sponsored extra-curricular activities or personal safety; or

c. Creates an intimidating, hostile, or demeaning environment for educational pursuits, employment or participation in University sponsored extra-curricular activities.”

127 Id.

128 Id.

included the interdisciplinary study of the biological bases for individual differences in

personality traits and mental abilities.129

A year earlier in 1988 the University of Michigan had disciplined three graduate

students under its policy.130 University officials had investigated these complaints against the graduate students and found that they made negative racial and sexual orientation comments.131 In all three cases, District Court Judge Avern Cohn said the

school administrators did not consider whether the remarks were protected by the First

Amendment.132 He ruled that the university’s campus speech policy was overbroad and

vague in its wording and application.133

Judge Cohen said that in the policy’s wording concerning “threats” to an individual’s academic effort, it never defined what a “threat” is.134 The policy’s use of

the term “interfering” was vague because it did not state what kinds of conduct would

“interfere” with a student’s academic efforts.135 In his decision, Judge Cohn stated that

the University of Michigan never explained in its policy what distinguished protected

129 Id.

130 Id. at 861. The court decision does not mention what the disciplinary action was.

131 Id. at 865-66. On December 7, 1988 a complaint was filed against a graduate student in the School of Social Work alleging he harassed students based on sexual orientation and sex. In a research class, the student had openly stated his belief that homosexuality was a disease and that he intended to develop a counseling program for changing gay people to heterosexuals. In a second incident on September 28, 1988, a complaint was filed against a graduate student in the School of Business Administration for reading an alleged homophobic limerick during a public speaking class exercise. In a third incident (no known date), a comment was made by a dentistry student that minority students often had a difficult time passing one of the courses. The minority professor of the class filed a complaint alleging the comment would hurt her chances for tenure.

132 Id. at 866.

133 Id.

134 Id. at 867.

135 Id.

speech from punishable speech.136 As a result, students had to guess if a controversial comment would later bring punishments against them.137

In Saxe v. State College Area School District,138 the Third Circuit Court of

Appeals in 2001 ruled that the State College Pennsylvania school district’s anti-

harassment policy violated the First Amendment’s guarantee of Free Speech.139 The policy stated that harassment was defined by verbal or physical conduct against an individual based on several factors such as race, religion, and color.140 In its ruling, the court stated that there is no categorical harassment exception to the First Amendment’s free speech clause.141 Protected speech includes deeply offensive statements that might

“impugn” another’s race, national origin, or religion.142 Writing for the court, Judge

Samuel Alito stated that “when laws against harassment attempt to regulate oral or

written expression on such topics, however detestable the views expressed may be, we

cannot turn a blind eye to the First Amendment implications.”143

Alito warned that “loosely worded” anti-harassment laws could pose First

Amendment problems. He used the St. Paul, Minnesota hate speech ordinance at issue in

136 Id. at 867.

137 Id.

138 240 F.3d 200 (3rd Cir. 2001).

139 Id. at 202.

140 Id. The State College Area School District’s Anti-Harassment Policy defined “harassment” as “…verbal or physical conduct based on one’s actual or perceived race, religion, color, national origin, gender, sexual orientation, disability, or other personal characteristics, and which has the purpose or effect of substantially interfering with a student’s educational performance or creating an intimidating, hostile or offensive environment.”

141 Id. at 204.

142 Id.

143 Id.

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R.A.V. as an example of an ordinance that attempted to regulate deeply offensive and

potentially disruptive categories of speech based on subject matter and viewpoint.144

Alito ruled that the Pennsylvania school district’s policy was overbroad.145 It prohibited discrimination based on personal characteristics.146 The policy was also overbroad because it prohibited speech that disparaged a person’s political and moral

“values.”147 Alito stated that values are at the “heart of moral and political discourse – the lifeblood of constitutional self government…and the core concern of the First

Amendment.”148 Citing the Tinker case, he stated that student speech could be regulated

if it “substantially” disrupted school operations or interfered with the rights of others.149

In 2003 the U.S. District Court for the Middle District of Pennsylvania overturned a university speech code in Bair v. Shippensburg University.150 The plaintiffs, Walter

Bair and Ellen Wray, sought an injunction against Shippensburg University, alleging that its speech code violated their First Amendment rights.151 The policy stated that the university would not tolerate acts of intolerance directed toward others at the university

144 Id. at 207.

145 Id. at 210.

146 Id. The Court referred to Title VI of the Civil Rights Act of 1964 and Title IX of the Educational Amendments of 1972 criminalize discrimination based on sex, race, color, national origin, age, and disability.

147 Id. at 210.

148 Id.

149 Id. at 214.

150 280 F. Supp. 2d 357 (2003).

151 Id. at 361.

101 based on ethnicity, religion, race, and other factors.152 The policy also stated that students could express themselves in a manner that would not provoke, harass, intimidate, or harm others.153 Bair and Wray feared the policy chilled their right to discuss social, cultural, political, and religious issues.154

Judge John E. Jones ruled that Shippensburg’s policy was overbroad.155 He stated the policy’s use of the term “acts of intolerance” could be interpreted to encompass speech, not just a physical act, that is intolerant of others.156 Taking part in “acts of intolerance” that “demonstrate malicious intent toward others” could also be an illegal

152 Id. The Shippensburg University Speech Code stated: “Students, as members of the academic community, are encouraged to engage in a sustained, critical and independent search for knowledge. The University community supports this endeavor by developing policies and procedures that safeguard the freedoms necessary for the pursuit of truth and knowledge. The University will strive to protect these freedoms if they are not inflammatory or harmful toward others. It is therefore expected that students will exercise these freedoms in a manner that does not infringe upon the rights of others in the community. Behavior that interferes with the living conditions, co-curricular activities, working environments, teaching mission, research activities, study conditions, and/or administrative functions of the University is unacceptable. Acts of intolerance directed toward other community members will not be condoned. This is especially true, but not limited to, acts of intolerance directed at others for ethnic, racial, gender sexual orientation, physical, lifestyle, religious, age, and/or political characteristics.”

In the Shippensburg University Racism and Cultural Diversity Statement, the university stated that “It is the unequivocal position of Shippensburg University to prohibit racism/ethnic intimidation and harassment; and to affirm cultural diversity, social justice and equality. Racism shall be defined as the subordination of any person or group based upon race, color, creed or national origin. It shall be a violation of this policy for any person or group to maliciously intend to engage in any activity, (covert or overt that attempts to injure, harm, malign or harass), that causes the subordination, intimidation and/or harassment of a person or group based upon race, color, creed, national origin, sex, disability or age. Shippensburg University’s commitment to racial tolerance, cultural diversity and social justice will require every member of this community to ensure that the principles of these ideals be mirrored in their attitudes and behaviors.”

153 The Community Regulations section of the Code of Conduct stated the rights of student residents living in the university dormitories. This included “The right to express a personal belief system. The expression of one’s beliefs should be communicated in a manner that does not provoke, harass, intimidate, or harm another.”

154 Id. at 365.

155 Id. at 370.

156 Id.

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prohibition on speech.157 Judge Jones also ruled that the Community Regulations portion

of the code that directs students to communicate their beliefs “in a manner that does not

provoke, harass, intimidate, or harm another” ran afoul of the First Amendment.158 He stated that prohibiting communications that “provoke” could limit conversation and debate that arouses interest on a topic.159

The “Nuremburg Files” Brings Internet-based Hate Speech to the Courts

Although the courts have consistently ruled that speech statutes, ordinances, and

school codes violate the First Amendment, the Supreme Court has not decided a case

involving Internet-based hate speech. Yet, the Ninth Circuit of the U.S. Court of Appeals

was the first federal court to rule that a Web site was instrumental to the murder of

abortion providers in Planned Parenthood of the Columbia/Willamette Inc. v. ACLA.160

The First Amendment did not protect the Web site’s contents. The court’s ruling was based on the Brandenburg test established by the Supreme Court.161

The history behind the Planned Parenthood case began in 1993 with the murders

of three doctors who performed abortions. Doctors David Gun, George Patterson, and

John Bayard Britton were murdered after their names appeared on the “WANTED”

posters sponsored by the American Coalition of Life Activists (ACLA).162 These posters

157 Id.

158 Id.

159 Id.

160 290 F. 3d 1058 (9th Cir. 2002 en banc).

161 The court, in 2002, referred to Brandenburg v. Ohio. The Virginia v. Black ruling did not exist until a year later in 2003.

162 Id.

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were displayed in the Life Advocate, a pro-life magazine published by Advocates for Life

Ministry (ALM). In 1997, the issue of speech on the Internet became a First Amendment issue when four living abortion providers from Oregon filed the lawsuit when ACLA’s accompanying Web site, the “Nuremburg Files,” appeared with their names on it.163 The plaintiffs sued to have both the posters from the Life Advocate magazine and the Web site removed.164 More than 200 other abortion providers, judges, politicians, and abortion

rights supporters were listed on the Web site.165

The plaintiffs’ names, along with the names of other abortion providers, were listed on the Web site in two different colors. If their names were in black, the doctors were alive but if their names were in gray, they had been wounded.166 A slash through their names meant they were dead; the murdered doctors had slashes striking through their names.167 The Oregon doctors claimed they were targeted with threats from ACLA

and ALM, and they filed lawsuit under the FACE and RICO statutes. FACE criminalizes

threats of violence and the actual use of force as a means of interfering with access to an

abortion clinic.168 The RICO law allows people to sue if they are injured in their business

163 Id. at 1065.

164 Id. at 1063.

165 Id.

166 Planned Parenthood of the Columbia/Willamette, Inc., 290 F.3d at 1065.

167 Id.

168 FACE is the Freedom of Access to Clinics Entrance Act of 1994, 18 U.S.C. §248 (2005). The law prohibits the use of force, threat of force, or physical obstruction to intentionally injure, intimidate, or interfere with any person because that person has obtained or provided reproductive health services. The law also prohibits the intentional or attempted damage or destruction of a reproductive facility.

104

or on their property.169 In the first trial at the federal district level, Planned Parenthood of the Columbia/Willamette, Inc. v. ACLA, 170 a jury ruled in favor of the plaintiffs.

The ACLA and the ALM appealed the district court’s jury verdict, and a panel of

the Ninth Circuit reversed the judgment.171 The Ninth Circuit stated that while ACLA’s posters and Web site may have brought attention to the doctors, an unrelated third party was actually threatening them. The Ninth Circuit reheard the case en banc and determined the posters and Web site constituted a threat on the Oregon doctors’ lives.172

In the en banc hearing, the plaintiffs argued that the ACLA’s speech equaled a

“true threat.”173 One of the doctors, Warren Hern, stated the posters and Web site meant

“Do what we tell you to do, or we will kill you. And they do.” 174 Another abortion provider, James Newhall, said he was “severely frightened” because every time there was a WANTED poster aimed at an individual that person was subsequently murdered.

Newhall was afraid he would be the next doctor to die.175

The ACLA contended its posters and Web site were not threatening but political

and, therefore, protected speech.176 The organization argued that its messages did not

169 RICO is the Racketeer Influence and Corrupt Organization Act. 18 U.S.C.§1968 (2005). RICO contains §1964 (c) which allows people to sue if they are injured in their business or on their property. The district court’s jury awarded the four Oregon doctors financial damages under the FACE and RICO laws. Meeting en banc the U.S. Ninth Circuit Court of Appeals only reviewed the FACE damage awards. Id. at 1071.

170 23 F. Supp. 2d 1182 (D. Or. 1998).

171 244 F. 3d 1007 (9th Cir. 2001).

172 Planned Parenthood of the Columbia/Willamette, Inc., 290 F. 3d 1058 (9th Cir. en banc 2002).

173 Id. at 1071.

174 Id. at 1066.

175 Id.

176 Id. at 1070.

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constitute incitement to imminent lawless action and, as a result, not a “true threat” to the

doctors’ lives.177 The ACLA stated its political speech could not be turned into

unprotected speech when a third party who is not affiliated with their organization

commits violence.178

In overturning the appellate court’s panel decision, the appeals court en banc

ruled the federal FACE law prohibited any “threats” or intimidation to abortion

doctors.179 To support its ruling, the court referred to a Supreme Court ruling involving

hate speech and incitement to violence. Specifically, the court of appeals referred to

Brandenburg v. Ohio and reiterated that the First Amendment protects speech that

advocates violence as long as the speech is not directed to inciting or producing imminent

violence.180 The appeals court focused on the Brandenburg test in declaring the posters

and Web site unconstitutional.181 The court ruled that had the ACLA generically endorsed violence committed by others against abortion providers that may have been enough to protect speech but naming specific doctors crossed the Brandenburg line: “It is

not necessary that the defendant intend to, or be able to carry out his threat; the only

intent requirement for a “true threat” is that the defendant intentionally or knowingly

177 Id.

178 Id.

179 Id. at 1071.

180 Id. (citing 395 U.S. 444 (1969)). The Supreme Court in Brandenburg used a test that defined when speech loses its protection. The test’s first question is if the speech is mere advocacy. If it is mere advocacy, then it is protected speech. The second question is if the speech is direction to incitement. If the speech did not directly incite the illegal action it is legal. The third and fourth parts of the Brandenburg test are the words that do lead directly to imminent action and the illegal action itself. They are not protected.

181 Id.

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communicate the threat.”182 The court also remarked that “true threats” are similar to

“fighting words” in lacking any First Amendment protection.183 Similar to fighting

words, “true threats” are not part of any meaningful, political dialogue.184 Listing the abortion providers’ names moved this specific abortion debate from a political cause to a life and death issue.185 The court reiterated that the First Amendment does not protect

“threats” against an individual’s life.186

The court stated that the focus of the First Amendment limit on incitement is

whether the listener seriously takes the communication as “intent to inflict bodily

harm.”187 This distinguishes a “true threat” from speech that is merely “frightening.”188

The court stated that threats are unprotected by the First Amendment regardless of whether they are communicated in a public forum or in private.189 While the court did

not specifically say, it can be argued that the “Nuremburg Files” Web site was a public

forum since anyone could access it. The court, referring to the FACE law, defined

threatening speech as:

a statement which, in the entire context and under all the circumstances, a reasonable person would foresee would be interpreted by those to whom the

182 Id. at 1075.

183 Id. at 1086.

184 Id.

185 Id.

186 Id.

187 Id. at 1075.

188 Id.

189 Id.

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statement is communicated as a serious expression of intent to inflict bodily harm upon that person.190

Within the context of abortion clinics, any “threat” with the intention of

intimidation violates the federal FACE law, the Ninth Circuit en banc panel said. The

court said the reaction of the recipient of the communication is paramount, especially

when the “threat” is communicated directly to its victim and there is a possibility of

ensuing violence based on previous similar circumstances.191 This reasoning foreshadows what the U.S. Supreme Court ruled a year later in Virginia v. Black. In that case, the Court stated the First Amendment does not protect “threats” because of the emotional and physical strain it places on the victim when fearing for their life.192

The court, directing its attention specifically at the “Nuremburg Files” Web site,

ruled the First Amendment did not protect the content. The Web site listed hundreds of

names of pro-choice supporters, including the murdered doctors who had gray lines

crossing out their names, and was a “true threat.” The appellate court upheld the lower court’s jury verdict that the Web site constituted a “threat” to the living Oregon doctors

because of the way it portrayed the murdered doctors.193 The Web site also contained the doctors’ personal information such as business and home addresses and telephone numbers. The court noted the Web site was also illegal because it acted as a “score card” in that it listed which abortion providers were alive or dead.194 Had the ACLA not placed

190 Id. at 1077.

191 Id. at 1078.

192 Virginia v. Black, 538 U.S. 343, 360 (2003).

193 Id. at 1080.

194 Id.

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this information on the Web site the court said it might have protected the Web site as

free speech.195 The court concluded that the Web site was illegal because it violated the

Brandenburg test in that it may have directly lead to the death of the doctors. It upheld

the lower court’s order to remove the doctor’s personal contact information and the

“score card” from the Internet.196

Prohibition on Threats in Interstate Communications

While one federal appellate court used a previous Supreme Court ruling to outlaw

Internet-based “threats” made against individuals, one current federal statute on extortion and crimes, Section 875(c) of Title 18 of the U.S. Code, prohibits any attempt to threaten to kidnap, injure, or extort someone through interstate communications.197 While the law dates back to 1948 when threats were often conveyed by telephone, letter, or face-to-face, the appeals courts have applied the anti-extortion and threats law to electronic mail (e- mail) communication.198 While Title 18 has been used to prosecute e-mail threats it is a

separate law from the 1996 Telecommunications Act which also has a provision that

makes it illegal to threaten and harass an individual using telecommunications which

includes online communications. Either of the two laws can be used to prosecute

individuals who use Internet communications to threaten a victim.

195 Id. at 1088.

196 Id.

197 18 U.S.C. § 875(c) (2005) states “Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.”

198 See U.S. V. Alkhabaz 104 F.3d 1492 (1997) and U.S. v. Newell, 309 F.3d 396 (6th Cir. 2002).

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With Title 18’s section 875 (c), the government does not need to prove that defendants intended their communications be received as a “threat.”199 The threat itself is

a crime.200 The statute says that a “threat” includes injury against the victim.201 The government only needs to prove that the defendant intentionally transmitted a communication where a “reasonable person” familiar with the context of the communication would interpret it as a “true threat.”202 Finally, 875(c) has also been interpreted to mean that a specific individual target does not need to be identified in the threat in order to support a conviction.203 There are several court cases where 875(c) has generally been applied and interpreted broadly.204

U.S. v. Kelner

In 1974 in U.S. v. Kelner,205 Russell Kelner was convicted under Chapter 18 of the U.S. Code for threatening to murder Palestine Liberation Organization leader Yassir

199 See U.S. v. Whiffen 121 F. 3d 18 (1st. Cir. 1997). In this case the appeals court upheld the lower court’s conviction that the defendant’s statements were “true threats” and a reasonable jury would have found the defendant’s statements to be taken as threats by the intended victim. The court also ruled that to convict someone under 875 (c) a general intent to commit a crime must be proven. See also 31 A Am. Jur 2d Extortion, Blackmail, and Threats §21 (1994).

200 See U.S. v. Landham, 251 F.3d 1072 (6th Cir. 2001). In this case the court affirmed that it is sufficient that the threat be made regardless of the subjective intention of the defendant. A reasonable person would interpret a threat as an intent to commit bodily harm and the communication is meant to achieve that goal. See also 31 A Am. Jur 2d Extortion, Blackmail, and Threats §51 (1994).

201 Supra note 202.

202 See U.S. v. Francis, 164 F. 3d 120 (2nd Cir. 1999). The court upheld the notion that the government’s burden of proof is that “the defendant intentionally transmitted a communication in interstate commerce and that the circumstances were such that an ordinary, reasonable recipient familiar with the context of the communication would interpret it as a true threat of injury.”

203 See U.S. v. Cox 957, F.2d 264 (6th Cir. 1992). The court applied a provision in 18 U.S.C. § 876, the federal law against using the U.S. Postal Service to mail messages threatening to kidnap, extort, or injure someone, that states the victim of a threat does not need to be specifically identified to 18 U.S.C. § 875(c). The court stated that “a specific individual as a target of the threat need not be identified.”

204 See U.S. v. Kelner, 534 F.2d 1020 (2nd Cir. 1976) and U.S. v. DeAndino, 958 F.2d 146 (1992).

205 534 F.2d 1020 (2nd Cir. 1976).

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Arafat on television. The Kelner decision established that broadcasting a threat to an

unknown audience about a specific individual is the same as if the “threat” was made

directly to that person. 206 On television, Kelner warned Arafat could be murdered if he

visited New York City.207 The Second Circuit of the U.S. Court of Appeals upheld the

verdict even though Kelner claimed he and his organization, the Jewish Defense League,

did not have any specific plans to carry out an assassination. Despite the large television

viewing audience, Judge Oakes wrote that the law, as worded, recognizes the use of a

broadcast television news program as a legitimate platform for issuing threats of bodily

harm.

The judge stated that under 875(c) it was not necessary for the government to

prove that the appellant had a specific intent or an ability to carry out his threat.208 The government proved that Kelner “intended to communicate a threat of injury through means reasonably adapted to that purpose.”209 The court said threatening utterances, not

the specifics of the intent, are criminal under the statute.210 The law prohibits any

“communication containing any threat to kidnap any person or any threat to injure the

206 Id. at 1023.

207 Id. at 1021. In an interview on WPIX reporter John Miller asked: “Are you saying that you plan to kill them [Arafat and his lieutenants]?” Miller answered, “We are planning to assassinate Mr Arafat. Just as if any other mur—just the way any other murderer is treated.”

208 Id.

209 Id.

210 Id. at 1025.

111

person of another.”211 Judge Oakes wrote that the government has a duty to protect

people from threats.212

U.S. v. DeAndino

In another application of 875 (c), in 1992 the U.S. Sixth Circuit Court of Appeals

in U.S. v. DeAndino,213 overturned the 1990 dismissal of an indictment against Jean

Pierre DeAndino who was tried in district court for threatening to kill Nelson Baker. The

DeAndino case showed that 875 (c) does not require proof of a specific plan to harm a victim in order for an individual to be found guilty of breaking the law. 214 The appeals court upheld the indictment against DeAndino under the law for telling Baker he was

“going to blow his brains out” and “going to die.”215 In overturning the lower court’s dismissal, the appeals court stated that, under the law, a specific intent of action is not needed for words to be considered a “threat.”216

A general intent to threaten means that a specific plan to harm the victim did not

exist.217 General intent satisfied the court because 875(c) “does not expressly require a heightened mental element in regard to communication containing a threat.”218 A

211 18 U.S.C. § 875(c) (2005).

212 Id. at 1026.

213 958 F.2d 146 (1992).

214 Id. at 148.

215 Id. at 147.

216 Id. at 148.

217 Id. at 149.

218 Id.

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heightened mental element means a specific intent to harm.219 The statute says “any

communication containing any threat to kidnap any person or any threat to injure the

person of another.” According to Judge Leroy J. Contie, the law’s wording satisfies a

general intent to harm and does not need a threat that contains a specific plan of injury.220

Judge Contie said the government must establish that a “true threat” is made

under circumstances where a “reasonable person” would perceive the statement as a

“threat.”221 Contie also noted that the mental state of the defendant – the specific intent to harm – is not a factor in the statute’s wording.222

In most cases involving 875 (c), the courts try to identify both the actus reus and

mens rea to determine if an individual has broken the law.223 The actus reus is defined as performing an illegal act voluntarily and the mens rea is when the crime is committed with the appropriate state of mind, i.e. knowingly and willfully committing the crime.224

With illegal “threats” under 875(c) both a mens rea and an actus reus must be proven to

show there was a communication with intent to kill or injure a victim.

When attempting to apply 875 (c)’s use of “interstate communication” to the

Internet, two federal appellate courts have said the statute’s language is broad enough to

be used for prosecuting online communications. Messages are usually routed through an

219 Id. at 148.

220 Id. at 149.

221 Id.

222 Id.

223 David C. Potter, Note: The Jake Baker Case: True Threats and New Technology, 79 B.U.L. REV 783 1999).

224 th BLACK’S LAW DICTIONARY 37 (7 ed. 1999).

113

ISP that is often located in a different state even if the message’s ultimate destination is to

a recipient in the same state.

U.S. v. Alkhabaz

The Sixth Circuit of the U.S. Court of Appeals has provided a three-part test for

determining when an online threat that violates 875 (c) can be successfully prosecuted.

In U.S. v. Baker225 the appeals court dismissed charges against a University of Michigan student who had allegedly exchanged e-mail messages and posted electronic bulletin board messages about kidnapping women and sexually abusing them.

For about three months between November 1994 and January 1995 University of

Michigan student Jake Baker and his acquaintance, Arthur Gonda (living somewhere in

Ontario, Canada), exchanged e-mail messages about sexual violence against girls and women.226 On June 9, 1995 Baker posted a story on an Internet news group,

“alt.sex.stories,” describing the torture, rape, and murder of a young woman who had the

same name as one of Baker’s classmates.227 The government on February 14, 1995 charged Baker, based on the posted story, with one count of “unspecified” communications transmitted in interstate and foreign commerce from December 2, 1994 through January 9, 1995.228 One month later on March 15, 1995, the government then charged Baker and Gonda – in a superseding indictment – with five counts of violating

18 U.S.C. § 875(c) based on their two e-mail exchanges.229

225 890 F. Supp 1375 (1995).

226 Id. at 1379.

227 Id. The court records refer to the female student as “Jane Doe” in order to protect her identity.

228 Id. at 1380.

229 Id.

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Judge Avern Cohn, citing the 1974 Kelner230 decision that 875 (c) requires an intent to carry out a threat, dismissed the charges against Baker:

Statements expressing musings, considerations of what it would be like to kidnap or injure someone, or desires to kidnap or injure someone, however unsavory, are not constitutionally actionable under § 875(c) absent some expression of an intent to commit the injury or kidnapping. In addition, while the statement need not identify a specific individual as its target, it must be sufficiently specific as to its potential target or targets to render the statement more than hypothetical.231

Cohn stated Baker’s statements differed from Russell Kelner’s in that Kelner

publicly said he was planning on murdering Arafat.232 Baker never mentioned a concrete plan to kidnap and harm a specific individual. The judge noted that the e-mails were private communications between Baker and Gonda and there was little, if any chance,

Baker’s statements would have been made public.233 The e-mail messages became public only because of the trial. The original story that was posted on the electronic bulletin board was electronically traced to Baker’s Internet user account at the University of

Michigan.234

Washtenaw County prosecutors appealed the Cohn decision and brought the case

to the Sixth Circuit of the U.S. Court of Appeals.235 In upholding the lower court’s ruling the appeals court created a three-part test based on 875 (c). First, the Sixth Circuit said

230 U.S. v. Kelner, 534 F.2d 1020 (2nd Cir. 1976). In Kelner the Second Circuit of the U.S. Court of Appeals ruled that a threat to injure must contain expression of a specific intent to harm an individual.

231 Id. at 1386.

232 Id.

233 Id.

234 Id. at 1379.

235 U.S. V. Alkhabaz 104 F.3d 1492 (1997). Alkhabaz and Baker are the same individual on trial. Baker was Alkhabaz’s online pseudonym.

115

875(c) requires transmission in interstate or foreign commerce; secondly, the

communication must contain a threat; and finally, the threat must be to injure or kidnap

an individual.236 The court stated the government satisfied the first and third parts but not the second, an actual threatening communication.237

The court pointed to the DeAndino requirement that the law only requires a

general threat but even then the Baker e-mails did not qualify as a threat.238 The Sixth

Circuit ruled that in order for a communication to be deemed a “threat,” a reasonable

person would have to take the statement as a serious expression of an intention to inflict

bodily harm and perceive the expression as being communicated to effect some change or

achieve some goal through intimidation.239 Judge Cohn stated that any communication

must have the purpose of a violent goal. The court did not believe the e-mails exchanged

between Baker and Gonda were meant to effect some violent change or achieve a goal by

intimidating someone. Judge Cohn said:

Although it may offend our sensibilities, a communication objectively indicating a serious expression of an intention to inflict bodily harm cannot constitute a threat unless the communication also is conveyed for the purpose of furthering some goal through the use of intimidation.240

236Id. at 1494.

237 U.S. v. Alkhabaz, supra note 240 at 1494. In the first part of the test, the court considered e-mail as interstate communication. The third part of the test was met because Baker’s messages included discussion of kidnapping a woman. But in applying the second part of the test to the Baker case, the court did not consider the e-mails to contain a threat to harm a specific individual. While the case against Baker was unsuccessful, the appeals court’s ruling showed that if all three parts of the test are successful, then the law can be used for e-mail threats.

238 Id. at 1495.

239 Id.

240 Id.

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Cohn said that the e-mails, instead of being aimed at intimidation or violence,

were an attempt to foster an online friendship between the two of them based on sexual

fantasies.241

U.S. v. Newell

While the district and appeals courts ruled that the Baker e-mails did not violate

875(c), a successful prosecution of the law based on e-mail threats occurred in 2002. In

U.S. v. Newell, 242 the U.S. Sixth Circuit Court of Appeals upheld a lower court’s conviction based on harassing and threatening e-mails. Newell established that e-mail threats could be prosecuted under 875 (c).

Tommy Newell was convicted of threatening Cynthia Hamden, a married woman with whom he had an affair from December 1999 until August 2000. Between August

13, 2000 and September 11, 2000, Newell sent over 70 e-mails to the woman and left 26 threatening messages on her home telephone answering machine.243 Hamden lived in

Monroe County, Michigan, where she contacted the sheriff’s department. It, in turn, contacted Newell, who lived in Utah, and warned him to discontinue the messages.244

Newell continued the threatening calls to Hamden and was contacted a second time by the Monroe County Sheriff’s Department. He stopped the messages.

241 Id. at 1496.

242 309 F. 3d 396 (6th Cir. 2002).

243 Id. at 397. An example of one of the 70 e-mails is from August 13, 2000: “i will not be distrespected like this…i tried to do this your way, but your way hurts too much, i take all the pain while you and rich have fun, well starting tomorrow the rules are going to change, because i will not go out like this. No fucking way.”

244 Id. at 398.

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On September 29, 2000 FBI agents arrested Newell in Ogden, Utah, and they

charged him with a one-count indictment of transmitting threatening interstate

communication in violation of 875(c).245 On October 12, 2000 in the Eastern District

Court of Michigan, Newell pled guilty.246 In this case, the Sixth Circuit – the same court that reviewed the Baker case – upheld the district court’s conviction stating that Newell had made specific threats against his victim. Unlike the Baker case, these threats were real and aimed at a specific individual, the court held.

Congressional Attempts to Enhance the Law Against Cyberspace Threats

While 875 (c) is one tool that law enforcement can use against e-mail threats, since 1996 when Congress passed the Telecommunications Act of 1996, there is a second law that specifically bans Internet-based threats.247 This law is a part of Title 47 of the

U.S. Code, the statutes on wire and radio communications within the section on telegraphs, telephones, and radiotelegraphs. The 1996 Telecommunications Act prohibits threatening and harassing individuals via interstate communications using a

“telecommunications device.”248 The term “telecommunications device” applies to the

use of a telephone or other communications hardware in order to send threatening

245 Id. at 399.

246 Id.

247 Pub. L. No. 104 - 104 (1996).

248 47 USCS§223(a)(C)-(E) (2005). Title 47 Telegraphs, Telephones, and Radiotelegraphs – Chapter 5 Wire or Radio Communication Common Carriers, Common Carrier Regulation states that “Whoever…in interstate or foreign communications--makes a telephone call or utilizes a telecommunications device, whether or not conversation or communication ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person at the called number or who receives the communications…makes or causes the telephone of another repeatedly or continuously to ring, with intent to harass any person at the called number; or…makes repeated telephone calls or repeatedly initiates communication with a telecommunications device, during which conversation or communication ensues, solely to harass any person at the called number or who receives the communication….”

118 messages through the Internet.249 The law grants immunity to Internet Service Providers

(ISPs), including telephone companies, if their communications platforms are used for such purposes.250

The Telecommunications Act specifically states it is illegal to threaten a victim.

The threat does not need to take place in the course of an actual online conversation between two individuals.251 The law includes anonymous threats.252 In order to constitute a violation of the law, calls must be made within close proximity of one

another to count as a single episode and must be made solely to harass.253 A threat can include telephone calls that repeatedly ring without the victim answering them.254 Before the Internet existed, courts used the law to prosecute telephone-based threats. This has created a legal framework courts can use pertaining to any future cases on Internet-based threats.

249 47 USCS§230(f)(2)(2004).

250 47 USCS§230(c)(2)(2005) Title 47 Telegraphs, Telephones, and Radiotelegraphs – Chapter 5 Wire or Radio Communication Common Carriers, Common Carrier Regulation states that “…No provider or user of an interactive computer service shall be held liable on account of…any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”

251 Supra note 248. 47 USCS§223(a)(C)-(E) (2005) states threats and harassments are illegal “whether or not conversation or communication ensues.”

252 Id. 47 USCS§223(a)(C)-(E) (2005) indicates that an anonymous threats includes someone who “makes a telephone call or utilizes a telecommunications device…without disclosing his identity.”

253 Id. 47 U.S.C.S. § 223 (a) (2005). The law states anyone who “makes or causes the telephone of another repeatedly or continuously to ring, with intent to harass any person at the called number; makes repeated telephone calls or repeatedly initiates communication with a telecommunications device.”

254 Id. 47 U.S.C.S. § 223 (a) (2005) states that it is illegal for anyone who “makes or causes the telephone of another repeatedly or continuously to ring.”

119

U.S. v. Lampley

In U.S. v. Lampley,255 the Third Circuit of the U.S. Court of Appeals in 1978 upheld a lower district court’s conviction of Franklin Lampley on several counts of making threatening telephone calls. This case is important because an appeals court upheld a conviction for repeatedly using the telephone to threaten and harass a victim. A district court found Lampley guilty on one count of making threatening interstate telephone calls in violation of 18 U.S.C.§875 (c),256 and he was charged and found guilty under Title 47 of the U.S. Code for repeated, harassing telephone calls in the middle of

the night.257 In 1978 the content within Title 47 was the predecessor of the 1996

Telecommunications Act in that it criminalized telephone-based threats and harassment.

Lampley committed these crimes against his former girlfriend, Elizabeth Hatlen, her

husband, Richard, and Hatlin’s mother, Mary Simmons.258

In his defense, Lampley argued that 47 U.S.C. §223 (1)(D) violated the First

Amendment because it failed to specify that a conversation must contain harassing

“language.”259 The statute said it was illegal to use the telephone to “harass any

person.”260 In writing the court’s opinion, Judge, H. Curtis Meanor, disagreed, stating

that the statute required that speech can be punished if it has the intent “solely to harass

255 573 F.2d 783 (3rd Cir. 1978).

256 Supra note 197.18 U.S.C.§ 875 (c) (2003) Title 18 Crimes, Extortions, and Threats states “Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.” This law has successfully been applied to electronic mail threats.

257 Supra note 255 at 786.

258 Id.

259 Id. at 787.

260 47 U.S.C. §223 (1978).

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any person at the called number.”261 He stated that the nature of the conversation has no

bearing on the constitutionality of the law because the statute has a narrow intent

requirement.262 Meanor declared that abusive, obscene language is not needed to make a harassing telephone call.263 The judge also said that Congress’s goal in enacting the law was the “protection of innocent individuals from fear, abuse or annoyance at the hands of persons who employ the telephone.”264

The Third Circuit of the U.S. Court of Appeals upheld Lampley’s conviction,

stating Lampley knew what he was doing by making the telephone calls. Judge Meanor stated that the statute “precisely specifies that the actor must intend to perform acts of harassment in order to be culpable.”265 On one occasion, Lampley told Hatlen’s husband,

“I have been hired by your wife to kill you.”266 The court considered these words to be an actual telephone-based threat against Richard Hatlen in violation of the law.

U.S. v. Popa

One court case involving the law as worded in the 1996 Telecommunications Act is U.S. v. Popa.267 In 1999 the U.S. Court of Appeals for the District of Columbia upheld

the law’s threats and harassment provisions but ruled that it does not apply to political

261 Id.

262 Id.

263 Id.

264 Id.

265 Id.

266 Id. at 786.

267 187 F.3d 672 (D.C. Cir. 1999).

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discourse aimed at public officials.268 As political speech, the court ruled that telephone calls are protected by the First Amendment and not criminal under 47 U.S.C.§ 223.269 A lower district court jury convicted Ion Cornel Popa, a Romanian political refugee, for making anonymous phone calls to a U.S. Attorney with the intent to annoy, abuse, threaten, and harass an individual in violation of 47 U.S.C. §223 (a)(1)(C). On two

occasions Popa had telephoned Eric Holder, a U.S. Attorney for Washington D.C.,

calling him a “criminal, a Negro,” “a criminal with cold blood,” and a “whore, born by a

negro who [who] – became chief prosecutor of Washington, D.C.”270 On appeal the

Circuit Court for the District of Columbia reversed the district court’s decision.

Popa had argued before the D.C. Circuit that he was not guilty because his speech was directed at a public official. He telephoned Holder’s office to complain about having been assaulted by police officers and the prosecutor’s conduct of a court case against him.271 Popa claimed his speech was political in nature because it involved attempting to

contact a government employee.

The D.C. Attorney’s office argued that Popa’s calls had no political context and

were “threats” in violation of Title 47 of the U.S. Code. The appeals court sided with

Popa, stating the statute in question could have been written – but wasn’t – to exempt

speech aimed at the government and involving public discourse.272 Writing for the court,

Judge Douglas Ginsburg stated the government could not punish someone who uses the

268 Id. at 677.

269 Id.

270 Id. at 673.

271 Id. at 677.

272 Id.

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telephone to communicate a political message.273 Ginsburg said that the First

Amendment protects political speech.274 The court believed that Popa’s speech was political and not a “threat” under the statute. Using intermediate scrutiny based on the

O’Brien test, Ginsburg stated the statute’s intent of criminalizing annoying, abusive, and harassing speech “could have been drawn more narrowly by excluding from its scope, those who intend to engage in public or political discourse.”275 The court did not believe that Popa’s speech was intended as actual threats.276

Conclusion

In the first half of the Twentieth Century, the Court used its “Clear and Present

Danger” test to determine when speech no longer has First Amendment protection. In several cases including Schenck, Abrams, and Dennis, speech – including advocacy – that was deemed to pose a danger to the stability of the federal government was prohibited.

Beginning with its Yates decision in 1957, the Court backed away from its clear and present danger test.

In Chaplinsky and Beauharnais, the Court ruled that certain categories of speech

that could lead to violence were not protected by the Constitution. In Chaplinsky the

Court determined that certain categories of speech including fighting words lacked any social value. The Court’s Beauharnais decision determined that writings that disparaged

273 Id.

274 Id. at 678.

275 Id. at 677. In U.S. v. O’Brien, 391 U.S. 367 (1968) the Supreme Court ruled that the government can regulate speech if: 1) it is within the constitutional power of the Government; 2) it furthers an important or substantial governmental interest; 3) the governmental interest is unrelated to the suppression of free expression; and 4) the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

276 Id.

123 a group of people based on factors such as race, creed, or religion lacked any First

Amendment protection.

In Ashton v. Kentucky the Court moved away from its earlier Beauharnais decision. It ruled against state laws that punished group libel that could lead to disturbances of the peace. However, in rulings after Ashton the Supreme Court stated that speech and threats that will lead to violence are outside the protection of the First

Amendment. In Brandenburg, the Court struck down an Ohio state law that outlawed advocacy to violence. The Court ruled that advocacy is permitted. Speech loses any constitutional protection when it directly leads to violence.

In R.A.V. the Court overturned a St. Paul, Minnesota ordinance that prohibited using symbols or signs that aroused anger based on factors including race, religion, and gender. The Court ruled that the ordinance was unconstitutional because it prohibited certain areas of speech while permitting others. In Virginia v. Black the Court ruled that a burning cross is not protected speech when used to intimidate and a victim fears for his or her life. Burning a cross is legal as a political or social statement not as a device to frighten individuals.

Since the Court’s Ashton decision, words and symbols that advocate a political or social point of view are constitutionally protected. As the Court stated in Brandenburg and Virginia v Black, words and symbols lose their First Amendment protection when they incite violence against a victim or make the victim feel a sense of immediate physical danger through intimidation.

The Court’s jurisprudence has been applied to the Internet by the Ninth Circuit of the U.S. Court of Appeals. In the Planned Parenthood case the court ruled that online

124 hate speech loses its First Amendment protection when it threatens a victim. The

“Nuremburg Files” Web site listed the names, addresses, and telephone numbers of doctors who committed abortion procedures. The Web site also acted as a “score card” by tracking which abortion providers were alive and dead. The court ruled that these two factors could have incited an extremist pro-life activist to track down and murder a doctor.

While the Supreme Court has developed and defined a First Amendment approach to hate threats and hate speech, there are two federal statutes that criminalize threats against a victim and can be used to prosecute online threatening messages. Title

18 of the U.S. Code’s extortion and kidnapping law makes it illegal for any individual to threaten to injure someone in interstate communications. The 1996 Telecommunications

Act criminalizes using telecommunications technology – including the Internet – to threaten and harass an individual. It has been applied to a few cases involving telephone threats.

Several court cases at the lower federal appeals courts have shown that threats to injure an individual are prohibited with the Internet’s e-mail communications. While the appeals court in the Jake Baker case ruled that Baker’s e-mails were not “threats,” it created a three-part test to determine when e-mail lacks any First Amendment protection.

A threat must be transmitted in interstate or foreign commerce; secondly, the communication must contain a threat; and finally, the threat must be to injure or kidnap an individual.277 The courts have reiterated that if the conveyer of a threat did not have

277 U.S. v. Alkhabaz, 104 F.3d 1492, 1494 (1997).

125 specific intent against the victim, but the victim believes their life is in danger because of the threat, prosecution can proceed.

CHAPTER 4 CANADA’S LEGAL APPROACH TO RESTRICTING INTERNET SPEECH

The Canadian government has several laws that forbid publicly exposing an

individual or group to hatred or contempt from hate speech. The federal government,

through the Department of Canadian Heritage, has stated that fighting hate speech is an

important priority.1 The government is actively trying to reduce racism and racist related violence in Canada, putting together a plan of action to implement this goal.2 The plan includes coordinating with law enforcement and Internet Service Providers to “counter the distribution of hate propaganda.”3

The government’s concern about racism and prejudice dates back to the mid

1960s when Parliament established a commission – later to be called the Cohen

Commission – to investigate the danger hate speech poses to Canadian Democracy.4

Parliament passed the first laws criminalizing hate propaganda in 1970.5 In the more

than 35 years since the first law was put into effect, the government has continued to

protect minorities by passing restrictions against incitement to violence, promoting

genocide, and discrimination against individuals and groups. Prosecutors have applied

1 GOVERNMENT OF CANADA, DEPARTMENT OF CANADIAN HERITAGE, CANADA’S ACTION PLAN AGAINST RACISM (2005).

2 Id. at 3.

3 Id. at 6.

4 SPECIAL COMMITTEE ON HATE PROPAGANDA IN CANADA, REPORT OF THE SPECIAL COMMITTEE ON HATE PROPAGANDA IN CANADA (1966).

5 Offenses Against the Person and Reputation, R.S.C. 1985, ch. C-46, §319 (2) (2004).

126 127 these laws to hate propaganda in printed publications, on the telephone, and on the

Internet. Restricting Internet-based hate speech is also a priority of the Canadian government and in 2001 Parliament passed a law that criminalized spreading online hate propaganda.6

In the late 1980s, several extremist groups challenged the constitutionality of a few of the hate propaganda laws (as will be explained in the “Federal Laws” section of this chapter). The Canadian Supreme Court ruled that these laws do not violate the

Constitution’s Charter of Rights. The Court’s decisions on the constitutionality of the laws influenced later Human Rights Tribunal decisions on Internet-based hate propaganda. Between the Court and Tribunal’s hate propaganda decisions, the laws restricting hate speech can be applied to the Internet.

This chapter will first outline the details of the Canadian parliamentary system of government including how the House of Commons and the Supreme Court functions.

This will prove useful to understanding the relationship between the Supreme Court and

Parliament. The chapter will then review several Supreme Court decisions where the

Court determined if federal statutes banning hate propaganda were legal. It will then review three Human Rights Tribunal decisions when that body ordered three Websites shut down because the content exposed a minority group to possible contempt and persecution.

Canadian System of Government

As a former British colony and current member of the British Commonwealth,

Canada has a federal government. The British monarch is the formal head of state and a

6 Canadian Human Rights Act, R.S.C. 1985, ch. H-6, §13(2) (2004).

128

Governor General acts in the monarch’s name.7 As the monarch’s representative, the

Governor General gives formal royal assent to bills passed in Parliament, opens

Parliament’s sessions, and signs all state documents.8 Power is shared between the

federal and provincial governments.9 There is a national government and each of the

thirteen provinces and territories has its own government.10

Parliament

No two parliamentary systems are identical, but they all have one characteristic in

common – party government.11 Unlike the U.S. Congress, the Canadian House of

Commons follows the parliamentary system of governance. In parliamentary systems,

power is “fused,” not separated.12 Members of the executive are also members of the legislature.13 The majority political party in parliament selects its prime minister. The

Prime Minister, a member of the House of Commons, in turn selects the cabinet from members of Parliament, typically the House of Commons. The government is then

“responsible” to Parliament.14 When the Prime Minister’s party has a clear majority, its legislative initiatives will be passed and the Senate – rather than the House of Lords in

7 GOVERNOR GENERAL – REPRESENTING THE CROWN IN CANADA available at: http://www.gg.ca/gg/rr/01/index_e.asp.

8 Id.

9 POWERS OF THE NATIONAL AND PROVINCIAL GOVERNMENTS available at: http://www.parl.gc.ca/information/library/idb/forsey/powers_of_govt_01-e.asp.

10 Id.

11 CHARLES HAUSS, COMPARATIVE POLITICS: DOMESTIC RESPONSES TO GLOBAL CHANGES 50 (1994).

12 Id.

13 Id.

14 Id.

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Great Britain – will then review the bill.15 The Senate can reject, amend, or pass the bill.16 When a bill passes both houses, it then receives Royal Assent by the Governor

General and becomes law.17

Supreme Court

With the House of Commons and the Senate as the legislative bodies that debate

and pass the country’s laws, as in the United States, once legislation becomes law, the

Canadian Supreme Court has the authority to review it and determine its

constitutionality.18 While nine justices sit on the Court, five, seven, or all nine justices

can hear a case.19 In 80 percent of all court cases, seven justices make the ruling.20 This differs from the U.S. Supreme Court where all nine justices vote on each case that comes before them unless one or more justice recuses himself or herself. Also, unlike the U.S.

Court the Canadian Court has the authority to provide opinions on the constitutionality of legislation when asked by the Governor in Council.21 The Canadian Court hears cases

15 CANADA-HOUSE OF PARLIAMENT-HOUSE OF COMMONS, GUIDE TO THE CANADIAN HOUSE OF COMMONS 3 (2005) available at: http://www.parl.gc.ca/information/about/process/house/guide/PDFs/Guide_to_the_Canadian_HOC_v3.pdf. The Canadian Senate is similar to the British House of Lords in that members of both bodies are appointed. Canadian Senators represent specific provinces and territories. Both chambers have the authority to revise legislation and conduct investigations. In Great Britain, the House of Commons does not need approval by the House of Lords for a bill to become law if it remains before a Lords committee for more than one year. The Canadian Senate is required to vote on every bill passed by the House of Commons before it can become law.

16 Id.

17 Id. at 10.

18 SUPREME COURT OF CANADA-THE COURT’S JURISDICTION available at: http://www.scc- csc.gc.ca/aboutcourt/role/index_e.asp.

19 Id.

20 Id.

21 In Canada, the governor in council is the governor general acting on the advice of the federal cabinet. Canada Online available at: http://canadaonline.about.com/cs/gg/g/govincouncil.htm.

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brought to it by appeal from lower federal and provincial courts as well as from the

Human Rights Tribunal, an independent administrative court.22

Federal Laws on Hate Speech

The Canadian federal laws banning hate propaganda reflect the laws written into the 1982 Canadian Constitution’s Charter of Rights and Freedoms. Section One guarantees freedom of religion, press, expression, thought, and belief, “subject only to such reasonable limits prescribed by laws as can be demonstrably justified in a free and democratic society.”23 Section Two then guarantees “freedom of thought, belief, opinion, and expression including freedom of the press and media of communication.”24

The 24-year-old Canadian Constitution’s Charter establishes broad parameters for when speech will not be protected. The Parliament, through its laws, has established when there are exceptions to free speech. Prior to the 1982 Constitution, beginning in the

1960s the Canadian Parliament studied the issue of hate speech and its potential harmful consequences on minority groups. In 1966 Parliament created the Special Committee on

Hate Propaganda in Canada (the Cohen Committee). The Cohen Committee issued a report to Parliament urging it to pass strong anti-hate speech legislation.25 The Cohen

Committee stated that a strong anti-hate propaganda law – but one that did not infringe

22 SUPREME COURT OF CANADA-THE COURT’S JURISDICTION available at: http://www.scc- csc.gc.ca/aboutcourt/role/index_e.asp.

23 CAN.CONST. (Constitution Act, 1982) pt. I (Canadian Charter of Rights and Freedoms),§1.

24 Id. at §2 (b). Unlike Section One, Section Two does not mention the term “reasonable limits.”

25 SPECIAL COMMITTEE ON HATE PROPAGANDA IN CANADA, REPORT OF THE SPECIAL COMMITTEE ON HATE PROPAGANDA IN CANADA (1966).

131 on freedom of expression – was needed.26 The Cohen Committee said it was concerned about a growing prevalence of hate related incidents targeted against blacks and Jews in the 1960s.27 The body of legislation Parliament passed into law since the 1966 Report reflected the concerns and recommendations of the Cohen Committee.28

In addition to the Charter of Rights broad outline on speech rights, the Canadian

Criminal Code specifically limits speech that is hate propaganda. Originally passed into law in 1970, Part VIII of the Criminal Code makes it a crime to promote “hatred against any identifiable group” by public sentiment or in a pubic forum.29 It forbids inciting public hatred against a group of people where the incitement may lead to a breach of the peace.30 The punishment for violating this law is up to two years in prison.31 The

Criminal Code also outlaws advocating or promoting genocide against any “identifiable

26 Id. The Report’s Preface stated: “Every society from time to time draws lines at the point where the intolerable and the impermissible coincide. In a free society such as our own, where the privilege of speech can induce ideas that may change the very order itself, there is a bias weighted heavily in favour of the maximum rhetoric whatever the cost and consequences. But that bias stops this side of injury to the community itself and individual members of identifiable groups innocently caught in verbal cross-fire that goes beyond legitimate debate.”

27 Id. at 24. The Committee reported that “there exists in Canada a small number of persons and a somewhat larger number of organizations, extremists in outlook and dedicated to the preaching and spreading of hatred and contempt against certain identifiable minority groups in Canada…The Committee believes…therefore…that the actual and potential danger caused by present hate activities in Canada cannot be measured by statistics alone.”

28 See R v. Keegstra, [1990] 3 S.C.R. 697 at 749.

29 Offenses Against the Person and Reputation, R.S.C. 1985, ch. C-46,§319 (2) (2004). It is a crime for “Every one who, by communicating statements, other than in private communication, willfully promotes hatred against any identifiable group is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or

(b) an offense punishable on summary conviction.

30 Offenses Against the Person and Reputation, R.S.C. 1985 ch. C-46,§319(1) (2004).

31 Supra note 29.

132 group” distinguished by color, race, religion, or ethnic origin.32 Punishment can be up to five years imprisonment.33

In addition to the Canadian Criminal Code, another law drafted in 1977, the

Canadian Human Rights Act, criminalizes discrimination based on several factors including race, religion, and sex.34 The law states that discrimination includes hate speech against a victim or group of people if there is a danger they will be exposed to hatred or contempt. 35 Parliament’s goal was to allow individuals to be able to live their lives in equality with others “consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices…”36 Specifically, the Human Rights Act forbids any person or group of

individuals from “communicating telephonically” with the intent of exposing a person or

32 Offenses Against the Person and Reputation, R.S.C. 1985, ch. C-46,§318 (4) (2004). Section (1) of the law states: “Every one who advocates or promotes genocide is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.”

33 Id.

34 Canadian Human Rights Act, R.S.C. 1985, ch. H-6, §2 (2004). The purpose of this Act is “to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted.”

35 Canadian Human Rights Act, R.S.C. 1985, ch. H-6, §13 (1) (2004). Section 13(1) of the Human Rights Act states: “It is discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those person are identifiable on the basis of a prohibited ground of discrimination.” Section 3(1) of the law states that no Canadian can be discriminated against based on race, nation or ethnic origin, color, religions, age, sex, sexual orientation, marital status, family status, disability, or conviction for which they may have received a pardon.

36 Supra note 34.

133

groups of people to “hatred or contempt.”37 In 2001, Parliament updated the Human

Rights Act to include Internet-based communication.38 Online communication includes

“a computer or a group of interconnected or related computers, including the Internet, or any similar means of communication.”39

When Parliament passed the Human Rights Act into law it also created the

Canadian Human Rights Commission.40 As mandated by the Human Rights Act, there

are two full time and six part-time Commissioners appointed by the Governor in

Council.41 The Chief Commissioner and Deputy Chief Commissioner serve a seven- year term and the other Commissioners serve for three years.42 If it cannot mediate a

conflict, the Canadian Human Rights Commission refers cases to the Human Rights

Tribunal.43 Under the Human Rights Act, the Tribunal is an independent administrative court that settles allegations of discrimination.44 The Tribunal was created by Parliament to investigate complaints of discrimination and to decide if the alleged act violates the

37 Supra note 35.

38 Canadian Human Rights Act, R.S.C. 1985, ch. H-6, §13(2) (2004). Section 13(2) of the Canada Human Rights Act states that Section 13(1) applies “in respect of a matter that is communicated by means of a computer or a group of interconnected or related computers, including the Internet, or any similar means of communication, but does not apply in respect of a matter that is communicated in whole or in part by means of the facilities of a broadcasting undertaking.”

39 Id.

40 Canadian Human Rights Act, R.S.C. 1985, ch. H-6, §25 (2004).

41 Canadian Human Rights Commission, appointment information available at http://www.chrc- ccdp.ca/about/commissioners-en.asp.

42 Id.

43 Canadian Human Rights Tribunal, jurisdiction policy available at http://www.chrt- tcdp.gc.ca/about/jurisdiction_e.asp.

44 Canadian Human Rights Tribunal, brief overview available at http://www.chrt-tcdp.gc.ca/index_e.asp.

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Canadian Human Rights Act.45 The Tribunal has a full time chairperson, a full time vice-

chairperson, and thirteen part-time or full time members.46 Under the law, when the

Commission receives a complaint about an alleged online hate speech and cannot resolve

the conflict, the Tribunal has the authority to investigate and render a decision. The

Tribunal has the legal mandate to order individuals to shut down their Web sites and order an ISP to no longer grant a customer access to a Web site.47

Canadian Supreme Court Cases

The foundation for how the Tribunal has ruled on allegations of Internet-based hate propaganda is based on four decisions by the Canadian Supreme Court in the early

1990s. The Court’s cases tested the constitutionality of the anti-hate propaganda laws

passed by Parliament in the 1970s.48 The overarching concern of the Court in each case was whether the law did not restrict speech any more than it needed to in order to protect

Canada’s democratic values for all of its citizens. Each case involved an organization

that attempted to disseminate its messages to the public. In each case the Court had to

determine if the ban on public dissemination of hate propaganda by an individual or

organization aimed at a minority group was constitutional. The Court devised the Oakes

test in 1986 in order to establish if laws that minimally impaired Charter rights and

freedoms could remain legal.

45 Canadian Human Rights Tribunal-About the CHRT-Our Mission available at: http://www.chrt- tcdp.gc.ca/about/index_e.asp.

46 Canadian Human Rights Tribunal, members description available at http://www.chrt- tcdp.gc.ca/about/members_e.asp.

47 Canadian Human Rights Commission mandate available at http://www.chrc-ccdp.ca/about/mandate- en.asp.

48 Supra note 29. The federal laws pertaining to advocating genocide and incitement to breach of the peace have not been challenged in the courts.

135

Oakes Test

In 1986 the Supreme Court outlined a test for determining when a law that violates a section of the Charter might still be constitutional.49 In several hate speech cases that came before the Court in the early 1990s, the Court used a legal test it devised in R. v. Oakes to determine if federal laws were constitutional according to Section One of the Charter as a “reasonable limit” and justified in a “free and democratic society.”50

In R. v. Oakes, David Oakes was arrested for possessing narcotics for the purpose

of trafficking in violation of Section Eight of the Narcotics Control Act.51 Section Eight

49 R. v. Oakes, [1986] 1 S.C.R. 103.

50 Id.

51 According to the Court, in the Oakes case the contested portions of The Narcotics Control Act, R.S.C. 1970, c, N-1 state:

3.(1) Except as authorized by this Act or the regulations, no person shall have a narcotic in his possession.

(2) Every person who violates subsection (1) is guilty of an indictable offence and is liable

(a) upon summary conviction for a first offence, to a fine of one thousand dollars or to imprisonment for six months or to both fine and imprisonment, and for a subsequent offense, to a fine of two thousand dollars or to imprisonment for one year or to both fine and imprisonment; or

(b) upon conviction on indictment, to imprisonment for seven years.

4.(1) No person shall traffic in a narcotic or any substance represented or held out by him to be a narcotic.

(2) No person shall have in his possession a narcotic for the purpose of trafficking.

(3) Every person who violates subsection (1) or (2) is guilty of an indictable offence and is liable to imprisonment for life.

8. In any prosecution for a violation of subsection 4(2), if the accused does not plead guilty, the trial shall proceed as if it were a prosecution for an offense under section 3, and after the close of the case for the prosecution and after the accused has had an opportunity to make full answer and defense, the court shall make a finding as to whether or not the accused was in possession of the narcotic contrary to section 3; if the court finds that the accused was not in possession of the narcotic contrary to section 3, he shall be acquitted but if the court finds that the accused was in possession of the narcotic contrary to section 3, he shall be given an opportunity of establishing that he was not in possession of the narcotic for the purpose of trafficking, and thereafter the

136

of the law established the procedures for trying a defendant arrested in possession of drugs. In his appeal to the Court, Oakes contended that the Narcotics law violated

Section 11(d) of the Charter, which guarantees an individual’s presumption of innocence

until proven guilty by a court or tribunal.52 Using what is now known as the Oakes test, the Court ruled that the narcotics law was still constitutional even though it violated

Section 11(d).53 In creating the Oakes test without reference to prior cases, the Court stated that the goal of the Narcotics Control Act was important enough to justify limiting one person’s Constitutional right in order to keep Canadian society free of illicit drug use and trafficking.54

Dickson stated that in applying the Oakes test the burden of proving a need for

limiting a right or freedom guaranteed in the Charter rests on the party seeking to uphold

the limitation.55 He wrote that the Court would approach a case on the presumption that

the rights and freedoms are guaranteed unless the party invoking Section One can justify

a limitation.56 In order to establish that a limit on a constitutional right is “reasonable”

and “demonstrably justified,” the prosecution must meet two criteria. In the first part of

prosecutor shall be given an opportunity of adducing evidence to establish that the accused was in possession of the narcotic for the purpose of trafficking; if the accused establishes that he was not in possession of the narcotic for the purpose of trafficking, he shall be acquitted of the offence as charged but he shall be convicted of an offence under section 3 and sentenced accordingly; and if the accused fails to establish that he was not in possession of the narcotic for the purpose of trafficking, he shall be convicted of the offence as charged and sentenced accordingly.

52 Section 11(d) of the Canadian Charter of Rights and Freedoms states that any person charged with an offense has the “right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.”

53 R.v. Oakes, [1986] 1 S.C.R. at 141.

54 Id.

55 Id. at 137.

56 Id.

137

the Oakes test, the objective of the limiting measure must be of “sufficient importance” to

warrant overriding a constitutionally protected right or freedom.57 Secondly, once a

“sufficiently significant” objective is measured, then the party must show that the means chosen are “reasonable” and “demonstrably justified.”58 The Court stated that this is a form of a proportionality test.59

This proportionality part of the Oakes test has three components to it. First, the

measures adopted must be carefully designed to achieve the objective in question.60

Second, the means should impair “as little as possible” the right or freedom in question.61

Finally, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom and the objective which has been identified as of sufficient importance.62 The Court warned that since the Charter contains

several rights and freedoms, some limits on rights would be more serious than others in

terms of the nature of their impact.63

In the Oakes opinion, Chief Justice Robert Dickson stated that Section One of the

Charter has two functions. First, it constitutionally guarantees the rights and freedoms set out in the document, and secondly, it states explicitly the exclusive “justificatory” criteria

57 Id. at 138.

58 Id. at 139.

59 Id.

60 Id.

61 Id.

62 Id.

63 Id.

138

against which limits on those rights can be measured.64 Any Section One complaint must be premised on an understanding that the impugned limit violates constitutional rights and freedoms.65 Another element of Section One is the use of the phrase “free and

democratic society.” Dickson explained that Canadian society must be free and

democratic:

The Court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance and the participation of individuals and groups in society.66

In its approach of how to interpret Section One, Dickson noted that the rights and freedoms of the Charter are not “absolute.”67 He stated that application of the Oakes test might become necessary to limit an individual’s rights and freedoms in circumstances

when Canada’s status as a free and democratic nation for its society is important.68

In Oakes the Court ruled that the objective of protecting Canadian society from the “grave ills” associated with drug trafficking is of “sufficient importance” to warrant

overriding a constitutionally protected right or freedom.69 In hate speech cases, the Court has used the Oakes Test to determine if the federal laws, as applied in each set of circumstances, were important enough to justify limiting a Charter right.

64 Id. at 135.

65 Id.

66 Id. at 136.

67 Id.

68 Id.

69 Id. at 141.

139

R. v. Keegstra

The Supreme Court first used the Oakes test in a hate propaganda case in 1990.

In R. v. Keegstra,70 the Court in a four to three vote ruled that James Keegstra, an

Eckville, Alberta high school teacher, violated Section 319(2) of the Criminal Code when

he promoted hatred against the Jewish community with anti-Semitic statements spoken to

his students. Keegstra’s comments against the Jews included terms such as “subversive,”

“treacherous,” and “power hungry.”71 He taught his students that Jewish people want to destroy Christianity and are responsible for economic depressions, anarchy, chaos, wars, and revolution.72 Keegstra expected his students to reproduce his teachings on exams and in class discussion.73 If they did not, their grades suffered.

The Court ruled that while the law violated Section Two (b) of the Charter guaranteeing freedom of expression it was, nonetheless, constitutional within Section

One of the Charter.74 Freedom of expression can be limited “subject only to such

reasonable limits prescribed by laws as can be demonstrably justified in a free and

democratic society.”75

Using its 1986 Oakes test, Chief Justice Robert Dickson stated 319(2) of the

Criminal Code – that makes it illegal to publicly promote hatred against an identifiable

group – was proportionate to its goal and limited in application because it pertains

70 [1990] 3 S.C.R. 697.

71 Id.

72 Id.

73 Id.

74 Id. at 795.

75 CAN.CONST. (Constitution Act, 1982) pt. I (Canadian Charter of Rights and Freedoms),§1.

140

specifically to public hate propaganda aimed at an individual or minority group.76 The law’s use of the term, “willful,” in the promotion of hatred minimizes the impairment of free expression.77 Essentially, hate propaganda must be communicated on purpose with a

specific goal in mind. That goal was exposing the Canadian Jewish community to public

hatred and contempt. The law also satisfies the Oakes test in that it limits expression no

more than is needed. The term “hatred” narrowed the category of speech at issue in this

case.78 This satisfied the Oakes test’s proportionality requirement. Banning a category

of speech that promoted “hatred” was narrow enough for the Court.

In the Court’s opinion, Justice Dickson deferred to Parliament’s legislative intent

behind Section 319(2) of the Criminal Code. He said that Parliament recognized the

“substantial harm” that can come from hate propaganda.79 Parliament, according to

Dickson, acted to protect Canadian minority groups because of the “harm” wide spread hate speech can cause.80 This harm includes preventing pain suffered by the target group and to reduce racial, ethnic, and religious tension in the country.81 In passing the law,

Dickson stated that Parliament did not violate Section One of the Charter that both

guarantees speech and allows for it to be “reasonably” restricted.82 In the Justice’s

76 Supra note 74 at 771.

77 Id. at 775.

78 Id. at 779.

79 Id. at 758.

80 Id.

81 Id.

82 Id.

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opinion, promoting the hatred of identifiable groups is of “limited importance when

measured against free expression values.”83

Justice Dickson recognized the potential harm hate propaganda has against a

minority community. Without reference to prior cases, he noted that hate speech could

cause the psychological injury of humiliation and degradation to members of the targeted

group.84 Dickson warned that society at large could be influenced by the hate messages and start believing in them.85 Even if the messages are outwardly rejected, Justice

Dickson – citing the writings of Mari Matsuda86 – stated there is evidence that a premise of racial or religious inferiority might persist in a recipient’s mind.87

The Court’s opinion said that the country’s commitment to democratic values for

all groups overshadows the right to spread hate propaganda.88 Dickson wrote that

“expression can work to undermine our commitment to democracy where employed to

propagate ideas anathemic to democratic values.”89 Democracy is “subverted” when the

targets of hate speech are denied respect and dignity because of racial or religious

83 Id. at 763.

84 Id. at 746.

85 Id. at 747.

86 Mari Matsuda, Public Response to Racist Speech: Considering the Victim’s Story 87 Mich. L. Rev. 2320 (1989).

87 Supra note 85 at 748.

88 Id. at 764.

89 Id.

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characteristics.90 As a result, hate speech is “wholly inimical” to the democratic

aspirations of the constitutional free speech guarantee in the Charter.91

Justice Beverly McLachlin wrote on behalf of the Court’s three dissenting judges.

She stated that Canada should embrace the marketplace of ideas approach to free

speech.92 This will lead to a more “relevant, vibrant and progressive society.”93 She

worried that without the marketplace approach there could be a stagnation of creative

ideas.94 Justice McLachlin stated without the freedom to comment and criticize other fundamental freedoms could eventually be “subverted by the state.”95

Justice McLachlin advocated that under the 1982 Constitution freedom of

expression should be guaranteed to all Canadians and should only be restricted if speech

entails a call for violence.96 She notes that Keegstra’s words, while apprehensible, never called for violence against Canada’s Jewish population.97 Since Keegstra’s words were political and social hyperbole, McLachlin stated that the underlying assumption of the marketplace of ideas theory will be to reject Keegstra’s anti-Semitic ideas. Keegstra is free to talk but that does not “guarantee the right to be listened to or to be believed.”98

90 Id.

91 Id.

92 Id. at 804.

93 Id.

94 Id.

95 Id. at 803.

96 Id. at 829.

97 Id.

98 Id. at 832.

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R. v. Andrews

On the same day the Court announced its decision in the Keegstra case, it also

ruled on another hate propaganda case. In R. v. Andrews99 the Court ruled four to three that a bi-monthly newsletter, the Nationalist Reporter, violated Section 319(2) of the

Criminal Code, the same statute at issue in the Keegstra case. The Nationalist Party of

Canada, a white nationalist political organization, published and distributed the

newsletter.100 The defendants, Donald Clarke Andrews and Robert Wayne Smith

published a bi-monthly newsletter that contained hate message against blacks and

Jews.101 For example one issue contained statements such as “Nigger go home,” Hoax on

the Holocaust,” “Israel stinks,” and “Hitler was right. Communism is Jewish.”102 Unlike the Keegstra case where the Alberta Court of Appeal ruled that Section 319(2) of the

Criminal Code violated Canada’s Charter of Rights, in Andrews a majority on the Ontario

Court of Appeal ruled the law did not violate the Charter.

The Supreme Court reviewed both Keegstra and Andrews together and issued its

rulings on both cases on the same day since the facts of the two cases were similar.103 In both cases the Court stated that the law did violate freedom of speech as guaranteed by

Section Two of the Charter but was still constitutional under Section One’s reasonable limit prescribed by law “as can be demonstrably justified in a free and democratic

99 [1990] 3 S.C.R.870.

100 Id. at 874.

101 Id.

102 Id.

103 Id. at 873.

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society.”104 In the shorter Andrews ruling, Chief Justice Robert Dickson specifically referred to the reasoning he provided in Keegstra: in a democratic country restricting hate propaganda is constitutional in order to protect groups of people from hatred and possible violence.105 Dickson stated that targeting minorities for possible violence violates the

principles of democracy.106

The same three justices who dissented in Keegstra also dissented in Andrews.

Since the two decisions were decided at the same time, these justices in Andrews stated

that their reasons for dissenting were the same in both cases. They urged the public to

read their dissent in Keegstra.107

R. v. Taylor

In a third hate propaganda case in 1990, the Supreme Court, in another four to three vote, upheld the conviction of John Ross Taylor by the Human Rights Tribunal for communicating hate messages by telephone.108 The Court said that Parliament’s purpose

in enacting the Human Rights Act was to criminalize exposing an individual or group to

hatred or contempt by repeated telephonic communication.109 Between 1977 and 1979

Taylor, the leader of the Western Guard Party, had placed 13 different anti-Semitic messages on an answering machine that the public could call and listen to.110 Taylor and

104 See Keegstra [1990] 3 S.C.R. 697 and Andrews [1990] 3 S.C.R.870.

105 Id.

106 Id.

107 Andrews [1990] 3 S.C.R. 870 at 886.

108 Canada v. Taylor, [1990] 3 S.C.R. 892.

109 Id. at 918.

110 Id. at 903. One of the telephone messages stated: “There is a conspiracy which controls and programmes Canadian Society; it is difficult to find out the truth about this conspiracy because our books,

145 his organization distributed cards to individuals and crowds with a message to call a telephone number to hear the message.111 The number was also placed in a local

Canadian city telephone book with the notation, “White Power Message.”112

After the Tribunal convicted Taylor and ordered him to stop posting the messages on the answering machine, he continued the messages.113 In 1980 a federal trial court

ruled that Taylor was in contempt and fined him $5,000 and a one-year prison

sentence.114 After his sentence Taylor resumed the telephone messages in 1982-83.

Once the Human Rights Commission became aware of this, it filed a second complaint

against Taylor. He appealed the Commission’s complaint alleging that Section 13(1) of

the Canadian Human Rights Act that outlaws using a telephone to spread hate

propaganda violated Section 2(b) of the Charter of Rights passed into law in 1982.115

The Court ruled that while Section 13(1) does violate Section 2(b) of the Charter, the law is still constitutional because it constitutes a “reasonable limit” on freedom of speech as

our schools and our media are controlled by the conspirators. The conspirators cause unemployment and inflation; they weaken us by encouraging perversion, laziness, drug use and race mixing. They become enriched by stealing our property. They have founded communism which is responsible for many of our economic problems such as the postal strike; they continue to control communism and they use it in the furtherance of the conspiracy. The conspirators are the Jews.”

111 Id. at 904. The cards had a maple leaf symbol on them with an appeal to dial the telephone number.

112 Id. The Court decision does not mention which Canadian city telephone book the message was placed in.

113 Id. at 905.

114 Id.

115 Section 13(1) of the Human Rights Act states: “It is discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those person are identifiable on the basis of a prohibited ground of discrimination.”

146

permitted by Section One of the Charter.116 The Commission’s initial cease and desist ordered remained in effect.

Writing for the four justice majority, Chief Justice Robert Dickson stated that using the telephone to spread hate propaganda is contrary to the “furtherance of equality.”117 Dickson noted that in seeking to prevent the harms caused by hate

propaganda, the objective of the Section 13(1) is important enough to warrant “some

limitation upon the freedom of expression.”118

Citing the Oakes test, the Court stated Section 13(1) is proportionate to the objective of eliminating hate propaganda.119 The Court emphasized that there was a

connection between the law and its goal (eliminating telephone-based hate propaganda)

and that this connection was not arbitrary or irrational.120 The Court said that the law impairs a Charter Right no more than is necessary, and it is not an unacceptable abridgment of speech.121

In referring to the Oakes test, Dickson emphasized that expressive activities advocating unpopular positions are accorded full constitutional protections.122 In this case, however, the Court stated that hate propaganda goes beyond advocating an unpopular position; it exposes an individual or group of people to hate and potential

116 See Taylor, 3 S.C.R. at 943.

117 Id.

118 Id. at 919.

119 Id. at 921. For an explanation of the Oakes test see “Oakes Test” section of this chapter.

120 Id.

121 Id.

122 Id. at 922.

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violence. According to the Court, the Human Rights Act seeks to eliminate this

danger.123

In the Court’s ruling Justice Dickson stated that the goal of purveyors of hate is to convert others to their view.124 In Taylor the Court noted that the telephone is an

effective source for communicating messages of “intolerance and inequality.”125 Section

13(1)’s use of the terms “hatred or contempt” was sufficiently narrow to limit which expressive views fall outside Charter protection.126 The Court defined “hatred or contempt” as “expressive activities” that are contrary to Parliament’s objective of promoting equality and tolerance in Canadian society.127 The law also contains the term

“repeatedly” in describing the banned hate-based telephonic communication. The Court

interpreted “repeatedly” to mean a public, large-scale effort to spread hate propaganda.128

In upholding the Tribunal’s orders, the Court was concerned that Taylor’s goal was to expose the Canadian Jewish community to hatred and contempt by other Canadians.

In the dissent, Justice Beverly McLachlin stated that the law at issue, Section

13(1) of the Human Rights Act, is against her marketplace of ideas approach to free expression.129 McLachlin said that free expression can be justified on the basis of three

rationales. The first is that free expression is important to a “vibrant society.” Secondly,

123 Id. at 930.

124 Id. at 938.

125 Id.

126 Id. at 939.

127 Id.

128 Id.

129 Id. at 952.

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free expression is instrumental for the “proper functioning” of democratic government.130

Finally, free expression is needed for “self-actualization or self-fulfillment.”131 The

Justice argued that each Canadian citizen is entitled to free expression.

McLachlin stated she worried that upholding the law will lead to a “chilling factor” on expression. More restrictions are likely, she contended.132 The effects from restricting expression will extend beyond the actual expression targeted in the case before them.133

Justice McLachlin wrote that Section 13(1) is vague because it does not define its terms, “hatred” and “contempt.” The Justice said that “hatred” and “contempt” are capable of different interpretations. For example, she posits, where does dislike “end” and hatred “begin?”134 She stated that “hatred” can be interpreted to range from active

dislike to “enmity” and “ill-will.” 135 “Contempt” can signify a lack of respect or possibly some other meaning.136 McLachlin said Section 13(1) of the Human Rights Act

does not give society a clear and precise indication as to what the limits of speech are.137

130 Id.

131 Id.

132 Id. at 959.

133 Id. at 960.

134 Id.

135 Id. at 961.

136 Id.

137 Id. at 962.

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Section 13(1) of the Human Rights Act is not “carefully tailored to its aims and lacks a

rational connection with its objectives.”138

R. v. Zündel

In Keegstra, Andrews, and Taylor the Court ruled that public dissemination of

hate propaganda was unconstitutional, but in 1992, in a four to three vote, it upheld the

right of individuals to publish false information that could be hate related.139 In R. v.

Zundel, it overturned Section 181 of the Criminal Code that criminalized publishing a paper-based “statement, tale, or news” known to be false and could cause “mischief to a public interest.” 140 The Court ruled the law was vague and overbroad.141 The defendant,

Ernst Zündel, had published a 32-page booklet “Did Six Million Really Die?” in which he questioned the number of Jewish victims who died in the Holocaust.142 A lower court ruled that the booklet violated Section 181 of Canada’s Criminal Code.143

The Supreme Court overturned the Ontario Court of Appeal’s verdict that the law violated Section One of the Charter.144 Writing for the majority, Chief Justice Beverly

McLachlin stated that the law should have been narrowly tailored and not criminalize a broad range of speech:

138 Id. at 965.

139 R v. Zündel, [1992] 2 S.C.R. 731.

140 Sexual Offences, Public Morals and Disorderly Conduct, R.S.C. 1985 c-46 § 181 (1992). The law stated: “Every one who wilfully publishes a statement, tale or news that he knows is false and that causes or is likely to cause injury or mischief to a public interest is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.”

141 Supra note 139 at 743.

142 Id.

143 R. v. Zündel, [1990] 53 C.C.C. (3d) 161.

144 Supra note 139 at 743.

150

To permit the imprisonment of people, or even the threat of imprisonment, on the ground that they have made a statement which 12 of their co-citizens deem to be false and mischievous to some undefined public interest, is to stifle a whole range of speech, some of which has long been regarded as legitimate and beneficial to our society.145

When this decision was handed down, Beverly McLachlin had just replaced Robert

Dickson as Chief Justice. In the previous hate propaganda decisions, she was one of the

dissenting votes. In Keegstra, Andrews, and Taylor, McLachlin along with Justices

Gerard Vincent La Forest and John Sopinka were the dissenters. In this case they were in

the majority along with Justice Claire L’Heurex-Dube. A switch in three votes may have

been an important reason the Court struck down Section 181 of the Criminal Code.

In the Zündel holding the Court acknowledged that publishing false information is

often a matter of debate especially when historical facts are at issue.146 It did not endorse

Zündel’s writings but maintained his right to publish unpopular viewpoints. The overall right to publish an unpopular opinion was the fundamental issue the Court attempted to answer.

In the Court’s ruling that Section 181 was too vague, McLachlin stated that

Parliament never specified if the law’s terms, “statement, tale or news,” meant an actual statement of fact or opinion. McLachlin pointed out that at the lower court’s jury trial,

the judge instructed the jury to assume that since the Holocaust is a historical fact, Zündel

must have known he had published a false statement.147 Under this instruction, the jury

had no choice but to find the defendant guilty because it had to presume that Zündel

145 Id.

146 Id.

147 Id. at 750.

151

knew and believed the Holocaust was a historical fact, McLachlin said. Chief Justice

McLachlin wrote that the jury was not allowed to consider if Zündel’s writings were his

opinions and that he may have believed what he wrote.148

Further, the trial judge instructed the jury that the pamphlet would have led to an

“injury or mischief to a public interest” because it is in society’s best interest to have

racial and religious harmony in Canada.149 Justice McLachlin said the jury had little

choice but to find Zündel guilty under these instructions because it was not allowed to

determine if the pamphlet, as a work of Zündel’s opinions, could cause injury or mischief

to the public interest.150 McLachlin did not blame the lower court’s judge; rather she found fault with the vague wording of the law.151

The Chief Justice pointed out that the Court could not find any parliamentary

documentation explaining why Section 181 was enacted and retained.152 She noted that it dates back to the founding of the Canadian federation. At one point it was moved from the Sedition section of the Criminal Code and placed in the Nuisance section but without any written record explaining the change.153 Parliament never identified a social problem

or pressing concern justifying the law. Due to the lack of any written record, McLachlin

148 Id. at 751.

149 Id.

150 Id.

151 Id.

152 Id. at 763.

153 Id.

152

stated that it could not be applied to fight hate propaganda because of the lack of a

legislative intent.154

As a result of not having a defined intent, McLachlin wrote that the law’s phrase

“statement, tale or news” was overbroad, encompassing what could be a broad range of

historical and social speech going that goes beyond what is pure fact but, nonetheless,

deserving of Charter protection.155 The other portion of the law entailing “injury or

mischief to a public interest” the Court also found as overbroad. Chief Justice McLachlin

pointed out that it could not find a case where the phrase was applied in a clear and

consistent manner. According to the Court, the lack of jurisprudence means the law

could not be applied in a restrained, limited manner.156

The Court ruled that the Charter’s guarantee of free expression serves to protect a

minority’s right to express its views no matter how unpopular.157 Often times, it is the unpopular sentiment that is in need of protection under a guarantee of free speech.158

McLachlin noted that while deliberate lies do not have value, exaggeration might serve

useful social purposes.159 Exaggerations can spur societal debate on important issues.160

154 Id. at 763.

155 Id. at 769.

156 Id. at 770.

157 Id. at 753.

158 Id.

159 Id. at 755.

160 Id. McLachin gave the following examples: A doctor who exaggerates statistics related to the danger of a virus in order to make the public aware of the potential danger; and a social activist who cites false statistics in the pursuit of communicating an important message.

153

Justices Peter deCarteret Cory and Frank Iacobucci co-wrote the dissent. In their

view Zündel’s writings involved the “deliberate” and “willful” publication of lies that

were damaging to the Canadian Jewish community.161 They believed that the Court’s holding in Keegstra pertained to this case.162 In Zündel Cory and Iacobucci stated that

the writings at issue had the same potential for damage to the Jewish community that

Keegstra’s teachings had.163

Both Justices disagreed with the majority that Section 181’s wording was vague.

They stated that it provided clear guidelines for conduct. Publishing a statement that a person knows to be false and may injure the public interest is not vague.164 Cory and

Iacobucci also posited that even though the language of the law was not defined by

Parliament, that, alone, was not enough to overturn it. They stated that several laws in the Criminal Code have been interpreted by the federal courts. According to the Justices,

“Courts have in the past played a significant role in the definition of words and phrases used in the Code and other enactments.”165

Regarding the law’s use of the term “public interest,” the Justices stated that it

refers to the protection and preservation of those rights and freedoms guaranteed in the

Charter.166 These rights are fundamental to Canadian society. Harm to the “public interest” occurs if false statements are likely to seriously injure other Canadians rights

161 Id. at 802.

162 Id.

163 Id.

164 Id. at 804.

165 Id.

166 Id. at 807.

154

and freedoms.167 Section 181 of the Criminal Code is meant to punish “manipulative”

and “injurious statements” of fact that are disguised as authentic research.168 Echoing the

sentiments of the majority in the Keegstra and Andrews decisions, Cory and Iacobucci

stated that the law could have played an important role in encouraging racial and social

tolerance which is needed for a functioning democracy.169

The Zündel case differs from the Court’s previous hate propaganda cases because

Section 181 of the Canadian Criminal Code did not include writings that could expose a minority group to hatred or contempt. Instead the law focused on injury to the “public interest.” Section 181 was a law that would have banned publishing false information and, unlike the other Canadian laws, did not include the specifics of advocating hate against an individual or group of people.

Canadian Human Rights Commission

While the Supreme Court has reviewed the validity of the federal criminal code restricting public hate propaganda, another law, the Canadian Human Rights Act, ensures

that all Canadians are not discriminated against in society.170 When Parliament passed the Human Rights Act in 1977, it created the Human Rights Commission. Part II of the

Canadian Human Rights Act authorizes the Human Rights Commission to “ensures that the principles of equal opportunity and non-discrimination are followed in all areas of

167 Id.

168 Id. at 808.

169 Id. at 809.

170 Canadian Human Rights Act, R.S.C. 1985, ch. H-6, §2 (2004).

155

federal jurisdiction.”171 The Commission is a federal government entity that monitors

programs, policies, and legislation affecting designated groups to ensure that their human

rights are protected.172 These designated groups are women, Aboriginal peoples, persons with disabilities, and minorities groups.173 As a comparison to the U.S. government, the

Human Rights Commission is similar to the U.S. Federal Communications Commission

(FCC) in that the FCC oversees the federal policies, programs, and regulations governing the telecommunications industry. These regulations include laws passed by the

Congress. As an independent governing body, the Human Rights Commission has rule- making and conflict solution authority in enforcing the Human Rights Act.174

The Human Rights Commission is composed of up to two full-time and six part-

time commissioners who meet regularly to decide on individual complaints and approve

Commission policies.175 The Human Rights Commission tries to resolve complaints of

discrimination filed against federally regulated employers, unions, and service providers.

If a complaint cannot be resolved, the Commission may investigate the case further, and

may ultimately request that the Canadian Human Rights Tribunal – a separate federal

administrative court – hears the case.176 When the Commission receives a complaint

171 Canadian Human Rights Commission-About Us-Our Mandate available at http://www.chrc- ccdp.ca/about/mandate-en.asp.

172 Id.

173 Id.

174 Id.

175 Id.

176 Id.

156

about alleged online hate speech and cannot mediate the dispute, it will turn that case

over to the Human Rights Tribunal for judgment.

Regarding Internet–based hate speech, the Commission is the legal authority in

Canada that investigates any complaints.177 The Commission’s Web site states that it is

in the process of developing a strategy to work with other concerned parties to combat

hate on the Internet.178 This strategy includes building “partnerships” with ISPs, Non-

Governmental Organizations, the police, and government departments to fight online

hate.179

Canadian Human Rights Tribunal

As an independent federal agency, the Tribunal is an administrative court of law,

but is less formal and only hears cases related to discrimination.180 A decision by the

Tribunal can be appealed to the federal courts of Canada including the Supreme Court.181

Its membership consists of a Chairperson, Vice-Chairperson, and 13 full or part time

members.182 The Chairperson assigns one, two, or three members to hear a case.183 The

Tribunal was created by Parliament to investigate complaints of discrimination and to decide if the alleged act violates the Canadian Human Rights Act.184 As an administrative tribunal, it has more flexibility than regular courts by allowing those who appear before it a chance to tell their cases more fully without having to follow strict rules of evidence.185 The Tribunal's main goal is to ensure that the Canadian Human

Rights Act is interpreted and applied fairly and impartially at all hearings.186 The

177 Canadian Human Rights Commission – Discrimination and Harassment Policy available at http://www.chrc-ccdp.ca/discrimination/watch_on_hate-en.asp?highlight=1.

178 Id.

179 Id.

157

Tribunal is similar to the U.S. FCC in that the Commissioners resolve any complaints

brought before the FCC. The Tribunal’s only function is to serve as a final arbiter that

resolves disputes under the Human Rights Act.

The Tribunal since its founding in 1977, has decided 15 cases involving hate

propaganda.187 Of those 15, three – since 2002 – are directly related to Internet hate

speech. The first Internet-hate speech case the Tribunal reviewed involved Ernst Zündel,

the same individual the Supreme Court ruled on in 1992 who had published information

denying the facts of the Holocaust.188

Sabina Citron and Canadian Human Right Commission v. Ernst Zündel

The Zündel189 case before the Tribunal in January 2002 was the first time Section

13(1) of the Canadian Human Rights Act was applied to a Web site. Section 13(1) states that it is a “discriminatory practice” for a person to use telephone-based communication

180 Canadian Human Rights Tribunal available at http://www.chrt-tcdp.gc.ca/index_e.asp.

181 Canadian Human Rights Tribunal-About the CHRT-Jurisdiction available at http://www.chrt- tcdp.gc.ca/about/jurisdiction_e.asp.

182 Canadian Human Rights Tribunal-About the CHRT-Operations available at http://www.chrt- tcdp.gc.ca/about/operations_e.asp.

183 Id.

184 Canadian Human Rights Tribunal-About the CHRT-Our Mission available at: http://www.chrt- tcdp.gc.ca/about/index_e.asp.

185 Id.

186 Id.

187 An online search of the Canadian Human Rights Tribunal Web site’s archive using the term “hate propaganda” yielded 15 decisions on hate speech matters. “Internet” yielded ten cases, three of which were directly related Internet hate speech.

188 R. v. Zündel, [1992] 2 S.C.R. 731.

189 Citron and Toronto Mayor’s Committee v. Zündel, [2002] CHRD No. 1 (C.H.R.T.).

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to expose a person or group of person to “hatred or contempt.” 190 The Human Rights

Commission referred the case to the Tribunal in 1996 when the Toronto Mayor’s

Committee on Community and Race Relations filed a complaint with the Commission alleging Zündel had posted hate messages on a Web site.191 It took eight years for the

Tribunal to reach a final decision due to several motions by the defendant to dismiss.

Each motion was denied but subsequently appealed in the federal courts. Zündel lost each appeal.

Based on the Human Rights Act, the two-member Tribunal had to determine if

Ernst Zündel has used “telephonic communication” that was likely to expose Jews to hatred or contempt.192 Unlike the case where the Supreme Court previously ruled that

Zündel had a right to publish a pamphlet questioning the existence of the Holocaust, in this case the Toronto Mayor’s Committee accused Zündel of violating the country’s

Human Rights laws with alleged anti-Semitic content he posted on a Web site.193 The

Tribunal ruled that, as the owner and publisher of the Web site, Zündel violated the

Section 13(1) of the Human Rights Act and ordered him to cease publishing.194 The

“Zündelsite” questioned the historic details of the Holocaust. For example, on the Web

190 Id. Section 13(1) of the Human Rights Act states: “It is discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those person are identifiable on the basis of a prohibited ground of discrimination.” Section 3(1) of the law also states that no Canadian can be discriminated against based on race, nation or ethnic origin, color, religions, age, sex, sexual orientation, marital status, family status, disability, or conviction for which they may have received a pardon.

191 Supra note 189 at 2.

192 Id.

193 Id. at 2.

194 Id. at 101.

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site, Zündel claimed: “The fact is that the Jewish Lobby – or the Israeli Lobby, as some

like to call it – have long had a deliberate policy of lying to non-Jewish Americans. They

lied to us about Hitler and about National Socialist Germany, because they wanted

America to go to war with Hitler to destroy this threat to their schemes.”195

In order to determine if Zündel violated Section 13(1) of the Human Rights Act,

the Tribunal had to ensure that all portions of the law applied to the case. First, it had to

determine if Zündel himself controlled the editorial content of the Web site. Secondly,

the Tribunal had to determine if the Web site was a source for telephonic-based

communication. Finally, the Web site’s content had to contain material that would

expose a person or group of people to hatred or contempt. In all three areas, the Tribunal

took testimony from experts and ruled that the Web site violated the law. It interviewed

individuals who operated the Web site and testified that Zündel edited the content and

was responsible for its views.196 The Tribunal then interviewed individuals who were in

the telecommunications industry who stated that the backbone of the Internet

infrastructure is based on telephone lines.197 The testimony by telecommunications

experts was needed so the Tribunal could understand the technological infrastructure of

the Internet. The Tribunal then interviewed experts who study language and anti-

195 Id. at 2. Zündel also stated that “Until now, the ‘Holocaust’ story and their stranglehold on the media in many parts of the world have them immune, so far, from exposure-but now their defenses are crumbling, for every day brings to light more misdeeds, more con games, more insider trading, more lies and more cheating - and more crimes against the Germans, Palestinians, the Lebanese, the Iraqis, and the hapless Russians during their Bolshevik reign of terror and destruction there.”

196 Id. at 12.

197 Id. at 33.

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Semitism in order to determine if the Web site’s contents were anti-Semitic and likely to

expose Canada’s Jewish population to hatred or contempt.198

Part of the Tribunal’s decision included whether Section 13(1), as applied in this

case, was a violation of Section One of the Canadian Charter of Rights and, if so, whether

it was permissible under the Oakes Test.199 The Tribunal determined that Section 13(1) was a law that was “sufficiently important” to warrant limiting a Charter right.200 It also ruled that the law was well suited to carry out its objective and did so in a manner not

“needlessly or unacceptably severe.”201 In the decision, Claude Pensa, the Chairperson of the Tribunal, stated that:

“S.13(1) is rationally connected to the aim of restricting activities antithetical to the promotion of equality and tolerance in society…s.13(1) operates to suppress hate propaganda and its harmful consequences, and hence is rationally connected to furthering the objective sought by Parliament.”202

Pensa cited the Supreme Court’s decisions in Taylor and Keegstra when he said

there are limits to freedom of expression when victims are placed at risk by hate

speech.203 He said this limit to free expression includes hate propaganda posted on the

Web.204

198 Id. at 42.

199 R.v. Oakes, [1986] 1 S.C.R. at 141.

200 Supra note 198 at 79.

201 Id.

202 Id.

203 Id.

204 Id.

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Pensa stated that technology does not have an impact on the importance of a law

such as Section 13(1).205 The Internet is capable of spreading the same kind of hate propaganda that the Supreme Court restrained under Section 13(1) in the Taylor telephone messages case.206 Pensa said the Human Rights Act attempts to prevent

messages of hatred and contempt aimed at identifiable individuals and groups: “Once it is

accepted that hate propaganda is antithetical to Charter values, the means of

expression…is not a controlling factor so long as it is within the constitutional

jurisdiction of Parliament.”207 The Tribunal concluded that restricting Zündel’s free

speech rights on his Web site was “reasonable” and “justified” in a free and democratic

society.208

Mark Schnell v. Machiavelli and Associates Emprize Inc. and John Micka

After the Tribunal ruling that Zündel’s Internet hate propaganda violated the

Canadian Human Rights Act, a one member Tribunal decided a second Internet hate

propaganda case in August 2002.209 In April 1999 and March 2000 Mark Schnell, a 34 year-old gay man living in Vancouver, British Columbia filed separate complaints against

Machiavelli and Associates Emprize Inc. and one of its employees, John Micka, for discriminating against him and other homosexuals.210 Schnell accused the company and

its employee of posting messages on its Web site, Citizen Research Instrument, that were

205 Id.

206 Id.

207 Id. at 81.

208 Id. at 82.

209 Schnell v. Machiavelli Associates Emprize Inc., [2002] CHRD No. 11 (C.H.R.T.).

210 Id.

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anti-homosexual.211 The Web site also had links to other Web sites including newspapers articles, court records, and other public documents.212 For example, the Web site equated

homosexuality with pedophilia and bestiality, depicting homosexuals as having an

agenda of abusing children.213 It also included statements such as: “In a perfect world

Government pension benefits for same sex “couples” might be considered/In a perfect

world there would not be any same sex ‘couples.’”214

Tribunal Chair J. Grant Sinclair stated that the Web site operated by Micka

discriminated against homosexuals and exposed them to possible hatred and contempt.215

He interviewed two experts on homosexuality to determine if Micka’s writings posed a danger to Canada’s gay community.216 The two stated that anyone who read the Web site’ contents could be under the impression that gay and lesbians are pedophiles.217 The experts agreed that Micka’s content could lead a reader to believe that there is a link

211 Id.

212 Id. at 6.

213 Id. at 2.

214 Id. More writings included: “WARNING! This site contains material that is deemed offensive by homosexual pedophiles and the Canadian Human Rights Commission/Tribunal.”

“Welcome to Beautiful British Columbia: Haven for n.d. peeyers, homosexuals and pedophiles—The province most accepting of an ‘alternative lifestyle’, and Vancouver the city of ‘light and the loafers.’”

“QUESTION-are all homosexuals pedophiles or all pedophiles homosexual? ANSWER-YES.”

“QUESTION-are all homosexuals pedophiles school teachers? ANSWER-NO! some are ‘men of the cloth’, scout leaders and coaches.”

215 Id. at 27.

216 Dr. Barry Adam is Professor in the Department of Sociology and Anthropology at the University of Windsor. Jennifer Hargos is the Program Coordinator for Youth Services at the Community Centre Serving and Supporting Lesbian, Gay, Transgendered, Bi-Sexual People and their Allies. No location for the center was in the record.

217 See Schnell, C.H.R.T. at 22.

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between homosexuality and pedophilia.218 The expert testimony led Sinclair to state that

the Web site’s materials “reiterate the notion that the homosexual lifestyle involves sex

with children and again ties this lifestyle directly to the homosexual community. And it

goes one step further, associating homosexuality with bestiality.”219

Sinclair ruled that the Web site’s contents violated Section 13(1) of the Human

Right Code by identifying the homosexual community and subjecting them to “extreme

ill will or detestation.”220 Sinclair stated that Micka’s writings could also endanger

homosexuals for portraying them as having “no redeeming qualities.”221

Micka, in his defense, argued that despite his own views about homosexuals, the

Web site was not a source of information to be communicated to the public and,

therefore, not in violation of 13(1) of the Human Rights Code which makes it illegal to

expose a person or group of community to hate propaganda. He claimed it was his

personal venue for writing his own personal beliefs and not meant to be seen by the

public. The Tribunal disagreed, stating the Web site contained a sign-in guest book that

invited visitors to give their comments and tell others about it.222 Visitors from around the world viewed the Web site and interacted with Micka through the guest book.223

Sinclair stated that the Internet is used for large-scale public messages in order to

218 Id. at 25.

219 Id. at 26.

220 Id.

221 Id.

222 Id. at 32.

223 Id.

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disseminate certain ideas and opinions to the public.224 The Tribunal ruled that when

Micka published his opinions about homosexuals on a Web site, it was for public use

with the intent of arousing public anger.225 It ordered Micka to pay Schnell $20,000

(Canadian) in damages and to delete the offending material off the Web site.226

Richard Warman v. Fred Kyburz

In May 2003 a three member Tribunal decided Warman v. Fred Kyburz the

tribunal’s most recent case on Internet hate propaganda.227 In February 2002 Richard

Warman, an attorney living in Ottawa, Canada, filed a complaint with the Human Rights

Commission alleging that Fred Kyburz communicated messages through the Internet that exposed the Jewish community to hatred or contempt in violation of Section 13(1) of the

Human Rights Act.228 Warman alleged that Kyburz committed this crime on a Web site and Web discussion forum, www.patriotsonguard.com.229 The Web site contained Daily

Information Pages which were copies of articles obtained from other sources followed by

Kyburz’s editorial comments about the articles.230 Several of the postings targeted

Ashkenazi (European) Jews with term such as “blood Jews.”231 While maintaining he

224 Id.

225 Id. at 33.

226 Id. at 41.

227 [2003] CHRD No. 18 (C.H.R.T.).

228 Id.

229 Id. at 5. The Web site stated that Patriots on Guard is an organization “dedicated to alerting the public about the travesties against people’s rights and freedoms, specifically by the courts and law enforcement agencies in Canada, and worldwide.”

230 Id.

231 Id. Kyburz also stated: “I am not against Jews. I am against some of the practices of these Ashkenazi Jews. They are the ones who propagate all the violence.” He stated he was not against the Jewish religion:

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was not Anti-Semitic he wrote: “They are the designers of our present usurious money

system that brings so much hardship and destruction. They are the ones in control of the

mainstream media disseminating lies and misinformation.”232 He also stated: “They are the ones who are the driving force behind the United Nations. They are the ones who are in control of the filth in the movie industry. Communism, terrorism, war and Ashkenazi

Jew are synonymous.”233

Before filing his complaint with the Human Rights Commission, Warman had

complained to Kyburz’s Internet Service Provider about the alleged anti-Semitic content

of the Web site, and the ISP discontinued the service sometime in December 2001 or

January 2002.234 In retaliation for his Web site being shut down, Kyburz launched an electronic bulletin board through a different ISP where messages could be posted and viewed.235 Kyburz used this as a tool for attacking Kyburz and continued his anti-

Semitic commentary. Warman then initiated his complaint to the Human Rights

Commission which, in turn, immediately forwarded it to the Tribunal.

The Tribunal found Kyburz guilty of violating Section 13(1) of the Human Rights

Act.236 The Tribunal determined that Kyburz was directly responsible for writing his editorials and the providing the online links to articles he posted. In the Tribunal’s

“Again I want to repeat that there are decent Jews, even Ashkenazi Jews. We have to be careful not to attack the Jews but their nefarious actions, and to expose the particular individuals who commit such nefarious actions.” Despite claiming he is not anti-Semitic, he warned his readers: “If the good Jews do not denounce the bad Jews (Ashkenazi), they share the guilt!”

232 Id.

233 Id.

234 Id. at 4.

235 Id. at 19.

236 Id. at 29.

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opinion, Chair Anne L. Mactavish stated that “discriminatory practice is made out when a

respondent communicates matter that is likely to expose a person or person to hatred or

contempt by reason of the fact that they are identifiable on basis of the prohibited ground

of discrimination.”237

Using expert testimony from a psychologist who studies racism and anti-

Semitism, the Tribunal agreed with Warman that Kyburz’s Web site could expose the

Canadian Jewish community to possible hatred and contempt.238 The Tribunal found him guilty of attempting to discriminate against Jews of European ancestry on the basis of religion and national and ethnic origins.239 As a result of the Tribunal’s findings, Kyburz had to stop disseminating his messages through his Web forum.240 He was also fined

$7,500 and had to pay an additional $15,000 in punitive damages to Warman for using the Web forum as a communications platform for threatening him.241

Conclusion

As discussed in this chapter, four Canadian laws ban hate propaganda. The country’s Criminal Code forbids hate propaganda in a public forum as a means of exposing an individual or groups to hatred or contempt.242 It also criminalizes speech that espouses incitement to a breach of the peace and speech that promotes genocide

237 Id. at 8.

238 Id. at 14. The Tribunal interviewed Dr. Karen Mock, a Psychologist, who researched discrimination, anti-Semitism, race, and hate materials.

239 Id. at 16.

240 Id. at 39.

241 Id.

242 Offenses Against the Person and Reputation, R.S.C. 1985, ch. C-46,§319 (2) (2004).

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against a group.243 Canada’s Human Rights Act further limits speech that may expose an individual or group of people to discrimination.244 Under this law, hate propaganda is a

form of discrimination. Since 2001 the Human Rights Act specifically bans the use of

the Internet for posting hate messages.245

The Supreme Court has upheld the constitutionality of these laws when applied to

oral, print, and telephone hate propaganda.246 Regardless of the communications

methods for how hate propaganda is conveyed, the Court has been consistent in stating that the federal laws are constitutional according to Section One of the Charter even though they conflict with Section Two’s right to free speech. Section One guarantees freedom of religion, press, expression, thought, and belief, “subject only to such reasonable limits prescribed by laws as can be demonstrably justified in a free and democratic society.”247 Section Two focuses on speech issues guaranteeing each

Canadian “freedom of thought, belief, opinion, and expression including freedom of the press and media of communication.”248

In all the Court cases regarding a potential limit on free speech, the Supreme

Court has used the Oakes test to determine if the law limits a freedom as little as possible.

In Keegstra and Andrews the Court determined that Section 319(2) of the Criminal Code

243 Offenses Against the Person and Reputation, R.S.C. 1985 ch. C-46,§319(1) (2004) and Offenses Against the Person and Reputation, R.S.C. 1985, ch. C-46,§318 (4) (2004).

244 Canadian Human Rights Act, R.S.C. 1985, ch. H-6, §13 (1) (2004).

245 Canadian Human Rights Act, R.S.C. 1985, ch. H-6, §13(2) (2004).

246 See R. v. Keegstra, [1990] 3 S.C.R. 697, R. v. Andrews, [1990] 3 S.C.R.870, and Canada v. Taylor, [1990] 3 S.C.R. 892.

247 CAN.CONST. (Constitution Act, 1982) pt. I (Canadian Charter of Rights and Freedoms),§1.

248 Id. at §2 (b). Unlike Section One, Section Two does not mention the term “reasonable limits.”

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is a constitutional limit on free speech. It passed the Oakes test because it is a minimal

impairment of free expression. In Taylor the Court upheld Section 13(1) of the Human

Rights Act. The law’s use of the terms “hatred” and “contempt” are sufficiently narrow

to limit what type of speech is outside the protection of the Charter of Rights.

In addition to the Court upholding portions of the Canadian Criminal Code

pertaining to bans on publicly promoting hate propaganda, the Human Rights Tribunal

has reviewed three Internet-based hate propaganda cases.249 The Tribunal based its

decisions on Section 13(1) of the Human Rights Act that ban telephone-based hate

propaganda. It its first decision on Internet hate propaganda, it used the Supreme Court’s

Taylor decision as the basis for ordering a Web site shutdown. In Taylor the Court ruled

that Section 13(1) of the Human Rights Act that banned telephone-based hate propaganda

was Constitutional, and the Tribunal has relied on that decision for its later rulings.

The Tribunal, in its first two decisions – in 2002 – relied on Section 13(1) of the

Human Rights Act. In its 2003 Warman v. Kyburz decision the Tribunal also used

Section 13(2) of the Human Rights Act that bans using the Internet for hate propaganda.

In all three Tribunal’s decisions it ordered Internet Service Providers to shut down Web

sites because they discriminated against a group of people with the possibility of

exposing them to hatred and contempt.

The emphasis of the Supreme Court and Human Rights Tribunal rulings focus on

limiting an individual’s or organization’s right to free speech in order to preserve

Canadian democracy for all its citizens, and the rights and personal security that go with

249 See Citron and Toronto Mayor’s Committee v. Zündel, [2002] CHRD No. 1 (C.H.R.T.), Schnell v. Machiavelli Associates Emprize Inc., [2002] CHRD No. 11 (C.H.R.T.), and Warman v. Fred Kyburz, [2003] CHRD No. 18 (C.H.R.T.).

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democracy. Canadian legal institutions have affirmed that Section One of the Charter

allows for a limitation on Section Two rights when it can be “reasonably justified” in a

democratic society. This justification is based on protecting the rights of minority groups

in order to allow them to fully participate in Canada’s democracy. The Court and the

Tribunal agree that, in a democracy, everyone is entitled to respect and equality, especially any group who is at risk of being the targets of discrimination.

CHAPTER 5 CONCLUSION

This dissertation has shown that both the United States and Canada have laws banning hate speech and threats on the Internet.1 Despite both countries’ legislatures amending their hate speech and threats laws to include online communication, they have tackled the issue with different priorities. The United States and Canada have two different philosophical approaches to the conflict between values of free expression and the potential damage by antagonistic expression aimed at specific ethnic and religious communities and individuals who are a part of those groups. That difference impacts how the two countries regard what speech can be banned from the public arena. Dating back to the early Twentieth Century, the U.S. Supreme Court has told Congress the boundaries for when speech is no longer protected by the First Amendment. In contrast, in Canada, with its current 24-year-old Constitution, its Supreme Court has, in several hate propaganda decisions, usually deferred to Parliament’s legislative intent for when speech is no longer constitutional.

1 In the United States Congress has passed the following laws: 18 U.S.C. § 875 (2005) Title 18 Crimes, Extortions, and Threats; 47 USCS§223(a)(C)-(E) (2005). Title 47 Telegraphs, Telephones, and Radiotelegraphs – Chapter 5 Wire or Radio Communication Common Carriers, Common Carrier Regulation; and 47 USCS§230(c)(2)(2005) Title 47 Telegraphs, Telephones, and Radiotelegraphs – Chapter 5 Wire or Radio Communication Common Carriers, Common Carrier Regulation. In Canada the Parliament has passed the following laws: Offenses Against the Person and Reputation, R.S.C. 1985, ch. C- 46, §319 (2) (2004); Offenses Against the Person and Reputation, R.S.C. 1985 ch. C-46,§319(1) (2004); Offenses Against the Person and Reputation, R.S.C. 1985, ch. C-46,§318 (4) (2004); Canadian Human Rights Act, R.S.C. 1985, ch. H-6, §13(2) (2004); and Canadian Human Rights Act, R.S.C. 1985, ch. H-6, §13 (1) (2004).

170 171

Despite their different philosophical approaches to interpreting the hate speech and threats laws, both countries’ Supreme Courts have laid down precedents for when speech no longer receives protection.2 In the United States the Court in R.A.V. v. St.

Paul3 ruled that content-based restrictions are unconstitutional, but in Brandenburg v.

Ohio4 and Virginia v. Black5 it ruled that speech loses its First Amendment protection at the point it incites to violence, threatens an individual with imminent violence, or intimidates its victim. In contrast, in Canada, the Court in R. v. Keegstra,6 R. v.

Andrews,7 and Canada v. Taylor,8 upheld Parliamentary laws that ban public hate speech aimed at placing an individual or community in potential danger.9 Unlike U.S. law,

Canadian law does not require that violence be imminent in order to ban hate speech.

Rather, Canadian law bans hate speech if it might expose an individual or community to

2 For U.S. Supreme Court cases see Chaplinsky v. New Hampshire, 315 U.S. 568 (1942); Brandenburg v. Ohio, 395 U.S. 444 (1969); R.A.V. v. St. Paul, 505 U.S. 377 (1992); and Virginia v. Black, 538 U.S. 343. (2003).

For Canadian Supreme Court cases see R. v. Keegstra, [1990] 3 S.C.R. 697; R. v. Andrews, [1990] 3 S.C.R.870; Canada v. Taylor, [1990] 3 S.C.R. 892; and R v. Zündel, [1992] 2 S.C.R. 731.

3 505 U.S. 377 (1992).

4 395 U.S. 444 (1969).

5 538 U.S. 343. (2003).

6 [1990] 3 S.C.R. 697.

7 [1990] 3 S.C.R.870.

8 [1990] 3 S.C.R. 892.

9 In its decisions, the Canadian Supreme Court ruled that a major part of preserving Canadian democracy is protecting individuals and minority groups who may be exposed to potential hatred and contempt from public hate propaganda. In the cases the Court ruled that despite violating Section 2(b) of the Charter, the federal hate propaganda laws do not violate Section 1 of the Charter. Section 1 of the Charter guarantees “freedom of religion, press, expression, thought, and belief, “subject only to such reasonable limits prescribed by laws as can be demonstrably justified in a free and democratic society.” Section 2(b) guarantees “freedom of thought, belief, opinion, and expression including freedom of the press and media of communication.”

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hatred and contempt. Before understanding the two countries’ laws on hate speech and

its implications for the Internet, the specific federal statutes and the Supreme Court cases

need to be compared.

This chapter will begin with an overall analysis of the American and Canadian

legislative laws banning Internet-based hate speech and threats. It will then provide an analysis of how the two Supreme Courts ruled on hate speech cases. From these Court rulings, developed a legal foundation for how lower federal appeals courts and administrative bodies should interpret the constitutionality of online hate speech and threats.10 Based on the discussion of the legislative initiatives and federal appeals court rulings, the chapter will then discuss the two countries’ overall laws on Internet-based hate speech. From that analysis the chapter will then answer this dissertation’s Research

Questions:

• What Have the Federal Legal Institutions of the United States and Canada Told Us About the Law Governing Hate Speech Disseminated on the Internet?

• What Have the Federal Legal Institutions Told Us that Will Help Explain the Differences on Internet Hate Speech Between the Two Countries?

• What are the Things We Can Learn by Examining How Two Different Countries Legally Approach Internet Hate Speech?

The chapter will conclude with a final summary of the dissertation’s findings and potential topics for future research.

10 For American federal appeals court decisions see Planned Parenthood of the Columbia/Willamette, Inc. v. ACLA, 290 F. 3d 1058 (9th Cir. 2002 en banc) and U.S. v. Newell, 309 F.3d 396 (6th Cir. 2002). For Canadian Human Rights Tribunal Cases see Citron and Toronto Mayor’s Committee v. Zündel, [2002] CHRD No. 1 (C.H.R.T.); Schnell v. Machiavelli Associates Emprize Inc., [2002] CHRD No. 11 (C.H.R.T.).; and Warman v. Fred Kyburz, [2003] CHRD No. 18 (C.H.R.T.).

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Legislation to Ban Hate Speech

In Chapter Two this dissertation analyzed how the U.S. and Canada, with regard

to Internet-based communications, have amended their laws to include advancements in

communication technology. In Canada the Parliament, in 2001, amended the Human

Rights Act to criminalize the use of the Internet to spread hate propaganda against

individuals and minority groups.11 In the United States, the 1996 Telecommunication

Act extended telephone-based threats and harassment provisions to the Internet by using the term “telecommunications device.”12 Despite both countries’ legislatures updating their laws for the Internet age, the fundamental differences in the two countries’ laws are that the Canadian law focuses on protecting groups and communities from hate speech- based discrimination, whereas, U.S. law is based on protecting the individual from threats that could lead to physical harm. The American law does not place limits on hate expression as long as it does not harm, threaten, or intimidate an individual.

As discussed in Chapter Three, two separate U.S. laws criminalize threats made against an individual in interstate commerce and by the use of a “telecommunications device.”13 The federal law on extortion and threats makes it a crime to threaten a person

11 Canadian Human Rights Act, R.S.C. 1985, ch. H-6, §13(2) (2004). Section 13(2) of the Canada Human Rights Act states that Section 13(1) applies “in respect of a matter that is communicated by means of a computer or a group of interconnected or related computers, including the Internet, or any similar means of communication, but does not apply in respect of a matter that is communicated in whole or in part by means of the facilities of a broadcasting undertaking.”

12 Supra note 1.

13 See 18 U.S.C. § 875 (2005) Title 18 Crimes, Extortions, and Threats states: “Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.” 47 USCS§223(a)(C)-(E) (2005) Radiotelegraphs – Chapter 5 Wire or Radio Communication Common Carriers, Common Carrier Regulation states: “Whoever…in interstate or foreign communications--makes a telephone call or utilizes a telecommunications device, whether or not conversation or communication ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person at the called number or who receives the communications…makes or causes

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with harm in interstate communications. The 1996 Telecommunications Act makes it illegal to use Internet communications to threaten a person. Neither of these laws is aimed at hate speech directly, but rather threats against an individual. The law banning threats in interstate commerce has successfully been applied to electronic mail (e-mail).14

Another provision from the 1996 Telecommunication Act also exempted Internet

Service Providers (ISPs) from being held liable if threats or defamatory material are

placed on their communications services such as Web sites, chat rooms, or e-mail.15 The lower federal appeals courts have applied the law and not allowed ISPs to be prosecuted

if threats or defamatory materials are posted on their Internet services.16

In Chapter Four, this dissertation analyzed federal Canadian laws banning public

hate propaganda. The Canadian Criminal Code expressly criminalizes several forms of

hate propaganda. Unlike the U.S. laws aimed at restricting threats against individuals,

Section 319(2) of the Criminal Code forbids publicly promoting hatred against any

“identifiable” group.17 It also outlaws publicly advocating or promoting genocide against

the telephone of another repeatedly or continuously to ring, with intent to harass any person at the called number; or…makes repeated telephone calls or repeatedly initiates communication with a telecommunications device, during which conversation or communication ensues, solely to harass any person at the called number or who receives the communication….”

14 U.S. v. Newell, 309 F.3d 396 (6th Cir. 2002).

15 47 USCS§230(c)(2)(2005) Title 47 Telegraphs, Telephones, and Radiotelegraphs– Chapter 5 Wire or Radio Communication Common Carriers, Common Carrier Regulation states that “No provider or user of an interactive computer service shall be held liable on account of…any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”

16 See Zeran v. America Online, 129 F.3d 327 (4th Cir. 1997) and Green v. AOL, 318 F.3d 465 (3rd Cir. 2003).

17 Offenses Against the Person and Reputation, R.S.C. 1985, ch. C-46,§319 (2) (2004). It is a crime for “Every one who, by communicating statements, other than in private communication, willfully promotes hatred against any identifiable group is guilty of

175 a group based on several factors including race, color, religion, and sex.18 Section 319

(1) of the Criminal Code also forbids public hatred against a group of people that may lead to incitement to violence.19 In Keegstra, Andrews, and Taylor, the Canadian

Supreme Court upheld Section 319(2) of the law as constitutional within the confines of

Section One of the Charter.20

In addition to the Criminal Code, in 1977 Parliament passed into law the

Canadian Human Rights Act. Section 13(1) of the Human Rights Act outlaws

discrimination based on several characteristics such as race, religion, and sex.21 The definition of discrimination includes publicly promoting hate propaganda against an individual or group with the goal of the victim not being treated equally with other

Canadians.22 As already noted, in 2001 Parliament amended the Human Rights Act to specifically include Internet-based hate propaganda.23 The Human Rights Tribunal has

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or

(b) an offense punishable on summary conviction.

18 Offenses Against the Person and Reputation, R.S.C. 1985, ch. C-46,§318 (4) (2004).

19 Offenses Against the Person and Reputation, R.S.C. 1985, ch. C-46,§319 (1) (2004).

20 See R. v. Keegstra, [1990] 3 S.C.R. 697; R. v. Andrews, [1990] 3 S.C.R.870; and Canada v. Taylor, [1990] 3 S.C.R. 892.

21 Canadian Human Rights Act, R.S.C. 1985, ch. H-6, §13(1) (2004).

22 Canadian Human Rights Act, R.S.C. 1985, ch. H-6, §2 (2004). The purpose of the Human Rights Act is “to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted.”

23 Supra note 11.

176 used Section 13(1) in its rulings to determine if a Web site discriminated against a person or group.24

When comparing the nature of the federal laws in the United States and Canada, the Canadian statutes – including the Human Rights Act – that prohibit hate speech against individuals and groups are based on factors such as race, religion, and sex. The

U.S. laws do not criminalize threats based on these same categories. Rather, they prohibit repeated threats by one individual against another. The American laws do not focus on protecting groups or communities of individuals but rather individuals. Both countries seek to protect individuals from violence, but the Canadian laws focus on hate speech as a form of discrimination based on religion, ethnicity, race, etc., whereas, the

American laws do not equate discrimination with hate speech. In the United States, hate speech that is aimed at an individual or group based on their race, religion, profession, or political affiliation is legal. Threats and harassments aimed at a specific victim are not protected by the First Amendment.

U.S. and Canadian Supreme Court Rulings on Hate Speech

Just as there are differences in the American and Canadian legislative statutes on hate speech and threats, there are also differences in how the two countries’ Supreme

Courts have ruled on the constitutionality of hate propaganda and speech laws. As discussed in Chapter 3, the U.S. Supreme Court’s rulings protecting speech under the

First Amendment have evolved for over 85 years. Initially, with the “clear and present danger” cases from the 1920s to the 1950s, the Court ruled that speech can be limited if it

24 See Citron and Toronto Mayor’s Committee v. Zündel, [2002] CHRD No. 1 (C.H.R.T.); Schnell v. Machiavelli Associates Emprize Inc., [2002] CHRD No. 11 (C.H.R.T.); and Warman v. Fred Kyburz, [2003] CHRD NO. 18 (C.H.R.T.).

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poses a “clear and present danger” to the government. In Schenck v. U.S.25 and Abrams

v. U.S.,26 the Court ruled that speech that presents a clear and present danger to the

government can be restricted. The Court worried about “substantive evils” arising from

speech that aimed at disrupting the U.S. government. In Dennis v. U.S.,27 the Court upheld a law that punished anyone who distributed materials that advocated the overthrow of the U.S. government. In 1957 in Yates v. U.S.,28 the Court backed away from outlawing advocacy to overthrow the government. It ruled that advocating the overthrow of the government as an abstract principle is protected speech. After Yates, teaching advocacy to overthrow the government without a specific intent is legal and protected by the Constitution.

The Court, in its different speech-related cases, has always seemed to be concerned with the potential for violence and disorderly conduct arising from speech.

For example in its decisions on student speech rights in Tinker v. Des Moines

Independent Community School District29 and Healy v. James,30 the Court ruled that students have a First Amendment right to free speech as long as their actions do not disrupt the classroom or campus. In its emphasis on speech leading to violence, in

Chaplinsky v. New Hampshire,31 the Court in 1942 ruled that there are at least some

25 249 U.S. 47 (1919).

26 250 U.S. 616 (1919).

27 341 U.S. 494 (1951).

28 354 U.S. 298 (1957).

29 393 U.S. 503 (1969).

30 408 U.S. 169 (1972).

31 315 U.S. 568 (1942).

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categories of speech, such as profanity and fighting words, which lack First Amendment

protection because they can incite to violence. The Court said that these categories of

speech are narrow and well defined because they have “slight social value.”32

In 1952 the Court seemed to move in the direction of outlawing hate speech. In

Beauharnais v. Illinois 33 the Court upheld an Illinois law that prohibited group libel that

could lead to a breach of peace. The definition of group libel as used in the Illinois

statute is what is considered by today’s standards “hate speech.” The law prohibited the

selling, manufacturing, publishing, or advertising of any picture or lithography that criticized anyone based on race, color, creed, or religion. Based on the Court’s decision, for a brief time state laws that banned group libel because it could lead to violence were constitutional. In 1966 the Court backed away from this approach. In Ashton v.

Kentucky34 it unanimously overturned a Kentucky libel law that punished conduct designed to create public disturbances. Saying the Kentucky law was vague because it was not narrowly drawn to prevent a specific violent encounter, the Court said similar laws would allow local and state authorities to determine when a libelous act could be prone to violence without some kind of uniform standard.35 The Ashton decision essentially nullified the applicability of the Court’s Beauharnais ruling.

In a ruling on political speech that could lead to violence, in 1969 in Brandenburg v. Ohio36 the Court decided that any speech statute must distinguish between advocacy

32 Id. at 573.

33 343 U.S. 250 (1952).

34 384 U.S. 195 (1966).

35 Id. at 200.

36 395 U.S. 444 (1969).

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and preparing for violence that will lead to imminent violence. Speech can only be

limited if violence is imminent.37 In order to know when speech violates the First

Amendment, the Court provided a four-part test. The answers to the following four

questions help a court determine when speech is no longer protected. In the first part of

the Brandenburg test, advocacy, words that inform an audience about a speaker’s beliefs,

is legal.38 The second part is whether the speech is directed toward leading to incitement.

This is speech that goes beyond mere advocacy. If the defendant is aware only that his

words will incite illegal action but does not have the incitement in mind as his purpose,

his speech is protected.39 If the speaker knows his words will likely trigger an illegal action, then the speech is not protected.40 The third part of the test is imminence. It means a very short time before the violence occurs.41 The violence would have to occur

nearly immediately after the actual spoken words or the speech’s conclusion, meaning

“right now,” for the speech not to be protected. The final part of the Brandenburg test is

the illegal action produced by speech. When the illegal action takes place, there are no

free speech controversies.42

With a test in hand to determine when any speech, including hate speech, loses its

First Amendment protection, the Court examined content-based speech restrictions of

37 Id.

38 Id.

39 Id.

40 Id. at 449.

41 Id. at 434.

42 Id.

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hate speech in R.A.V. v. St. Paul43 in 1992. In R.A.V. the Court ruled that the First

Amendment did not permit the government to impose any special content-based

prohibitions on speakers who express views on disfavored subjects.44 It overturned a St.

Paul, Minnesota, statute that would have banned displays with abusive words or symbols based on race, color, creed, religion, or gender. The majority ruled that, while speech on these subjects would have been prohibited, other categories of speech such as sexual orientation, political affiliation, and occupation would not be protected.45 The Court said

that certain categories of speech cannot be limited while others are not. It stated that

even though some expressions may cause hurt feelings or resentment they cannot be

stripped of their First Amendment protection.46

After the Court ruling that content-based restrictions are illegal, in 2003 in

Virginia v. Black47 it decided that a cross cannot be burned to intimidate someone. In this case Black argued that a burning cross is a form of speech. The Court struck down a

Virginia statute that equated all burning crosses as forms of intimidation. It ruled that the conduct could be prohibited when people feel they are victims of the burning cross, but the political or social ideas that accommodate a burning cross are protected.48 The Court noted that there are occasions when a cross is burned as a political expression rather than to intimidate or harass people.

43 505 U.S. 377 (1992).

44 Id. at 381.

45 Id. at 391.

46 Id. at 414.

47 538 U.S. 343 (2003).

48 Id. at 365.

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By focusing on cross burning as intimidation, the Court looked at a form of

speech that was a threat against individuals. In Virginia v. Black, the Court’s ruling

focused on the individual’s fear rather than the political or social message conveyed with

a burning cross. When seen as a threat, a burning cross can inspire fear in its victim with

attempts at coercion.49 The Court explained that fear can change how a person conducts his or her life.

While the U.S. Supreme Court has ruled against any content-based restrictions for speech and, instead, focused on violence and the potential for immediate harm from threats, the Canadian Supreme Court has supported a content-based approach to criminalizing speech. In R. v. Keegstra50 the Court in 1990 upheld the constitutionality of Section 319 (2) of the Criminal Code that criminalizes spreading hate speech against any identifiable group. The Court ruled that while the law violated Section Two of the

Charter’s guarantee of freedom of expression, it was still legal under Section One’s

“reasonable limits” on free speech. The substantial harm that could emanate from hate propaganda was important enough to violate Sections Two’s guarantee of freedom of expression and thought. The Court stated that protecting the right to promote hatred against identifiable groups is of “limited importance when measured against free expression values” for all Canadians.51 It also ruled that the Canadian society and

government’s commitment to democratic values for all groups overshadows the right for

one organization to spread hate propaganda.52 In 1990 the Court – in three separate four

49 Id. at 357.

50 [1990] 3 S.C.R. 697.

51 Id. at 763.

52 Id. at 764.

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to three split votes – stated that protecting a right to spread hate propaganda is not vital to a functioning democracy.53

Later that same year, the Court reiterated this commitment to democracy for

minority groups in Canada v. Taylor.54 It supported the decision by the Human Rights

Tribunal to order John Ross Taylor to stop using a telephone answering machine to

spread anti-Semitic statements. It upheld Section 13(1) of the Canadian Human Rights

Act that prohibits using the telephone to spread hate against any identifiable group.55

Using the same reasoning as it did in Keegstra, the Court stated that spreading hate

propaganda by telephone is contrary to furthering equality amongst all Canadian

citizens.56 The overall objective of the Human Rights Act is sufficient enough to place a limitation on free expression as guaranteed by Section Two of the Constitution’s

Charter.57

Taken together, the Court’s rulings in Keegstra and Taylor support the Canadian

Parliament’s objective of fighting prejudice as vital to maintaining a free and democratic

society.58 The Court acknowledged in Keegstra that the existence of hate propaganda in

Canada is “sufficiently substantial to warrant concern.”59 Hate propaganda can lead to

53 Id. at 765.

54 [1990] 3 S.C.R. 892.

55 Id. at 943.

56 Id. at 918.

57 Id. at 919.

58 Keegstra, [1990] 3 S.C.R. at 787.

59 Id. at 746.

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harm against members of a targeted group and society at large.60 Both of these potential harms contradict the Canadian government’s commitment to democracy and freedom for every citizen leading to equality for all.

In supporting Parliament’s approach to banning hate propaganda, the Canadian

Supreme Court has embraced the concept that freedom can be limited if it is for the greater good of Canadian democracy. The Court’s Oakes test allows for a Charter right to be curtailed if the injunction is narrow, sufficiently important, and must be

“reasonable” and “justified” in a democracy.61 Only the Court can make the

determination if a law limiting a Charter right will pass the Oakes test. In its rulings, the

Court believed that limiting hate propaganda meets this burden.

The fundamental difference between the two countries is that the Canadian Court

seeks to protect minority groups from exposure to public hate speech, whereas, the U.S.

Court has maintained that political or social ideological speech directed against any group

is legal as long as it does not incite to violence. For example, based on how the U.S.

Supreme Court has ruled, a statute such as Canada’s Human Rights Act would most

likely not be upheld as constitutional and would, instead, violate the First Amendment as

a content-based restriction.

In the U.S., the Supreme Court has consistently ruled that speech that leads to a

violent act is outside the protective boundary of the First Amendment. Under American

jurisprudence established by the Court, intimidation, harassment, and threats against any

individual are illegal and without First Amendment protection. In Canada in addition to a

60 Id. at 747.

61 R. v. Oakes, [1986] 1 S.C.R. 103 at 139.

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minority group, the individual is protected from hate speech. The laws use both the terms

“individuals” and “persons” when describing who is protected from public hate

propaganda.

Several First Amendment scholars have analyzed the rulings issued by the U.S.

Supreme Court in order to determine if they are applicable for a ban on hate speech

directed at minority groups. University of Oregon Communication Professor Chris

Demaske stated that the Court’s 2003 Virginia v. Black ruling “opens the door” to

limiting some hate speech directed at minority groups.62 Demaske said hate speech can now be restricted in some circumstances when the power relationship between speaker and victim is analyzed. He posited that in Virginia v. Black the Court’s ban on a burning

cross used to intimidate a victim is based on understanding a historic relationship

between a specific speaker and a targeted minority.63 That relationship is one of a burning cross used as a message to scare specific racial, ethnic, and religious minority groups.

In 2000 Quinnipiac University Law School Professor Elizabeth Phillips Marsh stated that under current U.S. Supreme Court doctrine, hate speech is protected at the cost of the victim’s dignity, security, and emotional security.64 She advocated that the Court

modify its Brandenburg test as a guide for prohibiting hate speech. Rather than use the

test for speech that directly incites to immediate violence, the test could be modified to

62 Chris Demaske, Modern Power and the First Amendment: Reassessing Hate Speech, 9 COMM. L. & POL’Y 273, 275 (2004).

63 Id. at 315.

64 Elizabeth Phillips Marsh, Purveyors of Hate on the Internet: Are We Ready for Hate Spam?, 17 GA.ST. U. L. REV. 379, 400 (2000).

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show a “progression or a link” between speaker and any harm that falls on an

individual.65

University of Pittsburg Law Professor Richard Delgado goes back even further and used the Court’s 1942 Chaplinsky v. New Hampshire decision as a guide for prohibiting hate speech.66 Delgado pointed out that in 1942 the Court stated that words

that inflict an injury lack any First Amendment protection.67 He stated that racial insults inflict a psychological injury on the victim.

While these different First Amendment scholars have attempted to influence the

Court’s direction on hate speech, to date the Court has continued to rule that the only speech that can be banned are those words that incite to violence or place the victim in harm’s way from threats and intimidation. Americans have the constitutional right to expression even when that expression includes unpopular or offensive language.

Lower Federal Appeals Courts Rulings

The U.S. Supreme Court’s decisions and the federal laws have impacted how different lower federal appeals courts have ruled on Internet-based threats and harassment. As discussed in Chapter 3, in the Planned Parenthood68 case, the Ninth

Circuit of the U.S. Court of Appeals used the Brandenburg test to rule that the

“Nuremburg Files” Web site that threatened doctors who performed abortions was not

protected by the First Amendment. The doctors’ names, addresses, and telephones

65 Id.

66 Richard Delgado, Words that Wound: A Tort Action, in WORDS THAT WOUND: CRITICAL RACE THEORY, ASSAULTIVE SPEECH, AND THE FIRST AMENDMENT 107 (1993).

67 Id.

68 Planned Parenthood of the Columbia/Willamette, Inc. v. ACLA, 290 F. 3d 1058 (9th Cir. 2002 en banc).

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numbers were listed on the “Nuremburg Files.”69 The appeals court ruled that the Web

site acted like a scorecard because every time a doctor was killed a slash was placed over

their name.70 With the ACLA listing the doctors’ contact information, the court stated

the “Nuremburg Files” passed the Brandenburg incitement test. It said the Web site

could spur a pro-life activist to violence against a doctor.71 The court stated that the Web site went beyond mere advocacy of an idea; it could motivate a pro-life activist to track down doctors and kill them.

A case where a federal appeals court applied one of the anti-threat laws to Internet communication was U.S. v. Newell.72 In Newell, the U.S. Court of Appeals for the Sixth

Circuit upheld the verdict against Tommy Newell for threatening his ex-lover with e-mail

and telephone threats.73 As discussed in Chapter 2, e-mail is a form of Internet communication. Newell had been convicted in federal district court under the interstate anti-threats federal statute, 18 U.S.C. § 875(c). The appeals court upheld Newell’s conviction without commenting on the technology used to convey the threat. The communications technology used to convey the threat was not important to the court’s ruling. The court focused on the threat itself.

In a third case involving online threats, Zeran v. AOL74, the Fourth Circuit of the

U.S. Court of Appeals upheld a federal district court’s verdict that America Online

69 Id. at 1063.

70 Id. at 1065.

71 Id. at 1071.

72 309 F. 3d 396 (6th Cir. 2002).

73 Id.

74 Zeran v. America Online, 129 F.3d 327 (4th Cir. 1997).

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(AOL) was not liable for threats made against Kenneth Zeran. In a prank, Zeran was

identified in an AOL chat room as someone selling t-shirts praising the 1996 Oklahoma

City bombing of the Alfred P. Murrah Federal Building.75 He received hundreds of

threats and sued AOL as the publisher and distributor of the t-shirt message. The appeals

court ruled that AOL was not liable, and it encouraged law enforcement to attempt to

catch and arrest the purveyors of the prank.76 If caught, the court said they would be

prosecuted for violating the 1996 Telecommunications Act’s anti-harassment measures.77

Just as the lower courts in the U.S. have followed the Supreme Court’s guidance

in implementing the Brandenburg test and enforcing legislative anti-threats and

harassment measures on the Internet, in Canada the Human Rights Tribunal has followed

the Canadian Supreme Court’s jurisprudence on banning online hate propaganda. The

Tribunal is an independent, administrative court charged by law with deciding alleged

violations of the Human Rights Act.78 The Tribunal is the federal administrative court that determines if a Web site contains hate propaganda and is in violation of the Canadian

Human Rights Act. The Canadian Human Rights Commission is the governmental body

that refers these cases to the Tribunal.

As discussed in Chapter 4 in 2002 in Citron and Toronto Mayor’s Committee v.

Zündel,79 the Tribunal used the Supreme Court’s 1990 analysis in Taylor to rule that

75 Id. at 329.

76 Id. at 330.

77 47 USCS§223(a)(C)-(E) (2005). Title 47 Telegraphs, Telephones, and Radiotelegraphs – Chapter 5 Wire or Radio Communication Common Carriers, Common Carrier Regulation.

78 Canadian Human Rights Tribunal-About the CHRT-Our Mission available at: http://www.chrt- tcdp.gc.ca/about/index_e.asp.

79 [2002] CHRD No. 1 (C.H.R.T.).

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Zündel’s Web site violated the ban on telephonic-based hate propaganda as stated in

Section 13(1) of the Human Rights Act.80 The Tribunal then used the Supreme Court’s

Oakes test (when a Charter right can be constitutionally denied) to determine that the ban

on Zündel’s Web site was legal in accordance with Section of the Charter. In this case

the Tribunal ruled that Section 13(1) was sufficiently important to warrant limiting a

Charter right.81 In the Supreme Court’s R. v. Zündel82 decision, Zündel had been found

not guilty of publishing false statements about the Holocaust. In the Tribunal’s decision,

Zündel’s Web site was found to violate the Human Rights Act because it exposed the

Jewish community to potential hatred and contempt.

The Tribunal’s decision in Zündel paved the way for its next two decisions on

banning Internet-based hate propaganda. In both the 2002 Schnell83 and 2003 Warman84 cases, the Tribunal ruled that both Web sites contained hate messages in violation of

Section 13(1) of the Human Rights Act. The Tribunal ordered both Web sites shut down because they could place a group or community in danger of attack.85 In both cases, the

Tribunal, echoing the Supreme Court’s ruling in Keegstra, Andrews, and Taylor, stated that the rights and safety of Canadian minority groups are paramount over the right to promote public hate expression by an individual. Yet, the Tribunal’s decision did not

80 Id. at 101.

81 Id. at 79.

82 [1992] 2 S.C.R. 731.

83 Schnell v. Machiavelli Associates Emprize Inc., [2002] CHRD No. 11 (C.H.R.T.).

84 Warman v. Fred Kyburz, [2003] CHRD No. 18 (C.H.R.T.).

85 In Schnell the Tribunal ruled that the Web site operated by Machiavelli and Associates Emprize Inc. negatively portrayed homosexuals and discriminated against them. In Warman, the Tribunal ruled that an anti-Semitic Web site operated by Fred Kyburz could expose the Canadian Jewish community to hatred and contempt.

189 reflect the Supreme Court’s R. v. Zündel verdict because in that case, the Court ruled that publishing false statements is constitutional. In all the three Tribunal decisions, the Web sites went one step further than publishing false statements. They contained statements that could have placed minority groups at risk of hatred and contempt by Canadian society.

Summary of the Laws

This chapter has shown that the United States and Canada have fundamentally different approaches to when hateful and threatening speech can be banned. In the

United States, the First Amendment does not protect threats and harassing messages aimed at the individual where their life could be placed in jeopardy. It does, however, protect political and sociological speech that denigrates groups. This chapter has also discussed that the Canadian Constitution’s Charter of Rights does not protect public hate propaganda aimed at groups of people and individuals who could be subjected to intolerance by society. Both countries, in crafting their laws for online communications, have updated older laws that were originally meant for telephone and oral expressions.

As discussed in Chapter Two, the Internet is used for several forms of communication including the World Wide Web, e-mail, chat rooms, and instant messaging. The American laws against online threats have been applied by the federal courts to the World Wide Web and e-mails. The ban would also apply to chat rooms and instant messaging. The courts, in their rulings, have shown that it is the threat that is paramount and not the technology used to convey them. In Canada, the Human Rights

Act was amended in 2001 to include the Internet when communication is conveyed among different computers. Parliament simply extended its other, previous hate

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propaganda bans to the Internet. The Human Rights Tribunal has applied Parliamentary

laws in its rulings on hate-based Web sites.

Research Questions

Based on the dissertation’s data and analysis, this dissertation’s objective was to

answer the following Research Questions:

What Have the Federal Legal Institutions of the United States and Canada Told Us About the Law Governing Hate Speech Disseminated on the Internet?

When the U.S. Congress passed into law the Telecommunications Act of 1996, it

criminalized using the Internet to threaten and harass an individual.86 Another federal statute that prohibits extortion and threats makes it illegal to threaten to harm an individual in interstate communications.87 It has been successfully applied by a federal

appeals court to e-mail threats.88 While the U.S. Supreme Court has not issued a ruling pertaining to Internet-based hate speech, what guidance the Court has given us for when speech on the Internet can be restricted comes from its 1996 Reno v. ACLU 89 ruling.

While not related to hate speech, the Court’s ruling does provide a general template for when online speech can be restricted. In Reno the Court said that any attempt to curb online speech will have to be narrowly tailored to meet a specific governmental objective.

Any legislation attempting to curb Internet speech cannot eliminate a vast array of legally protected content. Any legislation that attempts to curb hate speech or threats on the

86 47 USCS§223(a)(C)-(E) (2005). Title 47 Telegraphs, Telephones, and Radiotelegraphs – Chapter 5 Wire or Radio Communication Common Carriers, Common Carrier Regulation and 47 USCS§230(c)(2)(2005) Title 47 Telegraphs, Telephones, and Radiotelegraphs – Chapter 5 Wire or Radio Communication Common Carriers, Common Carrier Regulation.

87 18 U.S.C. § 875 (2005) Title 18 Crimes, Extortions, and Threats.

88 See U.S. v. Newell, 309 F. 3d 396 (6th Cir. 2002).

89 521 U.S. 844 (1997).

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Internet will have to be narrowly drawn without negatively impacting speech protected

by the First Amendment.

While the Court has not ruled on Internet hate speech, the Ninth Circuit of the

U.S. Court of Appeals in the Planned Parenthood case used the Court’s 1969

Brandenburg test to determine that the “Nuremburg Files” Web site was not protected by

the First Amendment.90 The appeals court used the Brandenburg test for incitement as

the basis for its ruling that the Web site was illegal because it listed the contact

information for abortion providers and kept an active file of which doctors had been

killed or injured. In the court’s view this information could have motivated a pro-life

extremist to commit a violent act against an abortion provider. The appeals court’s

decision could pave the way for other federal courts to apply the Brandenburg test to

Web sites with threatening content.

The different rulings given to us by the Court can guide us in determining the

constitutionality of hate speech on the Internet. In addition to the Court’s Brandenburg

test, its decisions in the 1992 R.A.V. v. St. Paul91 and 2003 Virginia v. Black92 cases can provide us with a guide on the legality of online hate and threats. In R.A.V. the Court ruled that the St. Paul Bias-Motivated Crime Ordinance that restricted using symbols and objects that arouse anger or alarm against a person based on personal characteristics such as race, religion, and gender was an illegal content-based restriction on speech.

Therefore, any Website or e-mail that would disparage any person or group based on

90 Planned Parenthood of the Columbia/Willamette, Inc. v. ACLA, 290 F. 3d 1058 (9th Cir. 2002 en banc).

91 505 U.S. 377 (1992).

92 538 U.S. 343 (2003).

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religion, sexual orientation, ethnicity, race, or even political or professional affiliation

would be legal and protected by the First Amendment. If the speech were to go one step

further and threaten a victim with physical harm based on these types of characteristics, it

would be unconstitutional based on the Court’s Virginia v. Black ruling. As the Court

stated in Virginia v. Black, threats that could expose a person to danger or make the

victim fear for his or her life are illegal.

In contrast to how American federal laws focus on protecting the individual from

harm, the Canadian Parliament has passed several laws that ban hate propaganda directed

against groups of people that could lead to contempt and hatred against them.93 In the

1990s the Canadian Supreme Court ruled on the constitutionality of two of the five laws.

The Canadian Court upheld Section 319(1) of the Criminal Code banning public hate propaganda aimed at minority groups and Section 13 (1) of the Human Rights Act prohibiting discrimination against minorities.94 The Court ruled that Section Two of the

Charter that guarantees freedom of expression could be restricted in order to preserve the benefits of Canadian democracy for all its citizens. It stated that one aspect of Canadian democracy includes protecting minorities from hate propaganda and the potential exposure to hate and contempt that comes from it. These rulings have impacted how the

Canadian Human Rights Tribunal has ruled on three cases involving Internet-based hate propaganda. Based on the Supreme Court’s decisions in Keegstra, Andrews, and Taylor, the Human Rights Tribunal ordered three Web sites shut down because they exposed a

93 Offenses Against the Person and Reputation, R.S.C. 1985, ch. C-46, §319 (2) (2004); Offenses Against the Person and Reputation, R.S.C. 1985 ch. C-46,§319(1) (2004); Offenses Against the Person and Reputation, R.S.C. 1985, ch. C-46,§318 (4) (2004); Canadian Human Rights Act, R.S.C. 1985, ch. H-6, §13(2) (2004); and Canadian Human Rights Act, R.S.C. 1985, ch. H-6, §13 (1) (2004).

94 See R. v. Keegstra, [1990] 3 S.C.R. 697; R. v. Andrews, [1990] 3 S.C.R.870; and Canada v. Taylor, [1990] 3 S.C.R. 892.

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minority group to potential hatred.95 Internet hate speech in Canada is illegal if the speech is disseminated to the public.

What Have the Federal Legal Institutions Told Us that Will Help Explain the Differences on Internet Hate Speech Between the Two Countries?

The two countries’ laws show an important difference in how the two countries’ legislatures and courts approach Internet-based hate speech. In the United States the laws are aimed at protecting the individual from violence based on threats and harassment, an individual resulting in fear of their life. The congressionally passed statutes and Supreme

Court rulings do not ban speech based on race, gender, or religion. Instead, they focus on protecting individual’s safety. Speech loses its First Amendment protection when it is likely to incite to violence or threatens and harasses in a way that inspires fear. The 1996

Telecommunications Act’s ban on using the Internet to threaten or harass an individual was an extension of a law that previously applied to telephone communication.

In contrast, in Canada, any speech loses its Constitutional protection when it exposes an individual or a group to hatred and contempt by others. In constructing and interpreting the laws, the Parliament and Supreme Court feared that individuals and groups of people could become victims to violence if hate speech is publicly disseminated. The 2001 addition to the Human Rights Act that criminalizes Internet hate speech is an extension of an existing body of law that already banned public hate propaganda.

95 See Citron and Toronto Mayor’s Committee v. Zündel, [2002] CHRD No. 1 (C.H.R.T.); Schnell v. Machiavelli Associates Emprize Inc., [2002] CHRD No. 11 (C.H.R.T.); and Warman v. Fred Kyburz, [2003] CHRD NO. 18 (C.H.R.T.).

194

The differences between the two countries body of laws on Internet hate speech is

a philosophical difference. The laws regarding Internet hate speech are based on laws

that predate the Internet era when the boundaries to constitutional speech were already

drawn. The U.S. restrictions against online threats emanated from the pre-Internet era

and it is important to analyze Congressional intent when it passed earlier versions of anti-

threat and harassment laws. Congress’s goal was to protect individuals from violence

and fear that can result from threats, harassment, and intimidation.96

The Supreme Court has worked hard to protect individual speech rights in the

United States. As the Court stated in its 2003 Virginia v. Black decision, the First

Amendment’s protection of free speech allows in the “free trade in ideas.”97 This includes ideas that the overwhelming majority of Americans might find distasteful.98

The First Amendment does not allow a state the power to prohibit the dissemination of social, economic, and political philosophies that most Americans believe are false.99

For over 85 years, the U.S. Supreme Court has upheld bans on fighting words but has struck down content-based speech restrictions. The Court’s direction is to protect individuals from violence or a breach of the peace, while upholding the right to speak out

– even disparagingly – against groups of people. At one time, in Beauharnais v.

Illinois100 the Court upheld the Illinois ban on group libel based on race, religion, and

96 Chapter Two has a discussion on Congress’s intent when it passed the Internet threat and harassment statutes.

97 538 U.S. 343, 358 (2003).

98 Id.

99 Id.

100 Beauharnais v. Illinois, 343 U.S. 250 (1952).

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color because the law was linked to libel that might create a public disturbance. Yet, in

Ashton v. Kentucky101 the Court reversed itself by striking down a Kentucky statute that

banned libel because of the potential for violence. In Ashton, Justice Douglas said that

speech is often “provocative and challenging” and may have unsettling effects on its

audience when the speakers try to promote an idea.102 Since Brandenburg v. Ohio103 the

U.S. Supreme Court has supported the free speech rights for any individual or group to

state their beliefs no matter how offensive or unpopular those ideologies are. From its

decisions, the Court has instructed Congress on the legal boundaries to any federal

legislation restricting speech by providing guidelines to when speech is no longer

protected. It has told Congress that any restriction on speech must be narrowly tailored to

meet its goal and not restrict any more speech than what is necessary.

In contrast to the American approach of limiting speech as little as possible, the

Canadian philosophical approach is to protect minority groups even at the expense of restricting the free speech of extremists who espouse racist and other intolerant attitudes.

One of the highest priorities for the Canadian government is for every citizen to be treated equally in society. The 1982 Constitution’s Section One of the Charter explicitly guarantees freedom of thought, belief, and expression but also states that “reasonable limits” can be placed on these freedoms for the good of Canada’s democratic society. In its approach to hate propaganda, the Canadian Supreme Court – in R. v. Keegstra, R. v.

Andrews, and Canada v. Taylor – has followed the Charter’s guidelines and has upheld

Parliament’s anti-hate propaganda statutes in the Criminal Code and Human Rights Act.

101 Ashton v. Kentucky, 384 U.S. 196 (1966).

102 Id. at 200.

103 Brandenburg v. Ohio, 395 U.S. 444 (1969).

196

The “reasonable limit” on hate expression has been to protect minority groups from

extremists.

In one case, R. v. Zündel,104 the Court struck down Section 181 of the Criminal

Code, a law that had made it illegal to publish information known to be false and could cause “mischief to a public interest.” The Court struck the law down as vague and overbroad. With a different majority of Justices in the Zündel case than it had in the previous three cases, the Court said the Canadian Constitution protected the right of someone to express their views no matter how unpopular it might be. Unpopular sentiments are also in need of constitutional free speech guarantees.105 In this case the

Court adopted a more American approach to free speech.

The Canadian legal approach to banning what is often called “hate propaganda” is

similar to what some First Amendment scholars such as Richard Delgado and Mari

Matsuda espouse. They believe that hate speech denigrates its victims and make them

vulnerable to physical and psychological abuse.106 The Canadian government has

attempted to ensure that the country’s democratic principles of living safely and securely

apply to all groups in society. Delgado has pointed out that if racist and other intolerant

views were to be a part of a society’s mainstream, then it would be a failure of democracy

104 [1992] 2 S.C.R. 731.

105 Id. at 753.

106 See Richard Delgado, Words that Wound: A Tort Action, in WORDS THAT WOUND: CRITICAL RACE THEORY, ASSAULTIVE SPEECH, AND THE FIRST AMENDMENT 107 (1993) and Mari Matsuda, Public Response to Racist Speech: Considering the Victim’s Story, in WORDS THAT WOUND: CRITICAL RACE THEORY, ASSAULTIVE SPEECH, AND THE FIRST AMENDMENT 18 (1993).

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by a government, such as Canada’s, because the powerless are not protected from verbal

abuse.107

The differences between the two countries’ approaches to Internet hate speech is

crystallized if we were to understand how the major Canadian Human Rights Tribunal

cases would be treated by the American courts and vice versa. The Tribunal’s decisions in Zündel, Warman, and Schnell resulted in Web sites being shut down because they violated Section 13(1) of the Human Rights Act that makes it a crime to expose an individual or group of people to hatred or contempt based on many factors such race, sex, and religion. The U.S. Supreme Court would have most likely struck down the law as a violation of the First Amendment. Section 13(1) would likely be seen as a content-based restriction on speech and handled in the same way the Court decided R.A.V. v. St. Paul.

When viewed from the U.S. Court’s decision in Brandenburg v. Ohio, the racist views of the Web sites’ in Warman, Schnell, and Zündel would be protected speech because similar to the Klu Klux Klan’s message in Brandenburg, the Web site’s writings did not lead to imminent incitement to violence. In addition from the perspective of the Court’s

2003 Virginia v. Black ruling, the Web sites did not threaten or intimidate its targets of bigotry with harm. In Virginia v. Black, the use of burning cross, as a form of speech, is

legal as a political message. The Court may have viewed the three Web sites as political

in content.

Another way to understand the Canadian legal approach to online hate speech is

to ask how the Canadian Supreme Court would have ruled on a few American court

cases. If the Planned Parenthood case with the “Nuremburg Files” Web site would have

107 Richard Delgado, Are Hate Speech Rules Constitutional Heresy? A Reply to Steven Gey, 146 U. PA. L. REV. 865, 870 (1998).

198 come before the Canadian Court, it would have ordered the Web site shut down. Since the “Nuremburg Files” listed the names and addresses of abortion providers and it designated which had been killed and were still living, the Canadian Court would have said the Web site exposed a group of individuals to hatred and contempt in violation of

Section 319(2) of the Criminal Code. Under Section 319(2) it is illegal to promote hatred against “any identifiable group.” Shutting down the Web site would have been a constitutional “reasonable limit” on the ACLA’s free speech because it “promotes hatred” against an identifiable group, doctors who conduct abortions.

In another hate speech related case, R.A.V. v. St. Paul, the Canadian Court may well have upheld the St. Paul, Minnesota ordinance. The local law prohibited displaying symbols and objects that could arouse anger on the basis of race, color, creed, religion, and gender. The law tried to prevent victims of this speech from becoming outraged.

The Court would have upheld the law because it tried to prevent a group from being exposed to hatred and contempt. This content-based ordinance parallels Section 13(1) of the Canadian Human Rights Act in that it seeks to prevent minorities from being objects of public displays of bigotry.

With Virginia v. Black the Canadian Supreme Court might have also upheld the

Virginia statute that stated that all cross burnings were forms of speech expression and prima facie evidence of intent to intimidate. This law would be constitutional under

Section 319 (2) of Canada’s Criminal Code because it attempted to protect victims from violence related to hate speech. The burning of a cross is a form of communication that promotes “hatred against” an identifiable group.

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With an understanding of hate speech laws in both countries, the Internet does not

change the basic hate speech “equation” in both countries. The Internet is a

communications tool that allows individuals and groups of people to relay information in a quick, timely manner. As Internet technology became a standard method for communicating, in the United States laws that already banned threats and intimidation were applied to online communications. These laws were originally drafted for telephone and face-to-face communication.

In attempting to understand if the Internet should change the legal hate speech

“equation” in Canada and the United States, the answer depends on each country’s legal approach. Canada’s propaganda laws are centered on the idea that hate speech should be banned before it enters Canadian society. The government has used both the Criminal

Code and Human Rights Act to protect Canadians from becoming the victims of hate propaganda. This seems to be a more proactive than reactive approach. The Internet has not changed this fundamental approach. The decisions by the Tribunal have been to

remove Web sites from the public domain before they endanger a minority group to

hatred and contempt.

In the U.S. the test for when speech loses its First Amendment protection is when

it incites to violence or threatens an individual with harm. Incitement has traditionally

meant immediate violence resulting from words. With the Internet, e-mail and instant

messaging are two forms of direct online communication where a message can be sent by

one individual to another person(s) as a threat. E-mail and instant messaging can also be

used for one person to direct another person(s) to commit a crime in a short period of

time after the message is received. Posting information on a Web site produces a

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different set of legal challenges for speech. Information that is posted to a Web site could

remain there for long periods of time before an illegal action is committed. On the other

hand, someone could easily read about how to murder someone on a Web site and go out

and do it, either immediately after reading the Web site or later. This is where the

Internet could change the hate speech “equation” in the United States. We do not know

how speech precedents created by the U.S. Supreme Court, such as incitement,

imminence, and threats apply to speech posted on Web sites.

What are the Things We Can Learn by Examining How Two Different Countries Legally Approach Internet Hate Speech?

There are several lessons that can be gleamed from how the United States and

Canada legally approach Internet hate speech. To begin with both countries have a

constitutional guarantee of freedom of speech. While the American First Amendment

does not explain under what circumstances speech can be restricted, the Canadian Charter

of Rights states that free speech can have “reasonable limits” placed upon it.108 There are federal laws in both countries that limit speech. The U.S. Congress and Canadian

Parliament have each taken steps to limit speech in specific circumstances. Those circumstances include Internet hate speech and threats.

The Supreme Courts in both countries are the final arbiters for when speech laws violate their constitutions. Based on the two Courts’ decisions, the U.S. and Canada have divergent viewpoints on the legal nature of hate speech. In the United States, the Court

has embraced a marketplace of ideas approach. In 2003 the Court in Virginia v. Black

said that the hallmark of the First Amendment is to allow a “free trade of ideas.” 109 This

108 CAN.CONST. (Constitution Act, 1982) pt. I (Canadian Charter of Rights and Freedoms), §1.

109 538 U.S. 343, 358 (2003).

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includes speech the majority of Americans find distasteful such as hate speech. Words,

objects, or symbols that denigrate an individual or group of people based on

characteristics such as race, religion, and sex are legal unless they threaten an individual

with harm. The Court has called this a content-based restriction on speech.110

In R.A.V. v. St. Paul the Court said the First Amendment does not permit the

government to impose “special prohibitions” on speakers who express views on

“disfavored subjects.”111 The Court is sensitive to content-based restrictions because speech aimed at other categories not legally restricted by law would remain legal.112 The

Court has repeatedly ruled that speech should remain legal and in the marketplace unless it is a true threat113 or incites to imminent violence.114

The Court treated the issue of cross burning differently in Virginia v. Black than it

did in R.A.V. In R.A.V., under the St. Paul, Minnesota ordinance the burning cross was a

speech object that was burned in the yard of an African-American family to arouse anger

on the basis of the family’s race.115 In the Virginia case the cross was burnt during a Klu

Klux Klan rally in violation of a Virginia statute that equated all burnings of crosses as

intent to intimidate a victim.116 The court’s decision in this case was that a cross could

110 R.A.V. v. St. Paul, 505 U.S. 377, 381 (1992).

111 Id. at 391.

112 Id. at 381.

113 Virginia v. Black, 538 U.S. 343 (2003).

114 Brandenburg v. Ohio, 395 U.S. 444 (1969).

115 Id. at 379.

116 Supra note 113 at 348.

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legally be burnt as a political message, expressive conduct.117 The burning cross loses its

First Amendment protection when it is used to intimidate someone as a true threat.118

The Court’s Virginia v. Black decision may be one step toward regulating online

hate speech. If the content is more than just a political message and is framed at

frightening someone because of their race, ethnic, or religious identity that speech would

be illegal. The lesson that can be gleamed is that speech that threatens someone because

of their race or religion may not be protected by the First Amendment.

First Amendment scholars have attempted to apply current U.S. law to a ban on

hate speech. For example, Richard Delgado has stated that the Supreme Court has

previously ruled that words that inflict a psychological injury are not constitutionally

protected.119 He advocated that racial insults are a psychological injury. Mari Matsuda has argued that hate speech places victimized groups into a subordinated position because they fear for their safety.120 Victims of hate speech often make adjustments to their lives

in order to avoid further hate messages. Advocates such as Delgado and Matsuda have

attempted to use decisions by the U.S. Supreme Court to legally limit hate speech.

Unlike the American approach to Internet hate speech, the Canadian Supreme

Court has followed more of a regulatory framework for hate speech. Following

117 Id. at 365.

118 Id. at 362.

119 Richard Delgado, Words that Wound: A Tort Action, in WORDS THAT WOUND: CRITICAL RACE THEORY, ASSAULTIVE SPEECH, AND THE FIRST AMENDMENT 107 (1993). Delgado refers to the Court’s Chaplinsky v. New Hampshire ruling that stated that words that injure or incite a breach of the peace are not protected by the First Amendment. He also cites Cohen v. California, 403 U.S. 15 (1971) where the Court ruled that the government may restrict speech aimed at a captive audience. Delgado advocates that hate speech is geared toward a “captive audience” because the target audience is usually exposed to the speech.

120 Mari Matsuda, Public Response to Racist Speech: Considering the Victim’s Story, in WORDS THAT WOUND: CRITICAL RACE THEORY, ASSAULTIVE SPEECH, AND THE FIRST AMENDMENT 18 (1993).

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Parliament’s initiatives, the Canadian Court in the early 1990s – in R. Keegstra,121 R. v.

Andrews,122 and Canada v. Taylor123 – upheld the Criminal Code provision that

criminalized speech that publicly denigrates an individual or community because it might

expose them to hatred and contempt.124 Each Court’s decision was the result of a four to three split vote upholding the law. The Court has narrowly upheld the philosophy that

Canadian democracy protects people who are at risk of persecution. Different than the

American approach to hate speech and threats, in Canada the marketplace approach ends when people could be exposed to hatred and contempt. The Court through the Oakes test has determined that speech can be subjected to “reasonable limits” as long as the law is narrowly tailored.125 Section One of the Constitution’s Charter provides for “reasonable

limits” on speech that can be “demonstrably justified.” The lesson that we can learn from

the Canadian Supreme Court’s approach is that the marketplace of ideas concept does not

include speech that is at risk of placing an individual or community to exposure to

societal hatred and contempt. The Court has placed hate propaganda as a form of speech

that does not a benefit its democracy.

While the two countries seem to have different priorities in the constitutional

standards for outlawing hate speech, they might also be moving closer together. While

supporting restrictions on public hate propaganda, in 1992 the Canadian Court in one

121 R. v. Keegstra [1990] 3 S.C.R. 697.

122 R. v. Andrews [1990] 3 S.C.R.870.

123 Canada v. Taylor [1990] 3 S.C.R. 892.

124 Offenses Against the Person and Reputation, R.S.C. 1985, ch. C-46,§319 (2) (2004).

125 R. v. Oakes [1986] 1 S.C.R. 103.

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case, R. v Zündel,126 split 4 to 3, in ruling that a guarantee of free expression protects a person’s right to publish views known to be false. It struck down a law from the

Criminal Code that banned false statements that could cause “mischief.”127 Embodying

more of an American approach to speech, the Court said that often times it is the

unpopular viewpoint that is need of constitutional protection.128 This could be the opening to a more marketplace approach to extremist speech.

Equally important in this issue, in Zündel the Court had a different Chief Justice.

Beverly McLachlin had been one of the dissenters in the earlier cases, but was the Chief

Justice in Zündel. She remains the Chief Justice today and is the only current Justice who sat on the bench in the early 1990s.129 Chief Justice McLachlin dissented all three times

when the Canadian Supreme Court supported protected sensitivities of ethnic and

religious groups as the expense of protecting free speech. In all of her opinions, the three

dissents and one majority opinion, Chief Justice McLachlin embraced an American like

marketplace approach to controversial speech including hate propaganda. The criminal

law struck down in Zündel could have seriously limited protection for free expression,

more than the earlier opinions. Speakers could have been punished for speech that only

caused “mischief.” However, Chief Justice McLachlin’s role on the Court and the

change of other justices on the Court could mean increasing protection for free

expression. If the Court’s decision in Zündel is the beginning of a change in Canada’s

126 R. v. Zündel, [1990] 53 C.C.C. (3d) 161.

127 Sexual Offences, Public Morals and Disorderly Conduct, R.S.C. 1985 c-46 § 181 (1992).

128 Supra note 126 at 753.

129 SUPREME COURT OF CANADA - ABOUT THE COURT available at: http://www.scc- csc.gc.ca/aboutcourt/judges/mclachlin/index_e.asp.

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legal precedent then Canada is moving closer to the U.S. approach on hate speech by

embracing a more free market approach.

With the two governments’ Supreme Court establishing the constitutional

boundaries for hate speech and threats, how the Canadian and American legislatures use

statutes reflects the emphasis they have placed on restricting Internet hate propaganda

and threats. The history behind Canada’s statutes on hate propaganda dates back to the

late 1960s when Parliament convened the Cohen Commission.130 Concerned with the growing number of hate incidents aimed at blacks and Jews, the Commission suggested that Parliament try to address this concern. The Commission’s study spurred Parliament to try and protect hate speech aimed at individuals and minorities. The Canadian approach to Internet hate speech is based on content-based restrictions. Chris Gosnell, a

Canadian Constitutional expert, said that the government worries that intolerant rhetoric will gain legitimacy throughout the country if allowed to be publicly disseminated.131

While the votes were split, the Canadian the Supreme Court has been instrumental in upholding the Criminal Code provisions. In addition to banning public hate propaganda in the Criminal Code, Parliament has also used the Human Rights Act as a vehicle for restricting Internet hate propaganda.132 The Human Rights Act bans

discrimination.133 A part of the Human Rights Act equates public hate propaganda with

130 SPECIAL COMMITTEE ON HATE PROPAGANDA IN CANADA, REPORT OF THE SPECIAL COMMITTEE ON HATE PROPAGANDA IN CANADA (1966).

131 Chris Gosnell, Hate Speech on the Internet: A Question of Context 23 QUEEN’S L.J. 419 (1998).

132 Canadian Human Rights Act, R.S.C. 1985, ch. H-6, §13(2) (2004).

133 Canadian Human Rights Act, R.S.C. 1985, ch. H-6, §2 (2004).

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discrimination.134 With Parliament having passed the Criminal Code and Human Rights

Act it has shown its commitment to this issue. Hate speech can be prosecuted as either a criminal or civil crime.

In contrast to how the Canadian government has made hate propaganda a major priority, the United States has just one statute that outlaws using the Internet to threaten and harass an individual.135 Violation of the law is a monetary fine and up to two years

in prison.136 Unlike Canada, the U.S. does not have a Human Rights Act and does not frame Internet hate speech as a form of discrimination. Since the U.S. approach to hate speech is to place controversial speech into the marketplace of ideas, it does not have any statutes specifically banning hate speech. The American approach to hate speech is important because it shows that the government believes this type of speech should be kept in the marketplace. Rather than criminalizing hate speech, the U.S. government has said the best way to fight intolerant ideas is with more speech that opposes it.137 The right to promote racism can be met with an equal right to openly fight it.

The fact that Canada uses a regulatory agency to enforce its speech laws is another lesson we can draw upon. The United States does not have a governmental agency that enforces the law on online threats. Canada has a Human Rights Commission that oversees and enforces the Human Rights Act. The Commission attempts to settle any allegation of discrimination by conducting an investigation and attempting to mediate it. If it cannot resolve a dispute involving Internet hate speech, it refers the matter to the

134 Canadian Human Rights Act, R.S.C. 1985, ch. H-6, §13 (1) (2004).

135 47 USCS§223(a)(C)-(E) (2005).

136 Id.

137 Virginia, 538 U.S. 343, at 358.

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Human Rights Tribunal, an independent administrative court of law. The Tribunal has

ruled on the legality of Web sites that discriminated against a minority group.138

The U.S. has regulatory bodies that oversees and enforces certain laws, but does

not have an agency that reviews allegations of online threats or hate speech. Any

accusation of an online threat will be brought directly to a federal court of law as a

lawsuit. A federal district court will be the first step in determining if the law was

violated.

The main difference we can understand between how the two countries regulate

online hate speech and threat complaints is that in Canada mediation is the first step. If

mediation is unsuccessful, then a complaint is settled by a court in the form of the Human

Rights Tribunal. One of the duties of the Human Rights Commission is to mediate a dispute.139 It has a process for reviewing complaints related to online hate propaganda.

If the Commission cannot settle a dispute, then the matter is settled by the Human Rights

Tribunal, an independent administrative court.140 The United States does not have a federal agency that tries to mediate an online hate speech or threat complaint before it goes to trial. Without a regulatory mechanism to deal with this, the U.S. does not have an extrajudicial procedure in place to mediate any disputes between two parties.

By using the courts, statutes, and regulatory agencies the Canadian government has shown that restricting hate propaganda is a high priority. The government has a

138 See Citron and Toronto Mayor’s Committee v. Zündel, [2002] CHRD No. 1 (C.H.R.T.); Schnell v. Machiavelli Associates Emprize Inc., [2002] CHRD No. 11 (C.H.R.T.); and Warman v. Fred Kyburz, [2003] CHRD NO. 18 (C.H.R.T.).

139 CANADIAN HUMAN RIGHTS COMMISSION – ABOUT US Available at: http://www.chrc- ccdp.ca/about/default-en.asp.

140 CANADIAN HUMAN RIGHTS TRIBUNAL – ABOUT THE CHRT Available at: http://www.chrt- tcdp.gc.ca/about/jurisdiction_e.asp.

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strategy to fight online hate speech.141 Depending on whether it’s a criminal or civil violation of the speech laws, there is a well developed regulatory mechanism in place to enforce the law. The advantage to this system is that Canada has put into place a multidimensional approach to fighting online hate speech. The disadvantage is that by denying this speech a place in the marketplace of ideas, the country may be missing some opportunities to have public conversations about sensitive issues. For example a complete debate on immigration laws might be not held because of the danger of intolerant speech entering the foray. Extreme, even uncomfortable viewpoints may not get heard and debated by the public. If a country is to have a healthy discussion on important issues it cannot be afraid to hear all points of view including those the majority of Canadians may disagree with.

With Canada’s regulatory approach one important question is if the government reacts fast enough to hate speech on the Web. As a federal agency in democratically elected government, the Human Rights Commission does not monitor the Internet. It

relies on complaints from the public. In each of the cases where the Tribunal issued a

decision, the initial complaint brought before the Commission was from a private citizen.

Since Canada has a procedure for investigating hate on the Web, it can take a significant

amount of time between the initial complaint and a final decision by the Tribunal. For

example in Warman v. Kyburz,142 a year and three months (2002-2003) elapsed between

when the complaint was initiated to when the Tribunal ordered a Web site shutdown. In

141 GOVERNMENT OF CANADA, DEPARTMENT OF CANADIAN HERITAGE, CANADA’S ACTION PLAN AGAINST RACISM (2005).

142 Warman v. Fred Kyburz, [2003] CHRD NO. 18 (C.H.R.T.).

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Schnell v. Machiavelli143 three years and four months (1999-2003) had elapsed between the initial complaint and a final decision by the Tribunal. Compared with the instantaneous nature of online communication, a one, two or three year process may not be enough time for the Commission and Tribunal to act when a Canadian minority group may be in danger of being exposed to hatred and contempt. The Canadian regulatory scheme may not be able to act fast enough. The process will be even longer if a decision by the Tribunal is appealed through the federal courts.

A slow response by Canadian authorities to Internet hate might not be resolved any quicker under the American legal system. Even without a Canadian type of regulatory body, in the “Nuremburg Files” case the final decision by the U.S. Court of

Appeals for the Ninth Circuit took nearly five years from 1997 when the first district court trial took place to 2002 when the appeals court rendered its final decision. A final decision by the U.S. Supreme Court can take years. In the Court’s most recent 2003 hate speech case, Virginia v. Black, it took three years from when the case was first tried in state court to when the Court delivered its decision.

Both the Canadian and American legal systems show that reacting to allegations of online hate speech and threats will proceed in a manner that existed prior to the

Internet. While it would be nice to have a system in place to react in a timely manner to

Internet hate, it is not possible under the current regulatory and judicial frameworks. It is more important to have a stable and tested legal system that works rather than a haphazard mechanism to respond to the fast pace of the Internet.

Any future decision by the Canadian Supreme Court, the final arbiter of the constitutionality of speech laws, will impact whether the government continues to place a

143 Schnell v. Machiavelli Associates Emprize Inc., [2002] CHRD No. 11 (C.H.R.T.).

210 high priority on fighting Internet hate speech. The Court will be the body that ultimately determines if any future laws will reflect a marketplace approach to intolerant views.

By examining the American and Canadian legal approach to Internet hate speech, we can understand in a larger way how speech laws are both constitutionally interpreted and enforced. This provides a greater understanding for what we have learned about how each country legally approaches Internet hate speech.

Future Research

This dissertation has analyzed and summarized the current laws in both Canada and the United States related to hate speech and threats. The laws are based on how the two countries approach speech and in what context speech can be constitutionally restricted. What this dissertation has not studied is the effectiveness of the laws in both countries and if the laws reflect broader cultural themes in Canada and the United States.

Regarding Canada, several more research questions can be asked including:

• Has the law been effective in reducing incidents of Internet-based hate speech in Canada? • How many groups are actively trying to spread hate across the country through the Internet? • Do the majority of Canadian citizens support the federal initiatives to block hate online speech? • Does the Canadian government’s intolerance for hate speech reflect society’s larger values on tolerance, equality, and democracy? • What accounts for the passage of Canada’s hate speech laws? • Is there evidence to show that Canadians have difficulty establishing a wide open debate on public issues, particularly those related to race and religion? • Why does Canada not have the focus on individualism that the United States has?

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Expanding the U.S. part of the study is also possible. For example the following research

questions remain unanswered:

• Have the online threat and harassment laws been effective in reducing incidents of

individuals being threatened and stalked on the Internet?

• Is the Internet commonly used as a source for disseminating threats?

• Would the American public support a ban on hate speech aimed at groups of

individuals similar to the Canadian model?

• Is there more hate speech in the United States than in Canada?

• What accounts in the United States for the focus on individualism rather than

protection against hate speech directed at ethnic and religious groups?

These are all topics for future research that embody political, sociological, and cultural studies. These questions could be part of additional studies that builds off of this dissertation’s legal analysis. Since this dissertation conducted a legal comparison of

American and Canadian hate speech laws, these other studies could use quantitative research methods such as surveys of government officials and analyses of any polling

data conducted on the American and Canadian publics about online hate speech.

Qualitative research methods would include in-depth interviews of lawmakers who

propose the laws and government officials who administer them.

Another area of research is to compare the American law on threats to other

countries beyond Canada. For example, what restrictions, if any, do European countries

have on Internet-based hate speech? Are the members of the European Union required to

have the same laws or does each member country have autonomy to craft their own

online threat and hate speech laws? What, if any, are the Internet hate speech laws in

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South America and East Asia? This dissertation’s analysis could be expanded to

encompass more countries and to build a database comparing the results. Further cross-

country comparisons would give the U.S. government more data to analyze if it wanted to

design laws aimed at fighting online hate speech.

Conclusion

As discussed in Chapter One, the Internet is now a vehicle for extremist groups to

spread messages of intolerance and hatred in both the United States and Canada.

According to the Southern Poverty Law Center in 2004 hate groups operated nearly 500

Web Sites in the United States.144 As this dissertation has demonstrated in Chapter Four,

the Canadian Human Rights Tribunal has decided cases where extremists in Canada have

tried to disseminate hate messages via the Internet. The Internet is a convergence of

media that includes instant messaging, blogging, chat groups, e-mail and the World Wide

Web. In both countries hate groups use these different communication forms of the

Internet to try to influence the public about their points of view.

This dissertation has analyzed the laws in the United States and Canada on public

hate speech and threats. The U.S. Supreme Court has ruled that content-based

restrictions, bans on speech based on factors such as sex, religion, race, and ethnicity, are

not legal. It has also ruled that speech that intimidates the victim into fearing for their life

is illegal. In the United States it is legal for hate groups to use the Internet to espouse

their political and social philosophies as long as they do not threaten, harass, or intimidate

any specific individual. It would not be surprising if in the coming years, if the

appropriate case reaches the Supreme Court, the Court applies the Brandenburg or

144 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.

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Virginia v. Black tests for imminent violence and “true threats to a few of the different

communication platforms of the Internet.

In Canada, the Supreme Court has upheld federal laws that ban public hate

propaganda that exposes a group to potential prejudice. It has justified its rulings based on protecting minority groups’ access to Canadian democracy. The Canadian Human

Rights Tribunal has used the Court’s reasoning and applied it to cases involving Internet- based hate speech. The laws demonstrate that the Canadian government has placed a high priority on protecting minority groups from public ridicule.

In a direct comparison of the two countries’ laws on online hate speech and threats, the United States government places an emphasis on protecting the individual from potential harm, whereas, the Canadian government seeks to protect minority groups and individuals from harm that could result from public hate. The two countries have a philosophically different approach on the basic issue of when speech loses its constitutional protection. How the two governments treat speech on the Internet is fundamentally based on how they regard what speech can be banned from the public arena. The Canadian government seeks to ensure that all of its citizens are treated equally and protected from public discrimination. In the United States, the government has maintained that all its citizens have a First Amendment right to free expression of ideas even if those ideas are offensive. Free expression is protected as long as no one is physically harmed or endangered from it.

BIBLIOGRAPHY

Statutes

Alien Registration Act of 1940, 54 Stat. 670-671 (1940).

Canada.Const (Constitution Act, 1982) pt. I (Canadian Charter of Rights and Freedoms),§2.

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BIOGRAPHICAL SKETCH

Between 1996 and 2003 Joshua Azriel has seven years as both a print and broadcast reporter. He worked for several public radio affiliates and has also free lanced for National Public Radio, Independent Native News, and the United Press International in Miami, Florida. He holds a Bachelor of Arts in political science from Kalamazoo

College and a Master of Arts in political science from the University of Florida. Upon completion of the Ph.D., Joshua Azriel will begin work as an Assistant Professor of Mass

Communication at Kennesaw State University in August 2006.

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Table of Contents