Date: 27 Apr 93 13:44:00 PDT From: Cliff Figallo Subject: EFF Response to NTIA "Hate Crimes" Inquiry The National Telecommunications and Information Administration (NTIA), the executive branch agency that develops telecom policies, is doing a study on how telecommunications affect crimes of hate and violent acts against ethnic, religious, racial and sexually-oriented minorities. NTIA released the following official "Notice of Inquiry; Request for Comments" in the Federal Register. The following is EFF's response to this Request: =================================================================== Office of Policy Analysis and Development NTIA U.S. Department of Commerce 14th St. & Constitution Ave., NW, Room 4725 Washington, DC 20230 April 26, 1993 RE: Notice of Inquiry; Request for Comments Role of Telecommunications in Hate Crimes Docket No. 930349-3049 Dear Policy Analyst, NTIA has asked for public comment on the role of telecommunications in hate crimes.1 The Electronic Frontier Foundation (EFF)2 requests that the following comments be included in the record. As described more fully below, speech made over telecommunications networks is entitled to the fullest First Amendment protection. Although some material may be considered hate speech, new telecommunications technologies offer unparalleled access to all participants for engaging in vigorous debate. Instead of any government-initiated scheme to control Constitutionally- protected, even if noxious, speech in this new medium, government policy ought to promote broader access to the medium as the most appropriate response. Such an approach would be most fully consistent with First Amendment jurisprudence, exemplified by Justice Brandeis's oft-quoted contention, "If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence."3 We urge NTIA to remain within this approach as it considers the record in this inquiry. The Important Role of Telecommunications Before electronic communications became available to the common person, the press was the chief means of educating the electorate. As Supreme Court Justice Potter Stewart once wrote: "Enlightened choice by an informed citizenry is the basic ideal upon which an open society is premised, and a free press is thus indispensable to a free society. Not only does the press enhance personal self-fulfillment by providing the people with the widest possible range of fact and opinion, but it is an incontestable precondition of self-government."4 Telecommunications is an even more powerful force for giving informed governance to the people. Telecommunications provides citizens with the power to disseminate and gather large amounts of information, including numerous different opinions on a single subject. This ability to gather differing opinions is essential to a person's ability to make critical choices. The government has a very strong obligation to protect a person's right to express opinions and to be exposed to the varying opinions of others. The First Amendment of the Constitution holds that "Congress shall make no law . . . abridging the freedom of speech. . . ."5 This does not simply mean protection of speech that is "politically correct." This protection extends to all speech, and the protection is especially important for speech that is not popular. As the Supreme Court has said, "[I]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."6 Hate Speech on Electronic Bulletin Board Systems and Computer Networks EFF is especially concerned with NTIA's inquiry into the use of electronic bulletin boards (BBSs) for advocating and encouraging violent acts and the commission of crimes of hate. BBSs are a relatively new form of communication, and it is important that the speech that takes place over computer networks is given the same First Amendment protections as all other speech. In fact, there are reasons that words communicated over BBSs and computer networks should be given even greater protection than speech that is communicated through other media. There are currently over 45,000 privately run BBSs in the United States, and that number is growing exponentially.7 Electronic bulletin boards can be general in scope, or they can be dedicated to one particular topic The number of topics for which there currently are BBSs is only limited by the imagination. For example, in the Washington, D.C. area, there are bulletin boards dedicated to gardening, horse shows, Shriners, religion, handicapped issues, financial management, humor, fossil energy, radiological health, amateur radio, medieval fantasy, and, of course, computer programming tips.8 Undoubtedly, there are some bulletin board systems that carry hate speech. A 1985 study by the Anti-Defamation League of the B'nai B'rith (ADL) reported that the Aryan Nations ran a BBS out of Idaho (accessible through local calls in Idaho, Texas and North Carolina) and the neo-Nazis ran a BBS out of West Virginia. The first board, called the "Aryan Nation Liberty Net," described itself as "a pro-American, pro-white, anti-Communist network of true believers who serve the one and only God -- Jesus, the Christ." It essentially carried three categories of information: hate propaganda (against Jews, other minorities and the federal government), purported enemies of the cause (listing individuals and organizations that were "race traitors" and sometimes asking users to post where these "enemies" could be found), and listings of "patriotic groups" (such as neo-Nazi and Klan organizations) and their addresses.9 While the ADL study is over eight years old, hate speech on bulletin boards is probably even more prevalent today. Once reserved only for boards that catered to this type of speech, hate speech can now be seen on national information service providers catering to the general public. In October of 1991, Prodigy, one of the largest information services providers, was the site of a heated discussion about the Holocaust of World War II. Many messages were offensive to Jews and other users of the service. For example, one message said, "Hitler had some valid points too . . . Remove the Jews and we will go a long ways toward avoiding much trouble." Other messages claimed that the Holocaust never occurred.10 Many people were incensed over the messages and demanded that the messages be removed from Prodigy's public message areas. But the Prodigy incident exhibits precisely the reason why the government should _not_ become involved in censoring hate speech (or any kind of speech) on electronic bulletin board systems. After the derogatory messages were posted on Prodigy, a large discussion ensued, and many Prodigy users responded to the hateful statements by presenting recitations of historical facts and criticizing the original posters as being bigots. The discussion on Prodigy turned out to be a rather fair exchange, with both sides of the issue explaining their viewpoints, and each side being given the opportunity to learn more about the other. The hate speech was exposed as being just that -- hate speech -- and the posters of the messages had a tough time convincing the other users in the merits of their assertions. However, the print press sensationalized the story. Headlines such as "Hate Speech Enters Computer Age"11 and "Computer as Forum of Hate Poses Problem"12 appeared and caused many outside groups to become outraged that hate messages could be publicly posted. What these groups did not understand was that after the hate messages had been publicly posted, they were publicly refuted by others who had the same access to the same medium. Unfortunately for those of us who care about free speech, Prodigy received numerous complaints from the ADL and others, and, after initially resisting any change in policy, Prodigy eventually gave in and removed the derogatory messages and changed its policy regarding hate speech. Prodigy now says that it will bar any future postings that are "grossly repugnant to community standards." Prodigy staff members make such determinations on a case-by-case basis. Many users -- in fact, many more users than had initially complained about the hate speech -- were outraged by Prodigy's change in policy, claiming that their rights to free speech were being abridged. But Prodigy, a privately-owned company, stuck to its new policy.13 However, the government is not a privately-owned company. The government's obligation to not abridge speech is Constitutionally mandated. Any consideration on the part of the government to censor speech in any way should be approached with extreme caution. BBSs are proving to be an even better medium than any that have come before to share opinions and protect the basic freedom of speech that is central to our civil liberties. Computer bulletin board systems and networks are accessible to anyone with a computer and a modem. And if users of a BBS do not like something another user has posted, the users have available to them the same medium that delivered the noxious speech to refute it. In network communications, it is common to "flame," or verbally put down, a person whose speech is offensive. Since all users of computer networks and electronic bulletin boards have access to that medium of speech, all speech can lead to discourse. While private bulletin boards must be able to continue to make their own determinations regarding the information they allow to be posted and the individuals who can access their facilities, the government must make rules that keep access to this medium (albeit not access to particular boards) open to all on a nondiscriminatory basis. This is crucial to ensure that the ability to be heard remains with every individual. As soon as this medium is restricted to use only by those who have the money, or by those who say things that are "politically correct," it is no longer a medium that fosters and encourages the public debate that is so vital to our functioning as a democratic society. In a case that the United States Supreme Court intends to hear on appeal later this term, Wisconsin v. Mitchell,14 the Wisconsin Supreme Court eloquently explained the delicate balance that must be struck between hate speech and the First Amendment: "In the wake of the Los Angeles riots sparked by the acquittal of four white police officers accused of illegally beating black motorist Rodney King, it is increasingly evident that racial antagonism and violence are as prevalent now as they ever have been. Indeed, added to the statistical compilation of bias related crimes could be the vicious beating of white truck driver Reginald Denny by black rioters, horrifyingly captured on film by a news helicopter. As disgraceful and deplorable as these and other hate crimes are, the personal prejudices of the attackers are protected by the First Amendment. The constitution may not embrace or encourage bigoted and hateful thoughts, but it surely protects them. "Because we wholeheartedly agree with the motivation of the legislature in its desire to suppress hate crimes, it is with great regret that we hold the hate crimes statute unconstitutional -- and only because we believe that the greater evil is the suppression of freedom of speech for all of us." While EFF agrees that hate speech may be a contributing factor in the commission of hate crimes, the current Congressionally-mandated study begins with the wrong question when it comes to hate speech on BBSs. NTIA should not be considering ways to limit this type of speech. Instead, NTIA should be concerning itself with ways it can ensure access to all who care to make opinions known. By ensuring access to all citizens, when hate speech is espoused, that speech can be appropriately disagreed with and discussed by others with an equal voice. The best defense against those who preach hate is exposure, ridicule and reasoned discourse. Discourse of this type is the most basic of our civil liberties. For this reason, the Electronic Frontier Foundation respectfully asks that the NTIA make no recommendations to Congress that might undermine our basic rights to freedom of expression, and instead suggest ways to protect every citizen's access to media that will give each of us a voice. As the Prodigy case showed, allowing the opportunity for more speech is the best antidote for hate speech. Thank you in advance for your thoughtful consideration of our concerns. We would be pleased to provide NTIA with any further information that may be needed. Sincerely yours, Shari Steele Staff Attorney 1 NTIA has indicated that it intends to study crimes of hate against "ethnic, religious, and racial minorities" and "those based on sexual against any of these other groups. While EFF hopes that your speech, your findings would be remiss if you did not include women as victims of hate crimes in your research. 2 The Electronic Frontier Foundation is a privately funded, nonprofit organization concerned with the civil liberties, technical and social problems posed by the applications of new computing and telecommunications technology. Its founders include Mitchell Kapor, a leading pioneer in software development who was the first CEO of the Lotus Development Corporation and developed the Lotus 1-2-3 Spreadsheet software; John Perry Barlow, a rancher, writer and computer enthusiast; and John Gilmore, a cryptography expert and one of the original founders of Sun Microsystems. 3Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring). 4Brazburg v. Hayes, 408 U.S. 665, 726-7 (1972) (Stewart, J., dissenting). 5U.S. Const. amend. I. 6Texas v. Johnson, 491 U.S. 397, 414 (1989). 7BBS magazine editor Jack Rickard estimated that there were 41,000 bulletin board systems in the United States as of March 1992, triple the number of boards in existence 18 months earlier. It is difficult to determine the exact number of computer bulletin board systems in operation, because many are private and one must know the operator to use them. Gilbert, Computer Bulletin Board Operator Liability for User Misuse, 54 Fordham L. Rev. 439, 441 (December 1985) (citing Soma, Smith & Sprague, Legal Analysis of Electronic Bulletin Board Activities, 7 W. New Eng. L. Rev. 571, 572 (1985)). 8Focke's Monthly Listing of Verified DC BBS Numbers (March 1993). 9Anti-Defamation League of the B'nai B'rith, "Computerized Networks of Hate: An ADL Fact Finding Report" (January 1985). 10Leroux, "Hate speech" enters computer age, Chicago Tribune (October 27, 1991). 11Chicago Tribune (October 27, 1991). 12Los Angeles Times (November 16, 1991). 13See footnote 8. 14169 Wis. 2d 153, 485 N.W.2d 807 (1992). Downloaded From P-80 International Information Systems 304-744-2253