The trouble with hate speech is generally that its performers use the right of free speech, stated in the first amendment, to justify their acts. Estimates reveal that there are some 800 so-called “Hate Speech” sites on the Internet. In this article the focus will be on hate speech as performed by the Westboro Baptist Church in Topeka, Kansas. Their web pages “God Hates Fags” (http://www.godhatesfags.com/) and “God Hates America” (http://www.godhatesamerica.com/) provide a perfect demonstration of the unlimited freedom that is allowed on the Internet. The article will present a review of the abovementioned amendments, the activities of the Westboro Baptist church as applied to these amendments, and recent court decisions regarding hate speech on the Internet.

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The trouble with hate speech is generally that its performers use the right of free speech, stated in the first amendment, to justify their acts. Hate speech can be focused toward various groups, such as Racial Minorities, Religious Groups, and Age Groups in a number of ways, varying from verbal speech and written documents to demonstrations.

With the Internet as the “new medium”, currently providing access to approximately 490 Million people worldwide (Global Reach, 2001) of which 92.2 Million in the United States and Canada as of 1999 (Commercenet Research Center, 2001), practitioners of hate speech are ensured of a broad spectrum of consumers for their product. Hate Speech on the Internet does not only involve the first amendment (freedom of speech), but also the fifth (taking private property for public use), and the fourteenth amendment (equal protection), as well as the right of privacy which is regarded the unwritten right as acknowledged by the Supreme Court (Wolfe, Dow, Dobson, and Nesteruk, 1995).

Estimates reveal that there are some 800 so-called “Hate Speech” sites on the Internet and they run the gamut from Neo-Nazis to militia movements, from Holocaust denial advocates to bomb-making recipes (Smith, 2001). In this article the focus will be on hate speech as performed by the Westboro Baptist Church in Topeka, Kansas. Their web pages “God Hates Fags” (http://www.godhatesfags.com/) and “God Hates America” (http://www.godhatesamerica.com/) provide a perfect demonstration of the unlimited freedom that is allowed on the Internet. The article will present a review of the abovementioned amendments, the activities of the Westboro Baptist church as applied to these amendments, and recent court decisions regarding hate speech on the Internet.

The Law

The First Amendment states the following:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances” (National Archives and Records Administration, 2001)

A fragment of the Fifth Amendment declares: “nor shall private property be taken for public use” (National Archives and Records Administration, 2001).

Section 1 of the Fourteenth Amendment asserts:

“No State shall make or enforce any law, which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” (National Archives and Records Administration, 2001).

Regarding the protection of the First Amendment and the ability to express hate speech, The American Bar Association (1996) states,

Several states and municipalities have tried to limit offensive speech through "hate speech" laws, legal constraints on what people may communicate to one another in spoken words, in writing or through expressive conduct. In 1992 the Supreme Court found a St. Paul, Minnesota hate speech law unconstitutional because it only banned selected types of "fighting words." The Court defined "fighting words" in Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), as those that "by their very utterance inflict injury or tend to incite an immediate breach of the peace."

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Hate Speech on the Internet

Sandra Coliver's Striking a Balance: Hate Speech, Freedom of Expression and Non- Discrimination defines hate speech as: "an expression which is abusive, insulting, intimidating, harassing and/or which incites to violence, hatred or discrimination." Hate speech laws are those, which prohibit any of the three types of hate speech: group libel, harassment, and incitement (Lerner, 1996). Yet, there does not seem to be a consistent approach toward hate speech. The website “Legal History of Free Speech” exclaims that what counts as hate speech is unclear, the rationale for protecting it varies, and American courts have been somewhat inconsistent in how they have dealt with the issues over the last 50 years (Unknown, 1998). The website continues by stating that many countries regard hate speech as having an especially poisonous effect on social life. In the United States, however, we have tended toward another view that emphasizes the value of unrestricted debate (1998). If a person delivers a hate speech denigrating all Jews, or Afro-Americans, or gays, then this would not be considered a hate crime anywhere in the United States, because no criminal act has occurred. Hate speech is protected under the First Amendment (Robinson, 2001).

In his article “Hate, murder and mayhem on the Net” Sussman exclaims that the Bill of Rights clearly gives Americans the right to hate anyone, and to freely express their anger -- on the Internet and elsewhere -- as long as it does not lead to criminal activity (1995). According to Sussman there is little online that is not already available in the physical world, where much of it is clearly protected by the First Amendment (1995). Sussman further affirms that champions of cyberspace insist the recent quest to demonize the Internet as a uniquely awful source of information for terrorists and hatemongers overshadows the fact that useful information far outweighs the troublesome material, just as in any library (1995).

In “Policing cyberspace” Sussman explains that in spite of the First Amendment, there have been laws plenty in the last three generations that regulate speech on new kinds of technology. Different restrictions apply to telephones, radio and TV stations and cable TV. But cyberspace is a convergence of media and the blurring of distinctions between transmission modes (1995). Sussman cites a representative of the Federal Law Enforcement Training Center, Carlton Fitzpatrick, who compares cyberspace to “a neighborhood without a police department (1995).” Fitzpatrick states further that

“One of the most pressing dangers is that people bound by hate and racism are no longer separated by time and distance. They can share their frustrations at nightly, computerized meetings. What some people call hate crimes are going to increase, and the networks are going to feed them (1995).”

The Westboro Baptist Church (WBC)

At the funeral of gay murder victim Matthew Shepard, they held up signs reading "No Fags in Heaven" and "God Hates Fags." According to their Web site, they have staged "20,000" protests across the nation and around the world in the last decade. They believe that "God's hatred is one of His holy attributes." They are the congregants of the Westboro Baptist Church of Topeka, Kansas (Anti Defamation League, 2000). According to the Anti Defamation League, ADL, The Westboro Baptist church considers itself an "Old School (or, Primitive)” Baptist Church. The Church is led by the septuagenarian Reverend Fred Waldron Phelps Sr. (2000). Providing a background of this church leader, the ADL states:

Trained as a lawyer, Fred Phelps was disbarred in 1979 by the Kansas Supreme Court, which asserted that he had "little regard for the ethics of his profession." Following his disbarment from Kansas State courts, Phelps continued to practice law in Federal courts. In 1985, nine Federal court judges filed a disciplinary complaint charging him and six of his family members, all attorneys, with making false accusations against them. The Phelpses fought the complaint but lost. In 1989, Fred Phelps agreed to surrender his license to practice law in Federal court in exchange for the Federal judges allowing the other members of his family to continue practicing in Federal court (2000).

The WBC has focused its main hatred on homosexuals and has already picketed the gay community at hundreds of events nationwide (ADL, 2000). However, the Anti Defamation League asserts, “many WBC fliers [also] emphasize the race or religion of these individuals, suggesting that the Church's hate spreads beyond its abhorrence of homosexuality. What appears to be anti-gay rhetoric is often a vehicle for WBC's anti-Semitism, hatred of other Christians, and even racism (2000).” The WBC has repeatedly published news releases containing hate speech toward the abovementioned groups. Some examples

· On Jews: Homosexuals and Jews dominated Nazi Germany...just as they now dominate this doomed U.S.A....The Jews now wander the earth despised, smitten with moral and spiritual blindness by a divine judicial stroke...And god has smitten Jews with a certain unique madness, whereby they are an astonishment of heart, a proverb, and a byword (the butt of jokes and ridicule) among all peoples whither the Lord has driven and scattered them... (ADL, 2000)

· On Gays: "All gays & lesbians are liars and murderers at heart, like their father, Satan." God hates Fags, Fags hate God, Aids cures Fags, Thank God for Aids, Fags burn in Hell, No not Mocked, Fags are Nature Freaks, God gave Fags up, No special laws for Fags. (ADL, 2000)

· On Blacks: "Meet ______, black criminal...this black goon heads for 15-year-old Sharon Phelps...to beat her and hospitalize her." [-- "Boycott the Vintage...Black Bullies Beat White Kids and Women," WBC flier, March 31, 1996] (ADL, 2000).

· On Christians: Churches...like the Southern Baptists and Assembly of God churches are as much to blame as the out of the closet fag churches...Why? Because they have created an atmosphere in this world where people believe the lie that God loves everybody. This soul-damning lie is the reason that fags are so out-spoken today." (ADL, 2000).

· On America:

o "The reason for the violence that has been erupting in the United States of America in recent years is that GOD HATES AMERICA."

o "In our experience, no modern country is more repressive of human rights than the U.S.A. The vaunted First Amendment is nothing but empty words on paper... (ADL, 2000).

The WBC does not limit its activities to Internet hate speech and church meetings, but travels throughout the United States to picket the gay community. On the organization’s “upcoming picket page” (http://www.godhatesfags.com/pickets.html) there is a calendar posted with future hate demonstrations.

Legal cases regarding hate speech on the Internet

The American Civil Liberties Union (ACLU) is a nation-wide, non-partisan organization of more than 275,000 members dedicated to protecting the principles of freedom set forth in the Bill of Rights to the U.S. Constitution. For more than seventy-five years, the ACLU has sought to preserve the First Amendment against governmental attempts to restrict the constitutionally guaranteed right to free speech (ACLU, 1998). In 1997 the Supreme Court unanimously ruled that the Communications Decency Act (CDA) of 1996, which made it a crime to transmit "indecent" materials on the Internet, violated the First Amendment (ACLU, 1998). This happened in the landmark case Reno v. ACLU, 521 U.S. ___, 117 S. Ct. 2329, 138 L. Ed. 2d 874 (1997). According to the ACLU the Supreme Court decided in this case that "the interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship." 138 L. Ed. 2d at 906 (2000). The ACLU further exclaims that in its historic decision, the Supreme Court recognized that the Internet, as much as books and newspapers found in our public libraries, is entitled to the very highest level of First Amendment protection (2000).

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In its “Testimony of the American Civil Liberties Union” published in March 1998, the ACLU mentions two other cases, both aimed on regulation of speech on the Internet, S.1619, and S.1482. S.1619 regarded the application of “filtering or blocking systems” toward indecent pages on the Internet (Electronic Privacy Information Center, 1998), while S. 1482 pertained to “establishing a prohibition on commercial distribution on the World Wide Web of material that is harmful to minors, and for other purposes (Carney, 1998)”. The ACLU suggested in its “Joint Letter to the Senate Regarding Internet Legislation” that the issue of being confronted with undesirable websites could be approached in various ways that would not violate the First Amendment. Suggestions varied from “good old parent guidance” to institution-based policies limiting Internet use to appropriate purposes. Some interesting findings of the ACLU and the Supreme Court in Reno v. ACLU are

· Filtering software also restricts access to valuable, constitutionally protected online speech about topics ranging from safe sex, AIDS, gay and lesbian issues, news articles, and women's rights. Religious groups such as the Society of Friends and the Glide United Methodist Church have been blocked by these imperfect censorship tools, as have policy groups like the American Family Association (ACLU 1998).

· Age verification is practically impossible on the Internet. The ACLU states that the Supreme Court noted that “the vast majority of websites are not financially or technically capable of requiring a credit card or other form of identification to verify the age of users (1998).

· There is no national standard for obscenity. Therefore, local standards, not national standards, are to be considered when determining whether a work is obscene (ACLU, 1998).

· The Internet is a global medium (ACLU, 1998). This indicates that “a national censorship law cannot protect …[Internet users] from online content they will be able to access from foreign sources (ACLU, 1998)”.

Conclusion

The ACLU has done an impressive job up to date by defending a broad definition of free speech. In the “History of Free Speech” it is stated that according to some observers, “the ACLU has been successful in part because there was never an equally well organized and persistently focused opposition (Unknown, 1998). There can be no objection against respecting the First Amendment. However, one wonders where the line is drawn between hate speech and assault. In 1997 a student from the University of California at Irvine was prosecuted, because he was caught on tape while sending email messages containing hate speech toward Asian fellow students. Considering that hate speech can easily lead to hate crime, it might be appropriate to establish at least some rules regarding appropriateness of language, posted on public accessible entities.

The WBC may serve as an example to the great freedom that is allowed in the United States, even though this church cries out loud about the lack of freedom by stating that no modern country is more repressive of human rights than the U.S.A. The vaunted First Amendment is nothing but empty words on paper (ADL, 2000). Federal Law Enforcement Training Center’s Carlton Fitzpatrick states,

"I believe in the First Amendment. But sometimes it can be a noose society hangs itself with." Of course, the antidote to offensive speech, noted Supreme Court Justice Louis Brandeis, is more speech, and the Internet is still an equal-opportunity soapbox. Messages on public bulletin boards can be challenged and rebutted, which widens debate. Moreover, users can go where they choose on the Internet. So, those offended by discussions are always free to start their own groups (Sussman, 1995).

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