Topic:
FREEDOM OF SPEECH; CRIME; INTERNET;
Location:
INFORMATION TECHNOLOGY - INTERNET;
Scope:
Court Cases; Connecticut laws/regulations;

OLR Research Report


September 10, 1999

 

99-R-0945

HATE SPEECH ON THE INTERNET

 
 

By: Christopher Reinhart, Research Attorney

You asked about the circumstances under which a person can be punished under hate crime laws for putting hate speech on the Internet that someone else acts on.

SUMMARY

The First Amendment protects hate speech except in certain circumstances. Certain categories of speech can be regulated, including advocating lawless activity and fighting words. Hate speech that becomes harassment, threats, or violence can become a hate crime. The language in the Connecticut Constitution on Freedom of Speech is different from the First Amendment. It is unclear whether the Connecticut provisions provides greater protection of speech. There are no cases interpreting Connecticut's hate crime statutes.

The U.S. Supreme Court in R.A.V. v. St. Paul ruled unconstitutional an ordinance prohibiting cross burning and the use of other symbols that would arouse anger, alarm, or resentment on the basis of race, color, creed, religion, or gender (112 S.Ct. 2538 (1992)). Under this ruling, statutes criminalizing bias-motivated or symbolic speech are likely unconstitutional. But the Court upheld a statute enhancing penalties for those who intentionally select their victims on the basis of race, religion, color, disability, sexual orientation, national origin, or ancestry (Wisconsin v. Mitchell, 113 S.Ct. 2194 (1993)). An individual committing a crime motivated by hate over the Internet (such as threat of violence to a specific individual) likely can receive an enhanced penalty.

In a recent case, an expelled college student became the first person convicted of an Internet hate crime. He sent racist death threats to other students by email and was convicted of sending threats based on race and ethnicity and interfering with the right to attend a university (LA Times, "Man Guilty in E-Mail Hate Crime," 2/11/1998).

We did not find any cases in which a person was punished for putting hate speech on the Internet that someone else acted on. One similar case involved a web site listing names and personal information on abortion providers and others. Although this case did not involve hate speech, it did involve a web site that a jury found to be a "true threat." In its injunction, the court found that the "Nuremberg Files" was a "true threat to bodily harm, assault, or kill one or more of the plaintiffs" (41 F.Supp. 2d 1130 (D.Or. 1999)). The court rejected arguments that the site was an expression of opinion or a legitimate and lawful exercise of free speech.

Several Connecticut hate crimes laws can address this conduct on the Internet. Hate speech that threatens, intimidates, or harasses could be punished under these statutes (CGS 53-37b, 53a-40a, 53a-181b). In addition, CGS 53-37 addresses speech that ridicules a person. There are no cases interpreting this statute. Its constitutionality is unclear under the U.S. Supreme Court's rulings.

Attached is a copy of OLR report 98-R-1306 describing Connecticut's hate crime laws.

FREEDOM OF SPEECH ISSUES

In general, the First Amendment prohibits the regulation of speech based on its content. The Supreme Court has not considered a case involving hate speech on the Internet but it did apply the First Amendment to the Internet in the context of obscenity (Reno v. ACLU, 117 S.Ct. 2329 (1997)). That case addressed the Communications Decency Act of 1996 (CDA) which sought to prevent the availability of obscene or indecent material to people under age 18. The Court ruled that the CDA was an impermissible content-based regulation of speech. The Court stated that where obscenity is not involved, the fact that protected speech may be offensive to some does not justify its suppression.

Based on this case, it is likely that speech on the Internet will be protected as it is in other forms of communication.

Categories of Speech

Certain categories of speech defined by the Supreme Court can be regulated. Attorney David Loundy describes restrictions that could apply to hate speech on the Internet including (1) speech advocating lawless action, (2) "fighting words," and (3) threats ("Computer Systems Law," 21 Seattle U. L. Rev. 1075).

Speech advocating lawless action is not merely advocating the use of force or violation of the law. It must be directed to inciting or producing imminent lawless action and likely to do so (Brandenburg v. Ohio, 395 U.S. 444 (1969)). "Fighting words" are words that "by their very utterance inflict injury or tend to incite an immediate breach of the peace" (Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)). There must be a direct tendency for the words to provoke acts of violence from the individual to whom they are addressed. Attorney Loundy states that it might be difficult to fit Internet messages into these categories because posted messages may not be read immediately and they can remain on the Internet for some time.

He also states that advocacy can be distinguished from aiding and abetting a crime. In a recent ruling, not binding on Connecticut, the Fourth Circuit Court of Appeals ruled that the First Amendment offers no protection when the purpose of an act is assisting in the commission of a crime (Rice v. Paladin Enterp., Inc., 128 F.3d 233 (4th Cir. 1997)). This case involved the liability of a publisher for The Hit Man's Manual, a how-to book for hit men that was used by an individual.

Threats

Hate speech that becomes harassment, threats, or violence is not protected. A "true threat" is not protected by the First Amendment. Federal law prohibits communications containing a threat to injure or kidnap a person transmitted in interstate or foreign commerce (18 USC 875(c)). If hate speech includes a true threat, it does not receive First Amendment protection and can be criminalized.

One recent case, involved threats over the Internet. An expelled college student, Richard Machado, sent racist death threats to other students by email. He was convicted of sending threats based on race and ethnicity and interfering with the right to attend a university and became the first person convicted of an Internet hate crime (LA Times, "Man Guilty in E-Mail Hate Crime," 2/11/1998).

Another recent case involved a more indirect threat. In Planned Parenthood v. American Coalition of Life Activists, the defendants created a web site called the "Nuremberg Files." The web site listed names and personal information on abortion providers, clinic personnel, law enforcement officers involved in securing access to clinics, judges, politicians, and abortion rights activists. Although this case did not involve hate speech, it did involve a web site that a jury found to be a "true threat." In its injunction, the court found that the "Nuremberg Files" was a "true threat to bodily harm, assault, or kill one or more of the plaintiffs" (41 F.Supp. 2d 1130 (D.Or. 1999)). The court rejected arguments that the site was an expression of opinion or a legitimate and lawful exercise of free speech.

Supreme Court Rulings On Hate Crime Statutes

The Supreme Court in R.A.V. v. St. Paul ruled unconstitutional an ordinance prohibiting cross burning and the use of other symbols that would arouse anger, alarm, or resentment on the basis of race, color, creed, religion, or gender (112 S.Ct. 2538 (1992)). The Court ruled that even if the ordinance was limited to "fighting words," it was unconstitutional because it permitted the use of fighting words in connection with some ideas but not others. Under this ruling, statutes criminalizing bias-motivated or symbolic speech are likely unconstitutional.

In Wisconsin v. Mitchell, the Court upheld a statute enhancing penalties for those who intentionally select their victims on the basis of race, religion, color, disability, sexual orientation, national origin, or ancestry (113 S.Ct. 2194 (1993)). In this case, a person was convicted of aggravated battery and given an enhanced sentence. The Court ruled that the penalty was directed at his conduct and the state can punish a crime more severely when it causes greater harm to society.

An individual committing a crime motivated by hate over the Internet (such as threat of violence to a specific individual) likely can receive an enhanced penalty.

CONNECTICUT LAWS

Several Connecticut hate crimes laws can address hate speech on the Internet. Hate speech that threatens, intimidates, or harasses could be punished under these statutes (CGS 53-37b, 53a-40a, 53a-181b). In addition, CGS 53-37 addresses speech that ridicules a person. There are no cases interpreting this statute. Its constitutionality is questionable under the U.S. Supreme Court's rulings. The following section describes these statutes.

Ridicule on Account of Race, Creed, or Color—CGS 53-37

A person violates this section if he ridicules any person or class of persons on account of creed, religion, color, denomination, nationality, or race. Violations are punishable by up to 30 days in prison, a fine of up to $50, or both.

Deprivation of a Person's Equal Rights and Privileges by Force or Threat—CGS 53-37b

A person violates this section if he uses force or threats with the intent to deprive a person or class of people of the equal protection or privileges and immunities of the laws of this state or the United States. The prohibition applies to individuals acting alone and to those acting in conspiracy with others.

The statute applies to threats when a person:

1. intentionally places or attempts to place another person in fear of imminent serious physical injury, through physical threat;

2. threatens to commit a violent crime with the intent to terrorize another, to cause evacuation of a building, place of assembly, or public transportation facility, or to cause serious public inconvenience; or

3. threatens to commit a violent crime in reckless disregard of the risk of causing terror or inconvenience.

This crime is a class A misdemeanor punishable by up to one year in prison, a fine of up to $2,000, or both. But if bodily injury occurs, the crime is a class C felony punishable by one to 10 years in prison, a fine of up to $10,000, or both. The crime is a class B felony if death results. This is punishable by one to 20 years in prison, a fine of up to $15,000, or both.

Persistent Offenders of Crimes Involving Bigotry or Bias—CGS 53a-40a

A persistent offender is a person who is convicted of any of the following crimes for a second time:

1. intimidation based on bigotry or bias (CGS 53a-181b);

2. deprivation of rights, desecration of property, or cross burning (CGS 46a-58); or

3. the statute which increases the penalty for the crimes in (2) if the crimes are committed while wearing a mask or hood (CGS 53-37a).

The court can sentence a persistent offender to the next highest class of sentence (e.g., if he is convicted of the class A misdemeanor of cross burning, he can be sentenced as though he committed a class D felony). The court must find that the character and history of the individual and the nature and circumstances of the crime indicate that the increased penalty best serves the public interest.

Intimidation Based on Bigotry or Bias—CGS 53a-181b

A person commits intimidation based on bigotry or bias if he does any of the following things maliciously and with the specific intent to intimidate or harass the victim because of his race, religion, ethnicity, or sexual orientation:

1. causes physical contact with the victim;

2. damages, destroys, or defaces his property; or

3. threatens to do either of these things, and reasonable cause exists to believe the threat will be carried out.

This crime is a class D felony punishable by one to five years imprisonment, a fine of up to $5,000, or both.

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