Globally, the Internet has transformedinto a superior medium of communication; as technology continues to advance theAmerican judicial system governing the issue on what constitutes harm online continuesto be unclear.
The political landscape currently addresses hate speech in the cyberspacemedia landscape with laws that were written before the Internet existed. It’stime our society alters its legal doctrine to accommodate the scenario of a websitethat incites others to commit lawless acts of violence before it becomes thestatus quo. TheInternet has allowed humans to interact and gather information worldwide whichquite literally affects nearly every aspect of modern life, however it has alsobecome a platform for hateful groups to form and release dangerous information incitingviolence. There are virtually no regulations on what precisely constitutes harmon the Internet, essentially social media providers are free to espouse any definitionof hate they fancy. This topic raises the question what exactly does it takefor online speech that expresses a “true threat” to be considered un-protected speechespecially on internationally used social media platforms such as; Facebook, andTwitter? This paper will go further into detail discussing the case of City of Chicago v. Giles and the testsused to decide a hate speech case and how they are applied in today’s politicalclimate.To begin, the landmark case Brandenburg v. Ohio was significant fordeveloping the modern incitement test that determines whether speech wouldprovoke imminent lawless action.
It took the Brandenburg and AnthonyElonis case, along with many others, for the Supreme Court to realize theinconsistencies in the law and how broad the tests in determining what isconsidered protected speech on the Internet. In order to pass the Brandenburg, test the speech must fulfillthree distinct elements: intent, imminence, and likelihood, “directing toinciting or producing imminent lawless action, and the speech is likely toincite or produce such action.” On deciding whether speech is protected orunprotected this is the test that our Supreme Court has adopted across all socialmedia platforms. However, the problem that surfaces when using this test isdefining what constitutes hates, which is extremely subjective to each case. Thecourts must be able to clearly identify the intent of the speaker’s words inorder to justify the speech as unprotected under the First Amendment, and thoughintent can be proven the uncertainty prevails because the virtual sphere isalways connected to a far-reaching, indeterminate audience precluding it from being’likely’ to incite violence.
There must be a connection between words andactions to pass the incitement doctrine, thus, a website will fail to pass theimminency requirement. The time between the speech and the potential violenceis impossible to predict with certainty, therefore the imminence element of theBrandenburg test will never be satisfied. There are no specifics in the Brandenburg test thatstates if intent to harm is only physical or does it include emotional harm aswell. Is it considered hate speech when online discourse turns into aconversation encouraging intimidation resulting in emotional harm? In this caseof City of Chicago v. Giles, RobertGiles a strong opponent of abortion, after arrested and charged with disorderlyconduct for violating a Chicago ordinance posted in an open group of 140members, six of which have been previously convicted for acts of violenceagainst abortion. Along with this post a link to The NurembergFiles, which is a ‘hit list’ providing personal information of abortionproviders. The words posted along with the link to the hit list was enough toprove this post amounted to intimidation under Illinois law. The purpose of ‘hitlists’ is to intimidate and influence others to act upon the threats, in otherwords, this list poses a huge possibility of danger to potential victims, evenif the actions aren’t immediate.
This post was sufficient evidence for areasonable person to deem the nature of the speech was aimed to incite violenceagainst Dr. Simon especially when connected to the volatile debates andprotests regarding abortion. This is a perfect example of physical andemotional harm that constitutes hate speech online. Often the defendant wins inmany cases, however in the case of Cityof Chicago v. Giles the outcome favored the plaintiff. After analyzing thiscase the question that continues to puzzle me is how can Congress develop adoctrine that protect citizens from physical/emotional harm without restrictingour right to freedom speech? Does speech that puts a citizen in potentialdanger without imminent harm still amount to enough intimidation?The complex issue of hate speech holds a longstrenuous history, consisting of those that advocate for reevaluating thecurrent incitement doctrine and regulating the Internet to a certain extent,and those who believe censoring and suppressing speech on the Internet violatesour rights and is leads to corrupt governmental practice. Though it may feel simplerto silence those who are imposing hateful speech, many scholars believe theInternet allows the people to voice their opinions and act as a mechanism to ‘blowoff steam’ rather than relying on violence to get their point across.Some also argue that the Internet is nottime-concerning, meaning that at any point in time a person can refute the threateninginformation so the government should not be able to interfere.
There are otherperspectives that think demonstrating the link between speech and actions online,such as the act of committing violence, is too questionable to prove. As shown above, if the U.S. Supreme Courttook it upon their mission to clarify and define hate speech in the onlineatmosphere it would be easier to develop and instill federal laws and newtests. The definition needs to be clear in explaining whether speech includesboth physical and emotional harm.
Although the citizens of America havedissenting opinions regarding this matter it’s important to focus the attentionon the cases that are currently being handled and using a test that isunfitting is not the solution for these cases; the time has come for the SupremeCourt to establish a universal test that differentiates protected andunprotected online hate speech.