1996-01-13
Craig A. Johnson
Folks,
The following is an excerpt from the ACLU Cyber-Liberties Update,
January 10, 1996.
A little more light (and perhaps heat) on the Simon Wiesenthal Center
controversy.
The complete ACLU alert will be posted on our Web site this weekend.
-caj
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January 10, 1996
ACLU CYBER-LIBERTIES UPDATE
A bi-weekly e-zine on cyber-liberties cases and controversies
at the state and federal level.
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* The Fourth Horseman of the Internet -- Hate Mongers -- Rears Its
Ugly Head Again
Just in case the Pornographers, Hackers, and Pedophiles didn't scare
you away from the Internet, the Simon Wiesenthal Center raised another
spectre for you to fear -- the Neo-Nazis and other Hateful
Undesirables on the Net. The Simon Wiesenthal Center has been trying
for almost two years to rid the Internet of hate speech, and one of
their techniques is commendable and appropriate -- the use of more
speech to expose and humiliate these intolerant groups. The Center
has an excellent web page that tracks the online activities of hate
groups and urges online users to post other accounts of online hate.
See http://www.wiesenthal.com.
Unfortunately, rather than simply exercising their own First Amendment
right to protest such groups, the Center has waged an all-out war to
deny such groups of their equivalent free speech rights. The war has
fueled an already hysterical rush by both private business and
government to censor the Net unnecessarily. It is particularly
troublesome that an organization like the Wiesenthal Center that is
dedicated to promoting tolerance would seek to erode the liberty most
necessary for a free and tolerant society -- free speech.
In August 1994, the Wiesenthal Center waged its first campaign by
presenting a dossier to the Federal Communications Commission that
documented hate speech on online networks. (While the Center has
never attempted to define just what it means by "hate speech," it
appears to be referring primarily to anti-black, anti-gay and
anti-Semitic speech.) The FCC turned the dossier over to the U.S.
Justice Department, who knows better than to pursue any hate groups on
the basis of their speech alone. (See US News and World Report,
9/8/94.) In fact, when the Senate subcommittee on terrorism held
hearings in May 1995 on the use of online services by terrorist and
anti-government groups, DOJ's Deputy Assistant Attorney General Robert
Litt testified that the government must be careful not to "trade off
the guarantees of the Bill of Rights in order to uphold our duty to
ensure domestic tranquillity." See "Hate Speech on Internet Called
Protected by Constitution," New York Times, 5/12/95.
Shortly after the Oklahoma City bombing, the Wiesenthal Center was
again successful in fueling the mainstream press hysteria about hate
groups organizing through online media. See, e.g., "The Internet:
Far-Right Groups Get Mainstream Access," San Francisco Chronicle,
4/22/95. Yet while no evidence ever conclusively linked the Internet
with the plotting of the Oklahoma bombing, the press ignored the
incredible array of online resources that were devoted to assisting
citizens in the aftermath of the tragedy.
Within hours after the bombing, Internet users could find up-to-date
information about the rescue effort, learn how to send money or
provide other assistance to victims and their families, and provide
tips in the search for suspects.
This week, the Wiesenthal Center launched the latest weapon in its
battle to rid online networks of hate groups -- it issued a plea to
Internet Service Providers to pledge "to refuse or terminate service
to any individual or group that exploits our services to promote an
agenda of hate or violence."
See "Group Urges an Internet Ban on Hate Groups' Messages," New York
Times, 1/10/96. The Center's letter shows both a lack of
understanding of online technology and a lack of respect for a truly
democratic communications medium.
In both the New York Times story and in a radio talk show debate with
the ACLU's Ann Beeson, Rabbi Abraham Cooper, Associate Dean of the
Center, suggested that it wasn't targeting online discussion forums
like Usenet, but rather was targeting the Internet's World Wide Web.
That would imply that a service provider who adopted the code of
ethics would have to censor a message posted to a hate group's web
page but could let slide the same message if posted to a Usenet
newsgroup -- a nonsensical result.
The Rabbi's rationale for applying different standards to Usenet and
the Web was that individuals "don't have a chance to respond to hate
speech on the Web." That is simply incorrect -- almost all web pages
include e-mail addresses that allow anyone who comes across the site
to communicate with the site's creators. The distinction also ignores
the fact that most online users initially encounter particular web
sites by using search engines like Yahoo. Any search for "White
Supremacy" or "Aryan Nation" brings up not only those sites that
support such ideas, but also many sites (including the Simon
Wiesenthal web page!) that denounce hate speech and provide
information on how to oppose hate groups.
The Wiesenthal Center's answer to hate speech gives no credit to the
growing number of Internet sites created specifically to track and
expose hate groups. For example, "The Hate Page of the Week" provides
a link to a different hate group each week and encourages users to
flame the site. See http://www.owlnet.rice.edu/~efx/hpotw.html. "The
Net Hate Page" also provides links to hateful web sites, tracks the
activities of hate groups, and discusses ways to fight them. See
http://www.vir.com/Shalom/hatred.html.
The Wiesenthal Center has also suggested that it is merely asking
online providers to act like other "publishers" of information, like
newspapers and radio broadcasters, who traditionally refuse to provide
a platform for hate speech. But that's a bad idea for several
reasons. First, as Prodigy and other large commercial providers know,
choosing to edit online information is a two-edged sword that can make
online providers liable for the libelous acts of its users. See
_Stratton-Oakmont Inc. v. Prodigy Services Co._, No. 31063/94 (N.Y.
Sup. Ct., 5/24/95). Second, many small Internet Service Providers
just don't have the resources to monitor all the web sites housed on
their systems.
Finally, and most importantly, service providers have already proved
woefully inept at determining just what speech is "offensive" --
whether it is sexually explicit or hateful. A few examples include
America Online's hilarious censorship of gay video titles (see
Cyber-Liberties Update 12/6/95), CompuServe's ban of newsgroups on
disability and gay issues in an effort to satisfy a German
prosecutor (see article later in this issue), and AOL's short-lived
screening of the word "breast" from online educational materials on
breast cancer.
Because online providers are not government entities, there is
currently no constitutional remedy against online providers who
decide to censor. But it is in the providers' own best interest _not_
to censor but rather to follow Supreme Court Justice Louis Brandeis'
advice regarding speech that offends: "[T]he remedy to be applied is
more speech, not enforced silence." _Whitney v. California_, 274 U.S.
357, 377 (1927).
The ACLU calls on all service providers to reject the Wiesenthal
Center's code of ethics for online hate speech. We urge all online
users to write to their service providers and urge them to respect
their free speech right to respond openly and publicly to online
speech that is offensive or disagreeable.
A copy of the letter that the Wiesenthal Center sent to hundreds of
Internet service providers is available on their web site at
http://www.wiesenthal.com.
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