Hacker 2/HACKER2.mdf/cud/cud533b.txt

Text File | 1995-01-03 | 20KB | 405 lines

Date: 29 Apr 93 08:47:10 EDT
From: Lance Rose <[e-mail]>
Subject: SEA letter - Hate Crime

                  Society for Electronic Access
                      Post Office Box 3131
                      Church Street Station
                     New York, NY 10008-3131


                                   April 26, 1993

Federal Express
Office Of Policy Analysis and Development
NTIA
U.S. Department of Commerce
14th Street and Constitution Ave. NW
Room 4725
Washington, D.C.  20230

     Re:  Letter of Comment
          Report on the Role of Telecommunications in Hate Crimes
          by the National Telecommunications and Information
          Administration ("NTIA")

Dear Sir or Madam:

     I am submitting this Letter of Comment on behalf of the
Society for Electronic Access ("SEA").  SEA is a membership
organization dedicated to preserving freedom in electronic
communications and developing greater public access to electronic
communications.  A more detailed description of SEA is enclosed.

     SEA hereby responds to the Notice of Inquiry and Request for
Comments on the Role of Telecommunications in Hate Crimes recently
published by NTIA in the Federal Register (the "RFC").

Summary of SEA Position

     SEA views the RFC as largely an inquiry into the repression
of free speech for the purpose of combating "hate crimes."  If NTIA
devotes its efforts to the matters described in the RFC, it will
result, at best, in a great waste of valuable time and resources.
Very little of the legislation proposed in the RFC would stand up
under the scrutiny required by the First Amendment to the
Constitution of the United States for laws restricting freedom of
speech.

     There is also potential for far worse if NTIA makes the
speech-restricting recommendations intimated in the RFC.  NTIA is
operating under a fast-track procedure mandated by Congress in the
enabling legislation.  If Congress retains the current fast-track
approach and acts swiftly to enact NTIA's recommendations into law,
we may be faced with new federal laws seriously abridging freedom
of speech in telecommunications, without a meaningful opportunity
for public debate on the wisdom of such laws.

     To avoid these problems, SEA urges NTIA to restrict the focus
of its inquiry to valid areas of rulemaking that do not repress
freedom of speech.  If necessary, NTIA should also point out to
legislators the Constitutional bar to repressing speech in any
medium, including telecommunications, as a means of achieving
legislative goals.

     SEA recognizes that racially and ethnically motivated "hate
crimes" are a problem in the United States today, and agrees that
all U.S. citizens must be protected from those who would commit
such crimes.  The challenge to Congress is to find ways to combat
the problem without curtailing our essential First Amendment
freedom of speech.

     Effective approaches to combating hate crimes while leaving
freedom of speech unaffected are available, as discussed below.
These include increased use of telecommunications to educate the
public about hate crimes, and the creation of a speech-neutral
federal hate crime law modeled after the existing mail fraud and
wire fraud statutes.

                           Discussion

1.   The First  Amendment Prohibits Content-Based Regulation Of
     Hate Speech

     It must be recognized, as a starting point, that the First
Amendment forbids regulation of "hate speech" based on the content
of that speech.  The government cannot enact content-based
regulations on speech in general, nor can it single out "hate
speech" for regulation.

     This principle was definitively established by the Supreme
Court last year in R.A.V. v. City of St. Paul, 112 S.Ct. 2538
(1992).  In R.A.V., a black family in a predominantly white
neighborhood in Minnesota endured a racially motivated cross
burning on its lawn.  The perpetrators were successfully prosecuted
in the Minnesota courts under a municipal law that outlawed hate
speech and related conduct.

     The Supreme Court invalidated the law.  Its sweeping ruling
left no doubt that all content-based regulations of protected
speech, regardless of their purpose, run afoul of the First
Amendment's protection of freedom of speech.  Hate speech directed
at racial, ethnic or religious groups may be repugnant, but it is
no more than the expression of the speaker's viewpoint, and cannot
be restricted.  As the Court said, "Let there be no mistake about
our belief that burning a cross in someone's front yard is
reprehensible.  But St. Paul has sufficient means at its disposal
to prevent such behavior without adding the First Amendment to the
fire."

     Neither Congress nor the Executive Branch can override the
R.A.V. decision, since the Supreme Court is the ultimate
interpreter of the Constitution for the federal and state
governments.

     Yet both Congress and NTIA suggest that despite the Supreme
Court ruling, Congress is free to regulate hate speech as necessary
for the control of hate crimes.  In Section 135 of the
Telecommunications Authorization Act of 1992, Congress directs NTIA
to, "analyze information on the use of telecommunications . . . to
advocate and encourage violent acts and crimes of hate . . . [and
to] include any recommendations deemed appropriate and necessary
by NTIA."

     Public advocacy, regardless of the object, is fully protected
by the First Amendment.  Advocating hate crimes is no exception to
this rule.  Accordingly, Congressional regulations to control the
use of telecommunications "to advocate and encourage violent acts
and crimes of hate" would run hopelessly afoul of the First
Amendment.  The most important "information" on the use of
telecommunications for hate crime advocacy is the information that
such advocacy cannot be regulated by Congress.

     Nonetheless, NTIA is currently acting under Congressional
direction, and seeks reports of instances of the use of
telecommunications for hate crime advocacy.  In addition, NTIA is
exploring the political acceptability of regulating hate speech in
telecommunications.

     For instance, NTIA bluntly suggests that a bulletin board
system operator could be forced by the government to censor hate
speech messages: "Some have questioned whether, if computer
bulletin boards become ubiquitous, the operator of a bulletin board
system should have the ability to restrict the types of messages
listed on it, or should have access to private messages on the
system to enforce such restrictions."

     Any laws requiring such message-type restrictions are totally
unacceptable.  They would utterly chill speech on computer bulletin
boards, and violate R.A.V.'s prohibition on content-based
regulation of hate speech.  In addition, government-ordered
intrusions into private electronic mail to restrict hate speech
would violate the federal Electronic Communications Privacy Act,
which guarantees that private electronic transmissions will be
safeguarded from all but the most carefully authorized government
searches or seizures.

     NTIA goes even further, discussing the physical mechanism by
which hate speech censorship could be exercised: "New Developments
in telecommunications technologies may offer a means of preventing
. . . hate crimes. . . . [W]ith respect to computer bulletin
boards, computer software can allow computer bulletin board
operators to eliminate unwanted messages from their systems."  It's
unclear whether NTIA is talking about a system operator manually
removing messages deemed "unwanted" by the government, or setting
up some kind of automatic computer program to filter out messages
with bad words or themes.  Either way, it's content-based
regulation, and it is prohibited by the First Amendment.

     NTIA also disregards the powerful First Amendment bias against
any regulation of telecommunications operators (aside from a
perfunctory acknowledgment that a freedom of speech viewpoint
exists).  To the contrary, NTIA apparently assumes that regulation
of telecommunications is freely available whenever Congress deems
it necessary.  For instance, at one point NTIA asks:
"[B]roadcasters are subject to certain "public interest"
obligations . . . Most point-to-point voice and data service is
provided by common carriers subject to the authority of state and
federal regulatory agencies . . . Computer bulletin boards are
private, unregulated communications systems.  To what degree do
such legal and regulatory distinctions affect the commission and
prevention of hate crimes using telecommunications?"

     The above sketch of the regulatory climate implies that
computer bulletin boards are as regulable as broadcasters and
common carriers.  This is simply not so.

     In fact, "unregulated" is the Constitutional default setting
for all speech distribution systems, including computer bulletin
boards.  Radio communications and common carriers are currently
subject to some regulation, but this does not flow from any basic
principle that regulating speech-carrying media is a readily
available option.  Regulation of these media is mostly a result of
historical accident, coupled with a failure to predict the First
Amendment dimension of these media at the time the regulations were
first imposed.

     Broadcasters and common carriers are differently regulated,
and regulated for different historical reasons.  Only airwave
broadcasters are subject to content-based "public interest"
standards, on the sole basis that there are more applicants for use
of the frequency spectrum than available frequencies.  Those best
serving the "public interest" are granted licenses.  The "public
interest" licensing approach has traditionally permitted a certain
amount of attention to the content of broadcasted material.  But
such regulation is justified only by the scarcity of separate
broadcast frequencies.  In contrast, computer bulletin boards and
nodes on the Internet, to name two widespread new means of
telecommunication, do not suffer any scarcity of communications
channels, so neither licenses nor license standards are necessary.

     Telephone common carriers are regulated due to the monopoly
aspect of local carriers, and because the telephone system was
initially viewed as a traditional regulated public utility similar
to railroads and power suppliers.  However, a cornerstone of common
carrier regulation is that the common carrier has no responsibility
for the content of speech carried on the system.  Thus, it also
provides no precedent for adding regulation to BBSs.

     Those urging new telecommunications regulations have to show
that it's worth abridging the First Amendment to make room for such
regulations.  Neither Congress nor NTIA have done that, but such
proof must be made before they can legally pursue regulatory
agendas.

     Preventing the "hate crime" intimidation of people or groups
by others is a laudable goal and a growing necessity.  It seems
that hate groups such as the neo-Nazis and Ku Klux Klan are
healthier than ever.  Reasonable regulations to keep these groups
from hurting others are welcome.  But speech, hurtful as it might
be, must continue to be spared from regulation.

     Are Congress and NTIA dedicated to regulating hate crimes out
of existence, regardless of the First Amendment?  SEA would like
to think not.

2.   Other First Amendment Problems with Regulations Suggested by
     Congress and NTIA

     Aside from the absolute ban on content-based speech
restrictions, there are other fundamental First Amendment problems
with the hate speech regulations being explored by Congress and
NTIA.

     First, any law or regulation that would single out "hate
speech" from other hate crime conduct for special criminal
treatment is patently illegal under the First Amendment.  For
example, in Simon & Schuster, Inc. v. New York State Crime Victims
Board, 112 S.Ct. 501 (1991), the Supreme Court threw out New York's
"Son of Sam" law, which sought to deny to convicts all profits from
publicizing their stories, diverting the compensation instead to
a state-run crime victims' compensation board.  The Supreme Court
declared the New York law void because it singled out publishing-
related activities by convicts, and left other money-making
activities by convicts untouched.  The result was a special
regulation aimed only at convicts' speech activities, which cannot
stand under the First Amendment.  The Court pointed out: "In short,
the State has a compelling interest in compensating victims from
the fruits of crime, but little if any interest in limiting such
compensation to the proceeds of the wrongdoer's speech about the
crime."

     The Congressional enabling act language is just as narrowly
focused on speech activities, to the exclusion of all else, as the
Son of Sam law that was ultimately determined unconstitutional.
The "scope of report" requested by Congress from NTIA is limited
to "use of telecommunications . . . to advocate and encourage" hate
crimes.  NTIA was not requested to report on the role of
telecommunications in hate crimes generally, but solely its role
as a distributor of speech.  Any ensuing hate crime regulations
that might be proposed by NTIA and enacted by Congress, if they
retain the same speech-only focus, would clearly violate the
Supreme Court's Son of Sam ruling.

     Second, as discussed above, NTIA suggests that operators of
private computer bulletin boards could be forced by law to restrict
hate messages on their systems.  This would be no less than the
government forcing sysops into a censorship role.  However,
saddling bulletin board operators with such message monitoring
requirements would create an enormous chilling effect on the
operation of bulletin boards.  Many bulletin board systems would
suffer diminished operations or shut down from sheer administrative
overload, while others would close up shop due to their operators'
refusal to act as government censors.  This would not only affect
the hate speech the government is concerned about, it would
severely damage the immensely greater flow of productive, rightful
speech engaged in regularly by computer bulletin board users.

     The First Amendment absolutely forbids this kind of
governmental burden on distributors of protected speech, as
recognized in the seminal case of Cubby v. CompuServe, 776 F. Supp.
135 (S.D.N.Y. 1991), recently decided in the Southern District of
New York.  Relying on the Supreme Court's protection of a book
store from burdensome legal review requirements in Smith v.
California, 361 U.S. 147 (1959), the district court held that
CompuServe, in its role as a large-scale bulletin board operator,
was protected by the First Amendment from actively monitoring its
system for illegal materials.  Such First Amendment protection
similarly prohibits any attempt to force bulletin board operators
to monitor their systems for hate speech.

3.   Is There Any Permissible Means of Countering the Role of
     Telecommunications in Hate Crimes?

     While opposing all violations of the First Amendment
protection of telecommunications, SEA recognizes the legitimate
Congressional need to stamp out hate crimes.  SEA asserts that
there are means of combating the use of telecommunications in hate
crimes which do not infringe on First Amendment rights.

     The primary use of telecommunications should be, as NTIA
itself puts it, to create "more speech" about hate crimes.  Public
education by the news media on hate crimes and the enormous,
unjustifiable damage they cause can lead to a reduction of such
crimes in the long term.  Congress should also investigate use of
its spending power (as opposed to attempts at speech regulation)
to add the government's voice to the discussion of hate crimes,
thus increasing public education on the subject beyond that
provided by news media fueled primarily by market forces.

     Another possible model for Congressional action is to develop
telecommunications channels to assist those who are working on hate
crimes and other community problems.  For example, there are
projects now underway in New York City that use electronic
communications to increase contact, support and a sense of shared
community among its citizens, and reduce the incidence of hate
crimes.  These include Youthline, a project to give Community Board
youth coordinators city-wide online access to the full range of
city youth services, and the Stop-the-Violence project, currently
developing a computer bulletin board to assist in reducing racism
and achieving other City and community goals.

     Another possibility is to develop a new federal hate crime
law, modeled after the existing federal mail fraud and wire fraud
statutes.  Such a law would define "hate crimes" as a federal
offense, and prohibit the use of interstate telecommunications
facilities in the commission or attempted commission of hate
crimes.  It would be essential that the law be speech-neutral.  The
use of telecommunications facilities to commit crimes would be
prohibited, but not any expression of views or positions, even
views properly characterized as "hate speech."  One test of the
legality of any such law under the First Amendment would be whether
it would permit people to broadcast "hate speech" viewpoints 24
hours per day to many thousands or even millions of people, without
becoming liable for committing a hate crime.  The SEA would be
happy to work with the NTIA and other federal organizations that
may wish to pursue drafting such laws, to assure they do not
inadvertently restrict speech or other First Amendment rights.

     There are other areas which Congress might legally explore,
but which are not supported by SEA.  One possibility is use of the
FCC broadcast licensing mechanism to regulate hate speech under the
"public interest" mechanism.  Such regulation could legally be
applied to radio frequency broadcasters only, and only through the
existing license granting or renewal mechanism.  Again, SEA does
not endorse such an approach, since it is still essentially a
penalty to those who express certain ideas or viewpoints, and would
have a certain chilling effect on speech.

                           Conclusion

     NTIA's current task of investigating telecommunications and
hate crimes could have far-reaching effects on telecommunications
regulation in this country.  NTIA is charged with making
recommendations to a Congress interested in the "role
telecommunications play in hate crimes," and it has been given an
exceedingly short time to perform its research and develop policy
proposals.

     Given the limited time available, it may be difficult for NTIA
to fully consider all sides of the issues.  Nonetheless, it is
vitally important to insure that our government does not unlawfully
abridge our First Amendment rights of free speech in the name of
regulating hate crimes.

     With this letter, SEA has sought to help NTIA become more
fully aware of the scope of our free speech rights in the
telecommunications area, and the dangers to those free speech
rights posed by the hate speech regulations suggested by Congress
and NTIA.  It is extremely important that NTIA's research and
recommendations be directed at goals that are not only worthwhile
in themselves, but also lawful under the Constitution.

     Public discussions of hate crimes are probably among the most
important public discussions we can have in our society, and the
First Amendment exists to make sure we can keep holding such
discussions.  Legal measures directed against hate crimes are also
important, but they cannot be used to stifle the public discussion.

                              Sincerely,

                              Lance Rose
                              Member, Board of Directors

SEA Board of Directors:

Stacy Horn, Chair
Joseph King
John McMullen
Simona Nass
Lance Rose
Alexis Rosen
Paul Wallich

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