FC: Sen. Hatch wants to ban online speech endorsing crimes

[Declan McCullagh <declan () well com>]

Sen. Hatch is not an idiot, but when it comes to free speech, the bills he
proposes are relentlessly idiotic. Sure, he may intend to target hate crimes,
but depending on how his legislation is drafted -- if it applies to
intellectual property, for instance -- I can see one of these kids going to
jail:

JON1: "anyone got the new version of BORGSLAYER for windoze?"
WAREZD00D: "check out http://127.0.0.0 -- dl it quick before it goes down"
JON1: "thx"

Other felons would include one teenager suggesting to another in email that
they drive by Harry's house and smash his mailbox with a baseball bat. That
may
not be what Hatch intends, but you wouldn't know it from his speech below, and
the law of unintended consequences is not to be denied. Not only would such a
law be unconstitutional, but it would be pretty damn stupid too.

-Declan
PS: Why should this apply just to the Internet? Why not newsletters too?

*******

From: "Volokh, Eugene" <VOLOKH () mail law ucla edu>
Subject: Sen. Hatch suggests ban on Internet speech advocating the commiss
        ion of violent crime
Date: Wed, 15 Sep 1999 20:18:25 -0700
Mime-Version: 1.0

        I'm by no means a reflexive Hatch-basher, but here he seems to be way
out of line:  "I am also contemplating a measure to make it a crime to
knowingly or intentionally advocate on the Internet the commission of a crime
of physical violence against a person or the property of any individual or
group or class of individuals" -- seems pretty clearly unconstitutional.




      
<http://www.senate.gov/~judiciary/91499ogh.htm>http://www.senate.gov/~judici
ary/91499ogh.htm 

        September 14,
1999
Contact:
Jeanne Lopatto, 202/224-5225 

                                   Statement of Sen. Orrin Hatch 

                                Before the Committee on the Judiciary 

                                Hearing on Hate Crime on the Internet 

         Good morning and welcome to today's hearing on hate crime on the
Internet. We are pleased to have five impressive witnesses whom I shall
introduce in short order. 

         The Internet is a technology that heralds a breadth of understanding
and education never before imagined. It holds a promise for disseminating
knowledge and breaking down barriers to learning and understanding that is
unrivaled, and I have accordingly been a staunch proponent of efforts to keep
the Internet unregulated and competitive. 

         However, today's hearing will focus on ramifications of Internet
technology that can only be described as troubling. 

         Unfortunately, for many parents, one of the timeless truths of good
parenting - to teach children not to speak with strangers - has passed from
the
realm of the possible into a relic of a bygone day. We live in a time,
according to a recent poll, when a full 60% of parents disagree with the
proposition that the Internet is a safe place for kids. 

         And no wonder. In a technology seldom understood as well by
parents as
by their children, the universal 
information-sharing neighborhood established by the Internet has also come to
shelter a league of misfits intent on marketing their brand of hate to
America's future. 

         The knowledge of our children's lives - without which we cannot hope
to fulfill our responsibilities as parents - seems increasingly out of our
grasp. And the imagination and introspection that are so essential to a
child's
development are threatened by a technology where the power for advancement of
knowledge exists alongside the possibility of contamination through hate. 

         The strangers we warned our children not to speak to are, I fear, the
very ones using the anonymity promised in cyberspace to prowl for children to
whom they could never hope to endear themselves on a street corner. This is a
serious situation indeed. 

         The facts set out in newspaper accounts and reports by interested
parties are simply staggering. One of our witnesses today hails from an
organization - the Southern Poverty Law Center - which individually tracked
sites for 254 hate groups in January of this year - up 50% from one year ago.
And another group represented here - the Anti-Defamation League - estimated
the
presence of some 500-600 hate groups on the web this June. 

         But numbers hardly tell the story; the websites themselves do. They
are not simply crude websites with blatantly racist or anti-Semitic messages.
These groups are involved in a concerted effort to recruit college-bound,
middle and upper-middle-class kids ... kids who are educated, energetic and
articulate ... in other words, precisely the type of kid you wouldn't
expect to
see marching in a neo-Nazi parade. 

         And these wolves come in sheep's clothing. To fulfill their
recruitment objectives, these hate groups can be 
remarkably sophisticated, carefully avoiding obvious and explicit appeals to
racism and anti-Semitism. 

         Sometimes, the sites are disguised as personal home pages, with
displays about innocent enough sounding topics as city biographies or
historical figures. Scroll down from sites about Santa Barbara
(California), or
Martin Luther King, Jr., however, and what you will find is a rancid
torrent of
neo-Nazi invective. 

         These sites can be audience-specific, too, in their marketing
efforts.
One site peddles hatred to children, and is replete with a bright,
crayon-colored web page consisting of white supremacist symbols and a
crossword
puzzle full of racist clues. Other sites seek to recruit women, and emphasize
family issues, preach the desirability of the death penalty for racists [ev:
rapists?], and encourage women to fight alongside men in their so-called white
power struggle. 

         To the extent these groups claim to disavow violence, the facts speak
for themselves. The World Church of the Creator appears to have played a
pivotal role in the life of Benjamin Nathaniel Smith, the 21 year-old whose
cowardly evil we recall from his July 4 shooting of African-Americans, Jews
and
Asians. In addition, literature from this group was found near synagogues
burned this June in Sacramento, California. 

         Surely, there is much to be concerned about. The day of the
anonymously wrapped racist pamphlet has been supplanted by a technology that
enables any small time fear monger - with a home computer and incidental costs
- to possess a virtual megaphone from which to broadcast widely his message of
hatred. 

         We must be vigilant and prompt in our efforts to begin eliminating
hate on the Internet, but we must also do so with exactitude. From this
complicated maze of issues, there is surely no simple answer. And with the
First Amendment as our country's first premise, we know that any solutions we
endorse must recognize that the surest way to defeat the message of hate is to
hold it under the harsh light of public scrutiny. 

         However, where speech invades other protected areas, Congress must
act. Responsibility by Internet companies and parents (in part through the
filtering devices we will hear something about today) will likely be the first
line of defense against these problems. But more seems to be needed . 

         Throughout the course of this hearing and afterwards, I will be
interested to hear from the witnesses their view of the adequacy of the
current
state of the law. And I will ask the witnesses whether more might be done by
Congress, consistent with the First Amendment, to better enable the
elimination
of certain types of hate on the Internet, such as non-protected speech that
clearly advocates an imminent act of violence. 

         As the law currently stands, in addition to various civil remedies,
the federal books authorize the prosecution of hate crimes committed against
victims engaged in certain federally protected activities. I am pleased to
have
with us today an Assistant United States Attorney from Los Angeles who is
responsible for securing, under this law, the first conviction against a hate
crime assailant for acts taken on the Internet. 

         But I have some preliminary thoughts on other efforts that Congress
might explore, and I will be eager for the witnesses' views on them. 

         I have already sought to exercise leadership in this area in various
ways: through the introduction of legislation that aims to make filtering
technology more readily accessible and that aims to criminalize the use of the
Internet to teach bombmaking. 

         An additional idea I am now considering aims to encourage Internet
service providers to implement policies prohibiting the posting of material
that intentionally incites violence against an individual or group. Many
companies already do as much to eliminate from the Web child pornography or
the
posting of illegally pirated copyrighted materials. 

         Such a proposal would include provisions to help Internet service
providers identify those sites that illegally incite violence through hate
speech. 

         It is my hope that ISPs will then put some procedures in place and
take down a site so designated. To encourage the ISPs in implementing such a
procedure, we might grant them certain immunities from any liabilities they
might otherwise face. 

         I am also contemplating a measure to make it a crime to knowingly or
intentionally advocate on the Internet the commission of a crime of physical
violence against a person or the property of any individual or group or class
of individuals. Maybe, with this legislation, we will be able to deter heinous
incitements to violence not yet committed on the Internet. 

         I look forward to hearing from each of you your thoughts and comments
on these proposals. 

         Finally, prior to closing, I would like to announce that today I am
re-issuing an updated timely and valuable report prepared by the majority
staff
of the Committee on the Judiciary. The updated report includes information
about the prevalence of Internet hate, as well as recommendations about
shielding children from the negative impact of violent media. I hope that this
report, entitled "Children, Violence, and the Media-A Report for Parents and
Policy Makers," will further the discussion about the flood of media violence
in this country- including on the Internet and what can be done about it.
After
all, the problem of youth violence is a complex problem which demands a
comprehensive solution one which deals with the need to empower parents, to
make sure our schools are safer, and to improve enforcement, deterrence and
prevention. 

                                              # # # 




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