Reasons for restricting our speech range from national security to protecting our children from obscene material. The tests for establishing which speech is protected and which is not are as elusively deceptive and confusing as one can imagine. One is never assured, even with exhaustive understanding of the law, how a panel of justices or a jury will interpret any given case in certain matters of speech. Despite confusion in some areas, the United States' legal history of common law does provide some consistency in others which allow us to make some educated guesses about how some new issues may rest in the eyes of the courts.
My particular interests in this paper are the issues of uncivil and unwanted online communications. These are two areas that have raised controversy between one person's freedom of speech and another person's privacy rights. With unwanted communications, the right to privacy has been articulated as the right to be left alone. With uncivil language as it will be defined in this paper, it has been viewed as a protection of reputation.
Though uncivil language can be interpreted more broadly, I will define it as libelous, slanderous, or hate speech. I will view unwanted communications in terms of both commercial and private communications. By examining current federal and state statutes and Supreme Court decisions in these areas, I will determine if there is consistency that may allow us to predict laws for online communications where none currently exist.
The first such federal law was passed as part of the Postal Revenue and Federal Salary Act of 1967. This made it illegal to continue mailing pandering material to a person once informed that such solicitations were not wanted. Under the statute, the addressee notifies the Postal Service that the advertisements were unwanted. The Postal Service issues an order to the advertiser to discontinue mailings to the addressee. If mailings continue after thirty days, the Postal Service notifies the Attorney General. If mailings do not cease after a compliance order has been issued by a district court of the United States, the advertiser is punished for contempt of court.1
This statute was challenged in Rowan v. Post Office. Though the statute contained language that could be interpreted in various ways, the United States Supreme Court held that the language restricting any further mailings from the advertiser to the addressee, regardless of content, was the only constitutional construction. To allow interpretation based on content of the advertisements would place the Postal Service in the role of censor.2 Presumably, though the statute was aimed at commercial mailings, application could be made towards private letters as well. Since the Rowan decision makes content irrelevant and "allows the addressee unreviewable discretion to decide whether or not he wishes to receive any further material from a particular sender," 3 it seems implausible that it could not be applied to private communications as well as commercial.
The next such federal law was passed in 1991 regarding unsolicited telephone and facsimile machine advertising. The Telephone Consumer Protection Act of 1991 placed restrictions on commercial telephone calls using automated dialing systems and using facsimile machines as well as continuing advertising calls. The use of automated dialing systems and facsimile machines were considered too intrusive and too costly to the recipient. It was also felt that an individuals right to privacy should be protected by requiring advertisers to discontinue calling if the recipient so requested, consistent with the Postal Service regulation mentioned previously. 4 Any advertiser failing to follow these regulations is subject to a State prosecution on behalf of the individual for no less than $500 and no more than $1500. 5
Despite these efforts to protect us from unwanted communications, there is currently no federal law which restricts unwanted electronic communications. Michigan has taken a progressive step in this direction to a limited extent. In 1992, an anti-stalking law was enacted which specified electronic communications as an example of a form of contact. Under its provisions, a person is guilty of a misdemeanor if he or she repeatedly makes unconsented contact with a person that would reasonably make that person feel terrorized, frightened, intimidated, threatened, harassed or molested and that actually causes the person to feel terrorized, frightened, intimidated, threatened, harassed or molested. 6 This law has been held constitutional by the Michigan Court of Appeals, but has not yet been challenged in a reported federal case. 7
The Computer Fraud and Abuse Act of 1986 covered unauthorized accessing of United States government computer systems and incidents which affects interstate or foreign commerce. 8 This statute was amended by the Computer Abuse Amendment Act of 1994 to include intentional transmission of information which "will withhold or deny, or cause the withholding or denial, of the use of a computer, computer service, system or network, information, data or program." 9 This amendment makes the law applicable to instances of electronic mail bombing, where one user sends large numbers of electronic mail messages to another individual or a mailing list with the intent of annoying the recipients or causing the recipients' host computers to crash. Such messages are typically not wanted by the recipient and, though the content of the messages involved in the bombing is not relevant to the statute, often contain hateful, profane, or otherwise uncivil speech.
It is also worth noting the issue of unwanted broadcast communications. Contrary to the comment made in Rowan that a television viewer or radio listener may "twist the dial to cut off an offensive or boring communication and thus bar it from his home," the United States Supreme Court decided in F.C.C. v. Pacifica Foundation that this method of barring unwanted communications, as related to offensive broadcast material, was not acceptable. 10 One reason given, in contrast to Rowan, was that the ability to turn the dial does not keep the unsuspecting viewer or listener from being exposed to indecent material in his home in the first place. 11
Michigan has defined libel as "falsely and maliciously, by word, sign, or otherwise accusing, or imputing to another the commission of any crime or any infamous or degrading act, or imputing or attributing to any female a want of chastity." 12 Similar definitions exist in statutory or common law in all 50 states. 13 Given the language of the Michigan definition, the specific medium of expressing the libel is irrelevant.
In general, libel or slander involve the utterances being made to other people besides the wrongly and maliciously accused. This should not be taken to mean that similar utterances expressed only to the individual being referenced are allowable. Again, Michigan's law broadly enough defines libel to include one on one communications with the falsely and maliciously accused.
However, it is not enough only to use offensive language to classify speech as constitutionally unprotected for reasons of creating a breach of the peace. If such language is used as a personal insult towards a person, then they would fall within the unprotected speech of "fighting words," those "which by their very utterance inflict injury or tend to incite an immediate breach of the peace." 14 However, when directed towards no specific individual, such language reasonably cannot be construed as fighting words. 15
Michigan currently has a law on the books which does seem to restrict the mere utterance of certain types of language. It is a misdemeanor to "use any indecent, immoral, obscene, vulgar or insulting language in the presence or hearing of any woman or child." 16 However, given the decision in Cohen, the scope of this law is greatly limited. As stated in Prak v. Gregart, it is entirely possible to interpret this law to apply only to fighting words. 17
Hate speech has been of great concern to many people. Groups which promote hate are plentiful on the Internet. The non-profit organization, Hate Watch, maintains World Wide Web site monitoring hate group activities on the Internet to raise awareness among the Internet community. Though much hate speech could be classified as fighting words, they cannot be prosecuted as such online because "a listener sitting at home or work is not likely to be provoked into immediate lawlessness upon receiving a hate message as might occur in a face-to-face confrontation." 18
However, Illinois passed a law in 1949 which made it illegal to "manufacture, sell, or offer for sale, advertise or publish, present or exhibit in any public place in this state any lithograph, moving picture, play, drama or sketch, which publication or exhibition portrays depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, color, creed or religion which said publication or exhibition exposes the citizens of any race, color, creed or religion to contempt, derision, or obloquy or which is productive of breach of the peace or riots." 19 In interpreting this law, the United States Supreme Court paralleled its language with that of the definition of criminal libel in all 50 states and found the Illinois Supreme Court's statement that this law "is a form of criminal libel law"20 valid. In so doing, hate speech laws constructed as group libel laws were declared constitutional. Also, the Illinois law was not constructed in such a way that an immediate breach of the peace was required as defined for fighting words so, if it had not been repealed, could be applied to online communications.
While Michigan has never followed Illinois' lead in establishing a group or class libel law, the University of Michigan, concerned by a perceived increase in racial tensions on its campus, tried establishing a code prohibiting hate speech in 1988. The code applied specifically to "educational and academic centers, such as classroom buildings, libraries, research laboratories, recreation and study centers." In these areas, persons were subject to discipline for any behavior that stigmatized or victimized "an individual on the basis of race, ethnicity, religion, sex, sexual orientation, creed, national origin, ancestry, age, marital status, handicap or Vietnam-era veteran status" and that involved "an express or implied threat" or had "the purpose or reasonably foreseeable effect" of "interfering with an individual's academic efforts, employment, participation in University sponsored extra- curricular activities or personal safety" or "created an intimidating, hostile, or demeaning environment for educational pursuits, employment or participation in University sponsored extra-curricular activities."21
The language and application of this code in several cases punished, or unjustifiably pressured people to submit to "voluntary" sanctions, for constitutionally protected speech.22 Though the code was declared unconstitutional, it served as an example of Justice Black's concern in his dissenting opinion in Beauharnais that "in arguing for or against the enactment of laws that may differently affect huge groups, it is now very dangerous indeed to say something critical of one of the groups."23
As television and radio in Pacifica, USENET newsgroups and World Wide Web sites may be considered broadcast media. With the passage of the Communications Decency Act of 1996, Congress tried applying the Pacifica rules to the Internet. 24 Until the Supreme Court reaches its decision in Janet Reno v. A.C.L.U. in June, it is undetermined how the Internet will be viewed in the United States legal system.
It is conceivable that it will be seen as telephone solicitations and Postal Service deliveries, which may be barred by request of the recipient or by filtering software the recipient runs on his computer. It is also conceivable that it will be viewed as a broadcast medium, though, unlike the passive reception of television and radio signals, requiring some positive action of the recipient to receive, and subjected to tighter restrictions based on content so that the initial damage of being unsuspectingly exposed to offensive material in the home is negated.
The other distinction that will determine the outcome of Internet regulation is whether it is considered a private area or a public forum. If it is seen as a private area of our house, though somewhat displaced physically from that which are viewing as with television and radio, then keeping unwanted communications away will likely warrant more restrictive governmental measures as allowed in Pacifica and, to a lesser extent, in Rowan and the Telephone Consumer Protection Act of 1991. However, if it is seen as a public forum, then we cannot expect to exert privacy claims to shield us from unwanted communications any more than we can expect to never be offended by communications in any other public place. 25 Realistically, given the differences in ability to communicate via the Internet, for instance electronic mail versus USENET newsgroups, it is possible, and reasonable, for both outcomes to prevail in the end.
Though there are some interesting difficulties with unwanted communications online, the issue of uncivil language presents many more problems. As mentioned previously, in matters of purely indecent speech, we must wait for the Reno decision to know the legal standing. However, when considering libel, fighting words, and hate speech, we run into some tricky areas.
Certainly, libel can, and has, occurred online. Current laws regarding libel of individuals have held up fairly well online since most legal constructions were medium independent from the beginning.
The specific issue of fighting words, however, does not hold up in cyberspace. As noted earlier, it is highly unlikely that the same words which would provoke an individual to violence when expressed face-to-face will do so when received from online in the privacy of his home. However, as defined in Chaplinsky, fighting words need only inflict injury. 26 Despite this, it is difficult to determine the injury inflicted by a person's words suitably enough to start a prosecution and most citations in succeeding decisions have not included the injury provision.
Though hate speech could certainly be considered fighting words, the difficulty in assessing injury or the words being directed towards an individual has prevented many prosecutions. Since much hate speech takes place in non-confrontational manners, such as over the Internet, the element of possible provocation to an immediate breach of the peace is removed. Given this situation, it seems the only possible route is to treat hate speech as group or class libel. However, not many states have such statutes. Illinois, as stated earlier, had such a law that was upheld by the United States Supreme Court in Beauharnais, but has since repealed the law. Though the United States Supreme Court allowed group libel, it is perhaps the dangerous applications of such laws as foreseen by Justice Black and as shown in John Doe v. University of Michigan which keeps more states from pursuing that course of action.
As many anti-hate groups advocate, regardless how inflammatory and infuriating hate speech may be, it often proves more beneficial to allow their public outcries. Without public exposure, their claims cannot be answered and their hatred spreads unchecked. The technique does not eradicate hate speech, but it does make us aware of whom we should watch.
2Rowan v. Post Office Department, 397 U.S. 728 (1970), 735
3Rowan, 397 U.S. 728 (1970), 728
447 U.S.C. 227 (1994 Ed.); Pub.Law 102-243; 105 Stat. 2394-2402
547 U.S.C. 227(c)(5)
6M.C.L. 750.411h; Pub. Acts 1992, No. 260
7People v. White, 212 Mich.App. 298 (1995)
818 U.S.C. 1030 (1994 Ed.); Pub.Law 99-474; 100 Stat. 1213
9Pub.Law 103-312; 108 Stat. 2097-2099
10F.C.C. v. Pacifica Foundation, 438 U.S. 726 (1978)
11Pacifica, 438 U.S. 726 (1978)
12M.C.L. 750.370; Pub. Acts 1879, No. 192
13Beauharnais v. Illinois, 343 U.S. 250 (1952), 256
14Chaplinksky v. New Hampshire, 315 U.S. 568 (1942), 572
15Cohen v. California, 403 U.S. 15 (1971), 20
16M.C.L. 750.337; Pub. Acts 1897, No. 219
17Prak v. Gregart, 749 F.Supp. 825 (1990)
18David Loundy, "Constitution protects all modes of speech," Chicago Daily Law Bulletin, May 11, 1995, p. 6
19Ill. Rev. Stat., 1949, Ch. 38, Sec. 471
20408 Ill. 512, 517
21John Doe v. University of Michigan, 721 F.Supp. 852 (E.D.Mich. 1989), 856
22John Doe, 721 F.Supp. 852 (E.D.Mich. 1989), 865-866
23Beauharnais, 343 U.S. 250 (1952), 273
24Telecommunications Act of 1996, Pub.Law 104-104
25Cohen, 403 U.S. 15 (1971)
26Chaplinsky, 315 U.S. 568 (1942), 572