Date: 29 Apr 93 08:47:10 EDT From: Lance Rose <72230.2044@COMPUSERVE.COM> 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 Downloaded From P-80 International Information Systems 304-744-2253