Opinion

In Curtailing Hate Speech Online, Will Privacy Sometimes Have To Take a Backseat?

From the cover of the ADL’s Responding to Cyberhate: A Toolkit for Action

This spring has been a mournful time. We mourn for the victims and families of the Boston Marathon bombing. We also mourn for the loss of Anne Smedinghoff, a foreign service officer in Afghanistan killed by a terrorist's explosive while delivering books to Afghan children. That loss is especially painful for those of us in the privacy community who know Anne’s dad, Tom Smedinghoff, a peerless colleague whose grace in the face of unimaginable tragedy has been inspirational. Our heartfelt sympathy goes to Tom and his wife, Mary Beth.

In the aftermath of tragedies such as these, we are left to ask: “What motivates people to burn with hate to such a degree that they take innocent lives?”

Experts in terrorism, psychologists and sociologists study the roots of terrorism, and their answers are complex. But the origin of hate is simple. All hate starts with words. Words of prejudice, words of discrimination, words of paranoia. What triggers people to act on those words of hate is the complex question.

The Internet, as the platform of the modern era for communication, is the megaphone of hate. For nearly 20 years, I have been studying the problem of online hate in my role as a leader of the Anti-Defamation League (ADL), the 100-year-old civil rights organization where I serve as National Civil Rights chair. In June, a book I co-authored with Abe Foxman, Holocaust survivor and the national director of the ADL, Viral Hate: Containing its Spread on the Internet, will be published by Macmillan Palgrave.

In the book, we examine the prevalence of online hate—in websites, through social media, even in comments to news stories—and document its link to hate crimes. We also discuss how online hate is the pollution of the digital age, degrading the Internet experience for many, discouraging others from participating and serving to mislead and sometimes recruit susceptible young people into lives of violence.   

We examine the remedies available to society, of course discussing the First Amendment to the U.S. Constitution. We conclude that even where the First Amendment is not a constraint on legal regulation of hate speech (since rarely is speech out of bounds in the U.S., no matter how repugnant), the law is a poor tool to deal with it, the judgments on what is or is not hate speech are not easy, and if made by authorities seeking more to censor than protect, can stifle free expression. Moreover, the viral nature of the Internet means that tamping down speech does not prevent it from re-appearing.

We also discuss the issue of anonymity—the shield that protects the identities of people online. Without question, anonymity and the privacy it provides are powerful tools for expression. From the pre-Revolutionary days of the anonymous pamphleteers challenging King George to the gay teen seeking information on coming out, anonymity has been a force for good.

But anonymity also means that people can say and publish things that are hurtful and hateful without being identified, without standing behind what they put out there. It is axiomatic that when a person is identified with his or her statements, he or she will be more careful about what they say. It is frequently the anonymous, careless, offhanded comment or posting filled with slurs and invective that adds to online hate. Odds are that if people knew they would be identified with their thoughtless slurs, they would not publish them.

In the book, and previously in a New York Times column, I have suggested that Internet intermediaries can play a role, in appropriate circumstances, to limit online anonymity in an effort to curtain online hate. The Times itself has come up with an approach that publishes the comments to news stories of readers who use their real names first, relegating anonymous (pseudonymous) comments to the end of the queue. 

Facebook also recently came up with a thoughtful and innovative solution to the problem of anonymous online hate. While Facebook’s real-name policy means that a user will be identified with his or her posts, Facebook Pages allow for anonymous postings. Some of those postings cross a line—not the Community Standards line Facebook sets, which allows the immediate deletion of the content—but a line that when crossed can lead to distress for, and potential harm to, minorities. The frequently invoked example is humor that has racist, homophobic or anti-Semitic meaning. When such content appears on Pages and is brought to Facebook’s attention, Facebook asks the Page “administrator” (a Facebook user) to have his or her real name associated with the Page. Not surprisingly, most users prefer to remove the content rather than be associated with it.  

In the privacy world we populate, the debate usually is how to strike a balance between commerce and privacy, or law enforcement and privacy. In the world of hate speech, the balance between anonymity and its useful role in free expression and the harm anonymous hate speech can cause requires a careful look at circumstances when privacy needs to give way to reducing the increasing instances of online hate.

Words of hate lead to acts of hate. And as important as words are, it is vitally important in this mournful season of explosions and loss to address the hate underlying the tragedies we experience all too often. As a privacy lawyer and a privacy advocate, when it comes to hate speech, privacy may have to take backseat.

More from Christopher Wolf

About the Author

Christopher Wolf leads the global privacy practice at Hogan Lovells US LLP and has practiced privacy law since the earliest days of the discipline. Wolf also is the founder and chair of the Future of Privacy Forum. He was the editor and lead author of the first PLI treatise on privacy law and is a frequent author and speaker on privacy and data security issues. Wolf was the first privacy lawyer to testify before the Senate Judiciary Privacy Subcommittee and is a member of a group advising the OECD on the OECD privacy guidelines.

Wolf is a cum laude graduate of Bowdoin College and graduated magna cum laude Order of the Coif from the Washington & Lee University School of Law. He participated in the general course at the London School of Economics. Following law school, he clerked for U.S. District Judge Aubrey E. Robinson Jr. in Washington, DC. He has practiced law for 32 years. Wolf is active in charitable organizations and serves on the boards of the Anti-Defamation League, WETA Public Broadcasting, Food & Friends (a social services agency), the George Washington University Hospital and Young Concert Artists.

See all posts by Christopher Wolf

Comments

  • April 18, 2013
    Stephen A. Frew
    replied:

    I am afraid that I do not see how restrictions on “hate speech” can be anything but subjective opinions or government censorship that can label anything they disagree with or wish to suppress as “hate speech”.  That is the very practice that gave rise to the Constitutional protection of free speech and freedom of association as part of our Revolution.

    Privacy or anonymity is a fundamental element that is necessary for free speech and protection from retaliation.  In today’s setting, having a politically incorrect opinion is a personal, financial, and physical danger that seems to waive all of one’s Constitutional protections.

    Hurt feelings or social approval are not the legal standards of the Constitution, and having been born with a physical handicap I am no stranger to hurt feelings and bullying.

    I find it saddening to see advocates for privacy so willing to throw it under the bus and concede Constitutional rights in favor of prior restraint on “hurtful” or “harmful” opinions or speech.  I would suggest that repressed expression does not reduce the risk of hateful actions, but actually intensifies the emotion and increases the risk of violence.

    The Constitution takes the founders’ view that expression of even reprehensible views in the public forum and discourse contributes to the ultimate civic welfare.  Privacy is essential to that, no matter how repugnant the views expressed.

  • April 18, 2013
    Christopher Wolf
    replied:

    Thanks, Stephen, for that important perspective.  I am sorry I did not make clearer that my suggestion that anonymity sometimes yield was not at all a suggestion for government involvement or legal restrictions, but instead a proposal for Internet intermediaries to exercise their own First Amendment rights with respect to content they facilitate.  To be sure, the private party restrictions on anonymity should be the exception, but there are indeed cases where they should be imposed so that minorities are not intimated from exercising their own speech rights and so that a culture of hate does not incite and inflame.  And I am afraid I do differ with you on whether hate speech can be defined; there may be cases at the fringes, but racial, religious, and sexual orientation epithets squarely fit within the category, for example.  Thanks for engaging on this,

  • April 19, 2013
    Jason Cronk
    replied:

    The intermediation of content that Christopher suggest is something that free speech activists have long feared. One of the primary (political) benefits of the Internet has been the democratization of communications: the ability of a single person to reach a vast audience, inexpensively thus accelerating the marketplace of ideas. However, with almost all internet “spaces” and the network itself being owned by in large by corporate entities, it puts those corporations in the uncomfortable position of being intermediaries between speakers and their audiences. Corporations, unlike the government, are not subject to First Amendment/Free Speech restrictions but are subject to other pressures which tend to make them more restrictive on speech than free. This puts friction in the marketplace of ideas and only serves to sow the seeds of discontent. We do not need the Disnefication of the Internet.

    The freedom to speak anonymously can not be reserved for that which is only marginally different than your position, it must be preserved for those speakers on the absolute margins of society.

    You can read more about my take on Facebook’s real name policy and enforcing community standards on my blog an http://privacymaverick.com/2013/03/14/facebook-and-real-names-and-social-circle-segmentation/

    I would also point readers to read Westin’s classic Privacy and Freedom to remind themselves of the importance of privacy/anonymity to a free society.

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