The Changing Legal Landscape Of Hate Speech & Content

In the legislative world, the Internet is still a newcomer. It’s challenging to figure out how laws intended to apply to real-world behavior should apply to online activity. For example, if a person threatened to assault someone in the real world, would the same laws apply to a threatening comment made online?

But in many ways, the legal landscape is changing rapidly. Lawmakers and judges are recognizing that when people interact online, dangerous, harmful, or criminal activities can take place. How do the laws apply to hate speech and harmful online communication?

Kevin Bollaert and Revenge Porn

On February 2, 2015, Kevin Bollaert was convicted in California for operating a revenge porn website. The website allowed jilted ex-lovers to post nude or suggestive photos of their exes, in some cases even posting their name, hometowns, employers’ names, and links to social media accounts. Bollaert was convicted under California’s relatively new anti-revenge porn law. Due to the multitude of plaintiffs, Bollaert was sentenced to 18 years in prison and $10,000 in restitution.

“Revenge porn” is a form of hate speech where a person’s images, videos, or information will be posted online. It’s a sexual shaming technique intended to punish or get revenge against former lovers or against anyone who a person is angry at.

Sixteen states now have laws to prevent revenge porn, and these laws vary depending on the state. The law used in Bollaert’s conviction was only passed on September 30, 2014, so Bollaert’s case is a judicial confirmation of a relatively new law.

Hate Speech, Revenge Porn, and the First Amendment

Hate speech is any speech that attacks a person or group of people on the basis of specific characteristics, like race, sex, sexual orientation, disability, or religion. As abhorrent as hate speech may be, the law generally does not prohibit someone from being abusive. In the United States, many groups engage in hate speech that is protected under the First Amendment as free speech, so the law must define hate speech more narrowly. Hate speech can only be prosecuted as hate speech if it has the potential to incite violence of prejudicial action against a person or group.

In the early days of the Internet, people who built hate-based websites or who made online comments that contained “fighting words” (words that tend to incite violence) were often held to be innocent of hate speech provisions, on the grounds that online communication was unlikely to incite violence in the real world. However, as we can see with revenge porn, not all forms of online speech are victimless, and online communication has the very real potential to incite violence or harm in the real world.

Victims of revenge porn (in the Bollaert case and in other similar situations) often report real-world harassment and discrimination as a result of online activities. Victims have reported being thrown out of their homes, being fired from their jobs, receiving threatening phone calls or letters delivered to their home address, and even being faced with stalkers or with people approaching them in person to threaten violence against them. Clearly, online communication has the potential to incite real-world violence, and this is the impetus behind many of the more recent laws.

The Changing Legal Landscape

Because it is now generally accepted that online communication has the potential to result in real-world harm, other states are adopting or updating their laws regarding revenge porn, defamation, and hate speech to reflect the potential harm of online communications.

Whitney Gibson, an attorney specializing in Internet defamation, says, “February’s ruling in Mr. Bollaert’s case and this subsequent sentencing is a big deal… In the short term, given the current construction of the Communications Decency Act – which grants most websites immunity for statement posted on the websites by third party users – I do not expect consumer complaint websites, such as Ripoff Report, to be subject to similar consequences. But that could eventually change.”

Hate speech, defamation, and revenge porn can all be carried out offline, where civil and criminal penalties are already well-established. But as people become more aware of the ways in which online communication can lead to real harm in the offline world, stronger laws are being drafted to govern Internet speech and more lawmakers and judges are taking online hate speech, defamation, and revenge porn seriously.

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