Globally, that expresses a “true threat” to be

Globally, the Internet has transformed
into a superior medium of communication; as technology continues to advance the
American judicial system governing the issue on what constitutes harm online continues
to be unclear. The political landscape currently addresses hate speech in the cyberspace
media landscape with laws that were written before the Internet existed. It’s
time our society alters its legal doctrine to accommodate the scenario of a website
that incites others to commit lawless acts of violence before it becomes the
status quo.

Internet has allowed humans to interact and gather information worldwide which
quite literally affects nearly every aspect of modern life, however it has also
become a platform for hateful groups to form and release dangerous information inciting
violence. There are virtually no regulations on what precisely constitutes harm
on the Internet, essentially social media providers are free to espouse any definition
of hate they fancy. This topic raises the question what exactly does it take
for online speech that expresses a “true threat” to be considered un-protected speech
especially on internationally used social media platforms such as; Facebook, and
Twitter? This paper will go further into detail discussing the case of City of Chicago v. Giles and the tests
used to decide a hate speech case and how they are applied in today’s political

To begin, the landmark case Brandenburg v. Ohio was significant for
developing the modern incitement test that determines whether speech would
provoke imminent lawless action. It took the Brandenburg and Anthony
Elonis case, along with many others, for the Supreme Court to realize the
inconsistencies in the law and how broad the tests in determining what is
considered protected speech on the Internet. In order to pass the Brandenburg, test the speech must fulfill
three distinct elements: intent, imminence, and likelihood, “directing to
inciting or producing imminent lawless action, and the speech is likely to
incite or produce such action.” On deciding whether speech is protected or
unprotected this is the test that our Supreme Court has adopted across all social
media platforms. However, the problem that surfaces when using this test is
defining what constitutes hates, which is extremely subjective to each case. The
courts must be able to clearly identify the intent of the speaker’s words in
order to justify the speech as unprotected under the First Amendment, and though
intent can be proven the uncertainty prevails because the virtual sphere is
always connected to a far-reaching, indeterminate audience precluding it from being
‘likely’ to incite violence. There must be a connection between words and
actions to pass the incitement doctrine, thus, a website will fail to pass the
imminency requirement. The time between the speech and the potential violence
is impossible to predict with certainty, therefore the imminence element of the
Brandenburg test will never be satisfied. 

There are no specifics in the Brandenburg test that
states if intent to harm is only physical or does it include emotional harm as
well. Is it considered hate speech when online discourse turns into a
conversation encouraging intimidation resulting in emotional harm? In this case
of City of Chicago v. Giles, Robert
Giles a strong opponent of abortion, after arrested and charged with disorderly
conduct for violating a Chicago ordinance posted in an open group of 140
members, six of which have been previously convicted for acts of violence
against abortion. Along with this post a link to The Nuremberg
Files, which is a ‘hit list’ providing personal information of abortion
providers. The words posted along with the link to the hit list was enough to
prove this post amounted to intimidation under Illinois law. The purpose of ‘hit
lists’ is to intimidate and influence others to act upon the threats, in other
words, this list poses a huge possibility of danger to potential victims, even
if the actions aren’t immediate. This post was sufficient evidence for a
reasonable person to deem the nature of the speech was aimed to incite violence
against Dr. Simon especially when connected to the volatile debates and
protests regarding abortion. This is a perfect example of physical and
emotional harm that constitutes hate speech online. Often the defendant wins in
many cases, however in the case of City
of Chicago v. Giles the outcome favored the plaintiff. After analyzing this
case the question that continues to puzzle me is how can Congress develop a
doctrine that protect citizens from physical/emotional harm without restricting
our right to freedom speech? Does speech that puts a citizen in potential
danger without imminent harm still amount to enough intimidation?

The complex issue of hate speech holds a long
strenuous history, consisting of those that advocate for reevaluating the
current incitement doctrine and regulating the Internet to a certain extent,
and those who believe censoring and suppressing speech on the Internet violates
our rights and is leads to corrupt governmental practice. Though it may feel simpler
to silence those who are imposing hateful speech, many scholars believe the
Internet allows the people to voice their opinions and act as a mechanism to ‘blow
off steam’ rather than relying on violence to get their point across.

Some also argue that the Internet is not
time-concerning, meaning that at any point in time a person can refute the threatening
information so the government should not be able to interfere. There are other
perspectives that think demonstrating the link between speech and actions online,
such as the act of committing violence, is too questionable to prove.

As shown above, if the U.S. Supreme Court
took it upon their mission to clarify and define hate speech in the online
atmosphere it would be easier to develop and instill federal laws and new
tests. The definition needs to be clear in explaining whether speech includes
both physical and emotional harm. Although the citizens of America have
dissenting opinions regarding this matter it’s important to focus the attention
on the cases that are currently being handled and using a test that is
unfitting is not the solution for these cases; the time has come for the Supreme
Court to establish a universal test that differentiates protected and
unprotected online hate speech.