Recently, Rabbi Cooper of the Wiesenthal Center sent a letter to about 2,000 Internet service providers, asking them to pull the plug on customers who use the services to distribute racist or antisemitic information. I sent the following letter to email@example.com. No answer.
I believe that the Center's letter to 2,000 Internet service providers (ISP's), as reported in yesterday's New York Times, represents an unfortunate choice by the Center to engage in activities harmful to free speech in this country.
I am a Jewish businessman and attorney, resident in New York City. Since January 1995, I have used my leisure time to create and operate a Web site called The Ethical Spectacle (http://www.spectacle.org) which covers the intersection (or collision) of ethics, law and politics in our society. In June 1995, I published An Auschwitz Alphabet as a special issue of the Spectacle. It is a collection of resources and essays pertaining to Auschwitz, including quotations from Primo Levi, Elie Wiesel, Hannah Arendt and Tadeusz Borowski, photographs, a portion of the Passover service, and my own essay, "What I Learned From Auschwitz." In the months since then, I have received mail from several hundred people in the US, Sweden, England, Belgium, Australia, New Zealand and Canada, thanking me for the "Alphabet", reminiscing about family members who were victims of the Holocaust, and generally proving the potency of the Internet as a force for education and freedom.
I am not in agreement with your request to ISP's to censor hate speech on their systems. Any censorship of speech ultimately boomerangs to injure good speech, and one of the tenets of what I call the "free speech rulebook" is that no-one--not the government, not Netcom, not the Wiesenthal Center--is godlike enough to decide for other people what speech may be heard. A few years ago, the Canadian Supreme Court accepted Professor Catharine MacKinnon's arguments that pornography not merely encourages, but IS, the oppression of women. I believe MacKinnon is correct in principle (as I very much believe the Wiesenthal Center is correct in principle) but look at the application: Canadian Customs now enforces the law selectively to ban gay speech and the angry feminist writings of MacKinnon colleague Andrea Dworkin, while the pornography business continues on as before.
I understand that the First Amendment only protects speech against government action. Rabbi Hier's speeches, and his testimony to the Senate on the bomb recipe bill, contain at least pro forma recognition that the First Amendment protects hate speech. But by calling on ISP's to band together to ban hate, you are asking them to constitute themselves a private government. The First Amendment no longer means anything when private action ensures that disfavored views cannot gain access to the means of communication.
I make a distinction for access providers such as Compuserve, Prodigy, and America Online. They are the electronic equivalent of bookstores, as the Cubby v. Compuserve case established, and have a right to decide what "books" to carry. But ISP's such as Netcom and Interramp provide nothing more than a wire to the Internet. The inevitable direction the law must take, if we value free speech in this country, is to treat these ISP's as common carriers. Contrary to your request that they "edit" the speech they carry, it is imperative that they have no right whatever to do so.
The development of telegraphy in this country provides a significant precedent. Western Union abused its monopoly by refusing to carry cables from reporters to their newspapers, seeing them as competition for its own wire service business. The Congress responded by declaring Western Union a common carrier, forbidding it from determining which speech can be carried over the wire.
If ISP's respond to your letter and get in the habit of shutting off hate speech, history and human nature dictates that this authority will later be used to ban speech about feminism, abortion, radical politics or whatever else is the "bete noir" of the moment. An ISP which has the right to refuse to carry the Institute for Historical Review can exercise that right just as easily to refuse the Wiesenthal Center access to the Internet.
To paraphrase Count Talleyrand, your request to ISP's was not only morally wrong, but also a mistake. Hate speech on the Internet, though vile and distressing, is fragmented and in plain sight, where it can be monitored and answered. Numerous Internet sites, like yours, the Nizkor Project and the Ethical Spectacle, exist to answer hate speech. If ISP's comply with your request, one of two things will happen. Either hate speech will go completely underground, becoming more mysterious, attractive and powerful to its audience because forbidden. Or, what is even more likely, hate groups will simply band together to create their own ISP, providing all their foul ideas from one easily accessible menu. You will then be in the position of having to fall back to a call for government censorship.
Free speech is the cornerstone of liberty. The only security lies in John Milton's stand, taken in The Aeropagitica, his essay to Parliament about the licensing of printing presses and books: "Prove all things, hold fast that which is good."