Technology × Freedom

Charlottesville, Internet Hate Speech, and the Perils of Positive Law

August 16, 2017 invisiblehand

On Saturday, violence erupted during a “Unite the Right” rally protesting the removal of a statue of Confederate General Robert E. Lee from a public park in Charlottesville, Va. The clash, involving protestors from the “alt-right” movement and counter-protestors, led to 30 people being injured and one woman, Heather Heyer, being killed after a car drove into a crowd of counter-protestors. Virginia Governor Terry McAuliffe said of Heyer:

She was doing what she loved. She was fighting for democracy, free speech, to stop hatred and bigotry.

Keep these words in mind as you consider what comes next.

The Verge reports that Neo-nazi news site the Daily Stormer was given 24 hours to move its domain to a new host after its registrar, GoDaddy, said it would cut off support. The ultimatum was given after the Daily Stormer published an article about Heather Heyer titled “Woman Killed in Road Rage Incident was a Fat, Childless 32-Year-Old Slut.” GoDaddy said the article “could incite additional violence” and thus violated the company’s terms of service. Joseph Cox, writing for Motherboard:

The events in Charlottesville, Virginia, in which 32-year-old Heather Heyer was killed, and their subsequent fallout have triggered a debate around the responsibility of tech companies hosting or providing services to extremist content.

It appears the Daily Stormer has since relaunched on the dark web via Tor. As Cox notes:

Running as a Tor hidden service means the site will be largely immune to some of the issues the Daily Stormer has faced over the past few days. It doesn't rely on a domain registrar, such as GoDaddy or Google, so those companies can't decide to stop providing services. And it is typically not possible to see what company is providing web servers to the site itself, making it unclear where to direct any complaints or takedown requests.

We’re beginning to get to the heart of the matter. Perhaps no one yet has articulated it better than Daphne Keller at the Center for Internet and Society of Stanford Law School:

Most people I talk to think that Facebook, Twitter, and other social media companies should take down ugly-but-legal user speech. Platforms are generally applauded for taking down racist posts from the White Nationalist demonstrators in Charlottesville, for example. I see plenty of disagreement about exactly what user-generated content should come down – breastfeeding images? Passages from Lolita? Passages from Mein Kampf? But few really oppose the basic predicate of these removals: that private companies can and should be arbiters of permissible speech on their platforms.

At the same time, if the people I talk to are geeky enough, they usually support Net Neutrality. They believe that ISPs, as providers of core Internet infrastructure, should not get to be arbiters of content. ISPs should allow the bits to flow equally – not suppress or favor particular messages or sources.

This week’s upheaval over the Nazi-inspired Daily Stormer news site raises questions about the spectrum between the two – between ISPs as neutral infrastructure, and platforms as content arbiters.

In the wake of Charlottesville and the Daily Stormer controversy, two conflicting values have emerged from within the same ideological camp: content neutrality on the one hand and intolerance for hate speech on the other. The conflict could be easily resolved by treating hate speech as an exception to the rule of content neutrality, i.e. all ISPs and domain registrars are to remain content-neutral unless and until that content violates hate speech laws.

But that raises a new problem. How and under whose guidance will hate speech and online censorship laws be written and enacted? In the U.S., legislation restricting free speech has not fared well against public opinion and would likely be struck down as unconstitutional in the higher courts (especially in the now majority-conservative U.S. Supreme Court). But even supposing that censorship laws could be passed and upheld, how would these laws define hate speech? Is it even possible to offer a legal framework for hate speech that seals off any possible avenue for ever-broader and more liberal interpretations? It’s not beyond the realm of possibility that hate speech, once outlawed, could expand to encompass perceived “micro-aggressions” in tone or body language, or even refusal to speak (i.e. not explicitly denouncing a given belief, group, or event). The future of the U.S. in this regard may be similar to present-day Europe, where a French comedian was arrested for so-called hate speech and German police raided the homes of 36 people accused of hateful or racist social media postings.

A principled and consistent approach to defining hate speech is impossible, since it must always be defined in relation to the recipient’s group status. Take this definition, for example:

Hate speech encompasses verbalizations, written messages, symbols, or symbolic acts that demean and degrade, and, as such, can promote discrimination, prejudice, and violence toward targeted groups. Hate speech often stems from thoughts and beliefs such as hatred, intolerance, prejudice, bigotry, or stereotyping.

As a result of its collectivist underpinnings, hate speech is only considered hate speech when directed at a legally protected class – African-Americans, homosexuals, etc. Those in a protected class can call the Charlottesville protestors and members of the alt-right neo-Nazis, fascists, and KKK members (even though 99% of them aren’t) without any fear of legal repercussion. In essence, hate speech is based on legal fiat, endlessly redefinable according to whatever legislative body or administration happens to be in power. Glenn Greenwald at The Intercept documents this inconsistency through a compilation of Twitter posts directed at the ACLU after the legal advocacy group defended the free speech rights of the Charlottesville protestors, some of which are recounted here:


@ztsamudzi: The ACLU of Virginia has blood on their hands through defending these Nazis' "right" to assemble.

@ChaoticRambler: you just confessed to being white supremacists. You don't get to defend them and claim separation. You. Are. Their. Allies.

To those on the radical, collectivist left, anyone they deem to be a white supremacist or fascist has no right to free speech, no right to peacefully assemble, and no right to due process or legal defense. Recall Governor McAuliffe’s words that Heather Heyer was fighting for “free speech” and “to stop hatred and bigotry.” In this case, she couldn’t have been fighting for both. Politically, these things are at odds. In Greenwald’s worlds:

The flaws and dangers in this anti-free speech mindset are manifest, but nonetheless always worth highlighting, especially when horrific violence causes people to want to abridge civil liberties in the name of stopping it. In sum, purporting to oppose fascism by allowing the state to ban views it opposes is like purporting to oppose human rights abuses by mandating the torture of all prisoners.

But to argue that hate speech laws are dangerous because they’re not principle-based or consistent is futile, because principled thinking and consistency are ideals valued neither by the collectivist mindset nor the positive-law tradition that springs from it.

Positivism is the school of law that places the origin and validity of human rights in legislative decree. It is the antithesis of natural law, which claims that all human rights flow unchangeably from human nature itself and are “inalienable” – meaning they cannot be added to or erased by any legislative decree. For more on this, consult the brilliant Andrew Napolitano. Napolitano makes the point that positive law, even in a self-proclaimed enlightened and democratic society, always ends in tyranny once it takes hold. Why? Because it untethers law to anything but its own temporary usefulness in meeting the goals of legislators, their beneficiaries and benefactors.

We can see this tyranny of legislative decree play out in the aftermath of events like Charlottesville. The media immediately begins to construct a narrative around the event to place it in a broader narrative context, one that is also constructed by the media. Partly to economize and partly to pique reader interest, these narratives separate individual actors into pre-defined groups along one or two political or social lines. As more details emerge in subsequent weeks and months that bespeak a more complex and nuanced reality, these details are easily overlooked or ignored in favor of the simpler, tidier original narrative. Unfortunately, legislation is rarely proposed in light of the later, more nuanced understanding of events, but is based instead on the clean-cut and ultimately misleading public narrative.

The problem in America is that we’ve combined majoritarian democracy with positivist legislation. This has created a dangerous form of collectivism that pits groups against one another in a zero-sum game of social and political power. This democratic-positivist system, far from erasing the selfish, prejudiced, and tribalist tendencies in human nature as many supposed, has instead intensified them, both on the right and the left.

Technology only exacerbates the problem. Tribalist factions form their own insular online communities that serve as echo chambers for their beliefs. Now that the Daily Stormer has been pushed to the dark web, its followers – now confirmed in their perceived victimhood – will only become more extreme and antisocial now that they’re cut off from and unaccountable to the mainstream online community. Their views will no longer be regulated and tempered by more moderate groups with which they formerly crossed paths through online forums and threads.

This is why online censorship isn’t the answer to the problem of extremist sites like the Daily Stormer, just like prohibition wasn’t the answer to alcohol abuse and the war on drugs wasn’t the answer to the drug problem. If anything, forcing ISPs or domain registrars to take down extremist content will cause them to err on the side of caution to avoid burdensome fines, thus restricting any content that could be considered controversial at all. To get at a real solution, we have to awaken ourselves to the system that is tribalizing us. We have to stop being the unwitting animals in this politically orchestrated cockfight.