By Qasim Rashid
Human rights lawyer, author
Throughout American history, technological advancements have forced multiple revisions to America’s free speech and free expression model. When a model became overly restrictive, those oppressed petitioned to regain their freedoms.[1] Likewise, when it became overly liberal, those harmed petitioned to maintain their safety.[2] Since the 1990s, the Internet has introduced a major technological advancement—the ability to remotely, yet directly, influence worldwide activities from anywhere, anonymously or otherwise.[3] This development has upset the delicate balance between the freedom of speech and freedom from harm distinguished by Supreme Court decisions.[4]
I would like to present a new model, dubbed reasonable proximate impact. This new model argues that remote, malicious, or incendiary speech and its reasonably foreseeable consequences that demonstrate a high likelihood of physical proximate harm to innocent third parties should be banned for the sake of protecting free speech and societal harmony. This is precisely how such speech is already banned for in person and physical settings. Currently, the First Amendment protects such remote speech despite the resulting material physical harm to innocent third parties. This situation creates a constitutional imbalance that we propose to remedy.
Though the Constitution affords a generous and liberal application of free speech, it does not recognize absolute freedom of speech.[5] A common illustration of this is the restriction of yelling “fire” in a crowded theater. The United States also has detailed hate speech restrictions, which is defined as,
[S]peech not protected by the First Amendment, because it is intended to foster hatred against individuals or groups based on race, religion, gender, sexual preference, place of national origin, or other improper classification.[6]
Historically, hate speech has been considered in the context of physical proximity. For example, if a Ku Klux Klan (“KKK”) member burns a cross in the privacy of his home and without the intent to intimidate, he is protected under the First Amendment.[7] However, if that cross is burned in public in front of the home of an African American, it may be classified as hate speech because it is intimidating, and therefore not under First Amendment protection.[8] In such a scenario, the cross burning itself is not the issue. Instead, it is physical proximity that determines the legality or illegality of the cross burning. And now, as the Internet has turned the world into a global village, the physical proximity requirement has become a crutch for extremists to remotely incite, intimidate, and terrorize without accountability.
For example, Terry Jones, a Florida pastor who burned the Qur’an on March 20, 2011, provides a prime example of the technological gap that has caused a much-needed revision to America’s current free speech model. In addition to placing a sign on the lawn of the church he attended, stating, “Islam is of the Devil,” Jones burned the Qur’an and streamed it live on the Internet. The stream included Arabic subtitles to ensure Muslims could see exactly what was happening. Like a cross-burning KKK member who might burn a cross in front of his African-American neighbor to specifically target him, Qur’an-burning Jones specifically targeted Muslims. Government officials and military experts warned Jones beforehand that a high likelihood of violence would erupt in response to his actions.[9] Jones acknowledged that he was aware of such consequences and burned the Qur’an anyway. In the subsequent rioting that took place in Afghanistan, 16 innocent third party members were killed (including seven UN workers), and 90 civilians were injured.
In the Terry Jones case, government experts and military personnel informed him that his actions would result in violent proximate damage, as America was at war with Afghanistan. Jones proceeded anyway, choosing to burn the Qur’an and knowingly become the catalyst for the death of dozens elsewhere. Jones’ behavior should not be protected more than the actions of a KKK member who illegally burns a cross in front of the home of an African American. Indeed, both actions demonstrate the same potential to cause intimidation and violence. Neither should be protected under the First Amendment. However, violence and deaths notwithstanding, the KKK member, not Terry Jones, would be guilty of wrongdoing under the current model—even if the KKK member’s actions did not lead to violence. The lack of physical proximity from Jones’ deliberate behavior to the subsequent harm done protects his behavior under the current model. Hence, the dangerous gap created by technology that we must address.
To close this technology gap, physical proximity can no longer be the deciding factor to our free speech model. The United States should pursue a revised free speech model which includes reasonably foreseeable proximate harm as an element of negligence. This new standard—i.e. the reasonable proximate impact model—would necessarily be determined on a case-by-case basis. The burden would be on the plaintiff to demonstrate that the offender could reasonably foresee that their actions would have a violent proximate impact on another party, even if that impact was not physically proximate.
And to be sure, the reasonable proximate impact revision to the United States’ current free speech model is starkly different from anti-blasphemy laws. Anti-blasphemy legislation criminalizes the statement, whether intentional or not and whether violent or not, as determined by a subjective religious standard. The reasonable proximate impact model instead criminalizes those intentional statements that result in foreseeable proximate harm to third parties; the harm is practical, reasonably foreseeable, and measurable. The harm is not merely emotional and subjective, but is determined based on a case-by-case, secular, and reasonable person standard. The burden remains on the plaintiff to prove this standard has been met.
This logical approach to free speech further enhances our legislative application of the First Amendment. Indeed, after the case of Virginia v. Black, judicial decisions demonstrate that it is constitutional to uphold an objective standard, wherein the defendant can be held accountable for how the victim reasonably perceives a true threat.[10] Likewise, forty-eight states have enacted cyber-bullying legislation and twenty-six states have proposed corporate bullying legislation. Historical wartime restrictions advocate for this free speech modification. Numerous nations we consider democratic allies have employed even stricter free speech regulations. These nations are widely recognized as peaceful, progressive, democratic, and free nations—beyond that of the United States in every case presented.
In summary, free speech legislation has historically responded to advancements in technology. In the twenty-first century, the advancement of the Internet demands we revisit America’s free speech model once again. The reasonable proximate impact model does this by removing the current model’s physical proximity requirement. In our interconnected world of advanced technology, the excuse of physical distance cannot and must not protect speech that our laws would otherwise consider illegal due to its violent and incendiary nature. Accountability for violence cannot disappear just because the harmed victim is across a continent, instead of across the street.
[1] Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Vill. of Stratton, 536 U.S. 150, 165– 66 (2002) (holding that the government may not require evangelists to obtain a permit before preaching door to door because such a requirement violates the First Amendment).
[2] Janice Wolak, David Finkelhor & Kimberly Mitchell, 1 in 7 Youth: The Statistics About Online Sexual Solicitations, CRIMES AGAINST CHILD. RES. CENTER (Dec. 2007), http://www.unh.edu/ccrc/internet-crimes/factsheet_1in7.html. For example, according to the Crimes Against Children Research Center, online predators threaten one in seven youth and one in twenty-five receive aggressive sexual solicitations, including attempts to meet them in person. Id. In other words, at least one child in every classroom in America has been aggressively solicited online for sex. This has led to the passing of severe legal restrictions of Internet use to solicit minors for sex. Id.
[3]See Reno v. Am. Civil Liberties Union, 521 U.S. 844, 850 (1997) (explaining that “[t]he Internet is a ‘unique and wholly new medium of worldwide human communication.’”) (quoting Am. Civil Liberties Union v. Reno, 929 F. Supp. 824, 844 (E.D. Pa. 1996).
[4] See generally Ira Glasser, The Struggle for a New Paradigm: Protecting Free Speech and Privacy in the Virtual World of Cyberspace, 23 NOVA L. REV. 627 (1999) (examining the constitutional implications of technology’s impact on free speech).
[5] See, e.g., Schenck v. United States, 249 U.S. 47, 52 (1919) (exemplifying that pornography, child pornography, hate speech, and speech or expression inciting violence were forbidden under the “clear and present danger” theory).
[6] Hate Speech, LAW.YOURDICTIONARY.COM, http://law.yourdictionary.com/hate-speech (last visited Aug. 6, 2017).
[7] Virginia v. Black, 538 U.S. 343, 347–48 (2003).
[8] Id. (stating that “The First Amendment permits Virginia to outlaw cross burnings done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation. Instead of prohibiting all intimidating messages, Virginia may choose to regulate this subset of intimidating messages in light of cross burning’s long and pernicious history as a signal of impending violence. Thus, just as a State may regulate only that obscenity which is the most obscene due to its prurient content, so too may a State choose to prohibit only those forms of intimidation that are most likely to inspire fear of bodily harm. A ban on cross burning carried out with intent to intimidate is fully consistent with our holding in R.A.V. and is proscribable under the First Amendment.”).
[9] Kevin Sieff, Florida Pastor Terry Jones’ Koran Burning Has Far-Reaching Effect, WASH. POST. (Apr. 2, 2011), https://www.washingtonpost.com/local/education/florida- pastor-terry-joness-koran-burning-has-far-reaching- effect/2011/04/02/AFpiFoQC_story.html?utm_term=.93f53ab36fed.
[10] 663 F.3d 322 (8th Cir. 2011). at 330 (quoting Doe v. Pulaski Cnty. Special Sch. Dist., 306 F.3d 616, 624 (8th Cir. 2002) (en banc)); see United States v. Spruill, 118 F.3d 221, 228 (4th Cir. 1997) (defining the “true threat” contemplated by 18 U.S.C. § 844(e) as a “‘serious threat as distinguished from words as mere political argument, idle talk or jest.’” (quoting United States v. Leaverton, 835 F.2d 254, 256 (10th Cir. 1987)).
Biography
Qasim Rashid is a human rights lawyer and author. He received his BSc from the University of Illinois and his juris doctorate from the University of Richmond School of Law. He’s a former Harvard University Fellow and sits on the Executive Board of numerous nonprofits working to advance human rights. He’s available at q.rashid@richmond.edu and @QasimRashid across social media platforms. Portions of this article have been derived from scholarship published by Qasim Rashid in the Stetson Law Review.