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For most people the internet has been a dream come true, allowing instantaneous access to a vast array of information, opinion, and entertainment and facilitating communication with friends and family throughout the world. For others, however, the internet has wrought a nightmare, allowing often anonymous enemies a platform for vicious attacks on the character of their victims and a means for revealing to the world embarrassing private information about them. To combat these attacks, victims and law enforcement officials in the United States have employed both analogue remedies such as harassment and stalking laws as well as cyber-specific provisions. Since the attacks involve speech, however, all these remedies must comport with the First Amendment. The typical response of courts and commentators to the First Amendment issues raised in these cases is to ask whether the perpetrator’s speech falls within one of the limited and narrow traditional exceptions to First Amendment coverage, such as true threats, defamation, obscenity, or fighting words. This approach is understandable in light of unfortunate dicta in several United States Supreme Court decisions—that all content-based restrictions of speech other than speech falling within one of these exceptions are subject to “strict scrutiny,” a rigorous test that few speech restrictions can pass. This chapter argues that this approach to dealing with cyber harassment is misguided. This methodology often results in shoehorning the speech at issue into exceptions into which the speech does not fit, or worse yet, in a finding that the speech is protected by the First Amendment simply because it does not fall within a recognized exception.

A decade ago, online abuse was routinely dismissed as “no big deal.” Activities ordinarily viewed as violations of the law if perpetrated in physical space acquired special protection because they occurred in “cyberspace.” Why? The “internet” deserved special protection, commentators contended, because it was a unique zone of public discourse. No matter that individuals (more often women and minorities) were being terrorized and silenced with rape threats, defamation, and invasions of sexual privacy. The abuse had to be tolerated, lest we endanger speech online. Much has changed in the past ten years. Social attitudes have evolved to recognize the expressive interests of victims as well as those of the perpetrators. Cyber harassment is now widely understood as profoundly damaging to the free speech and privacy rights of people targeted. Law and corporate practices have been developed or enforced to protect those expressive interests. As this chapter explores, this development is for the good of free expression in the digital age.

This chapter explores the particular challenges that globalization poses to the combating of online hatred. It discusses the ways in which the regulation of online hate crime and hate speech differs from the regulation of ‘offline’ hate, and reflects on the specific problems that globalization brings to this area. It evaluates current international responses to online hatred, and puts forward suggestions for improvement. It will argue that the issues surrounding freedom of speech, and the harm caused by cyberhate, need to be reconsidered in light of the way in which online hatred is committed. It suggests that a united global response is the most effective way to make progress, but also acknowledges that differing cultural and legal norms make this a slow and difficult process.