The cyberspace has developed from a simple academic and research network to a complex communication network used to perpetrate many activities on a day to day basis. According to Spinello (2011), cyberspace have turned the world into a global village; but at the same time, it has hacked into lots of borders, sovereignty, and the sanctity of cultures, all for good and bad. Every single day, information technology issues and stories make headlines, some for good reasons while others for bad. For purposes of this paper, I will analyze a recent issue, which involved free speech in the cyberspace. While everyone has a right to express his/her opinions in public, this right is often abused especially when opinions are perceived as threat or harassment to others as will be seen in the case below. Free speech can be detrimental hence all its legal, ethical, and moral aspects have to be taken into account to ensure that it is not abused. In an attempt to bring out these aspects of free speech, this paper uses IRAC method of case analysis to analyse the issue outlined below.
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The case: The U.C.L.A. video
Alexandra Wallace, a student at the University of California, Los Angeles, recently produced a three-minute video to express her opinion on Asian students making calls through their cell phones in the library after the panic that arose following the March, 2011 tsunami attack in Japan. According to a story published in USA Today on March 22nd, 2011, Ms. Wallace’s video, which was watched by millions of internet users on YouTube, was heavily criticized by the University officials and most students for her racist words that many view as a clear indication of hate speech. In her video, Wallace imitated Asian students’ conversations using the following statement: “Ohhhhh, ching chong ling long ting tong, ohhhhh” (USA Today, 2011). She even tells Asian students that their library manners are wanting and reminds them that in America students do not use cell phones in the library (USA Today, 2011). Wallace also uses offensive terms like “hordes” often associated with immigrant movement to describe Asians. After heavy criticism, Wallace apologized for her “inappropriate” video through UCLA student newspaper in a statement, “I cannot explain what possessed me to approach the subject as I did, and if I could undo it, I would,” (USA Today, par. 5). She stated that her intention was only to produce a humorous video on the subject and not to harass Asian students as it was perceived by many. Even though UCLA officials criticized Ms. Wallace’s actions, they remained adamant on punishing her stating that she did not violate the student’s code of conduct. Ms. Wallace, however, expressed her willingness to pay for her actions in a letter to the student newspaper in which she stated that she would withdraw from the University as her actions had earned her death threats and her family harassed (USA Today, 2011).
Hate speech is an issue that the institutions of learning often face. With the expansion of cyberspace through social networks, students express their opinions in way that sometimes harass or even assault the minority groups. Even where institutions have clear codes on hate speech, the First Amendment override these codes and most of them are struck down in courts of law. This, therefore, creates a difficult situation when it comes to punishing students who use hate speech to victimize others.
IRAC analysis of the case
Facts from the case
Ms. Wallace, a student at ULCA, produced a video in the Internet to express her opinion on Asian students using their cell phones in the library due to the panic brought by the March, 2011 Japan tsunami attack. Her video was termed inappropriate both by students and UCLA officials stating that her approach of the subject was an assault to Asian students. Her actions are clear expression of harassment and hate to Asian community as a whole. Despite the heavy criticism, which also forced Ms. Wallace to apologize for her actions, she was not punished by the university administration. UCLA officials stated that Ms. Wallace did not violate students code of conduct hence her actions warranted no punishment.
Suppose Asian students at ULCA decide to take legal action against Wallace, then there would be two important questions to present to the court. The first question is: is Ms. Wallace’s video constitutionally right? The second question is: does Ms. Wallace’s offensive words amount to harassment against the Asian minority group of students? While everyone would conclude that Ms. Wallace’s words sounded like an ethnic insult, some free speech analysts would consider her approach as a “a vast range of other speech” (New York Times, 2011). While everyone has a right to free speech, there has to be ethical codes of conduct to regulate this precious gift or else it would be a gift of fire just as Baase (2003) describes it in her book, Gift of Fire. Was Wallace’s action’s ethically and morally justified? Are her actions punishable by law? These are questions, which require an analysis of applicable regulatory framework including laws and codes of conduct to come up with appropriate settlement for the case.
Before discussing applicable legislation for this case, let me shade more light on the concept of free speech in the cyberspace. Merriam-Webster’s Dictionary of Law defines free speech as the freedom of expression of one’s opinion in public without censorship or restraint (free speech, n.d). Cyberspace, on the other hand, represents a network of electronic media through which users around the world not only get access to whatever information they want, but also find a forum to express their opinion on certain issues with a surety that their opinion will be communicated to the whole world. It is through cyberspace that freedom of speech has become more practical as it is just by a click of the mouse and your opinion is in the public realm. While freedom of speech in the cyberspace has been abused constantly by many, it has proved difficult to regulate free speech given the complex nature of cyberspace. However, most governments, the United States included, have come up with laws governing content control to ensure that inappropriate information does not get to the public realm. Through such laws, governments have been able to censor materials deemed inappropriate in the internet including information considered hate speech (Spinello, 2011). Such censorships have been subjects of debate with proponents arguing that it protects freedom of speech more than it hurts, but opponents argue that censorship only violates their free speech rights (Stuart, 2007). Nevertheless, censorships only work towards ensuring content control and not regulating free speech per se.
In the U.S., free speech is protected under the First Amendment of the United States Constitution. The First Amendment protects the rights of American citizens to communicate their opinions even if their opinions offend others. In this regard, the First Amendment states that “Congress shall make no law…abridging the freedom of speech or of the press…” (U.S. Const., amend. I.). The First Amendment draws its rationale from the “marketplace of ideas” model. Based on this model, good and bad ideas compete and truth always prevail (ADL, 2000). Hence, harmful speech is tolerated in the U.S. with the solid belief that it will pass through ultimate test and be rejected if proved offensive. Protection of free speech rights is extended to government-run institutions such as public schools, colleges and universities through the Fourteenth Amendment. However, the speech must take place in a public forum for it to be protected under the First Amendment. Even though the First Amendment became a statute even before the internet was conceived in the U.S, the Supreme Court has made it clear that it also governs speech in the cyberspace (ADL, 2000). The court has made a ruling in many cases stating that First Amendment protections govern hate speech in the internet even when such speech is considered odious and ethically wrong (ADL, 2000). However, hate speech that contains credible evidence of threat against an individual, group, organization, or institution are not protected by the First Amendment (ADL, 2000). Threat in this regard is defined as the “intention to inflict punishment, loss, or pain on another or to injure another by the commission of some unlawful act” (Black’s Law Dictionary (1983) as cited in ADL, 2000, p. 4). Besides, hate speech is only considered a threat if the recipient of the message interprets it as an expression of serious intentions of assault or harm (ADL, 2000). In United States v. Kingman Quon (1999), Kingman Quon was found guilty of conveying message of threat through email message (as cited in Qazi, 1996). While Kingman Quon’s message was sent only once, it had clear indication of threat directed towards Latinos. In this regard, hate speech such as those that contain racial labels or those intended to incite people against one another are not protected under the First Amendment.
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Apart from threat, speech that amounts to serious harassment is not protected by the First Amendment. Harassing speech in this case is considered speech that is persistent and harmful and must also lead to significant physical or emotional harm to identified individual or groups of people (ADL, 2000). In this regard, the 1942 Chaplinsky v. Hampshire, the Supreme Court held that, “fighting words… which by their very utterance inflict injury or tend to incite an immediate breach of the peace” are not protected under the First Amendment and thus warrant punishment in a court of law (Qazi, 1996, par. 13). Going by this provision, blanket statements expressing hatred towards an ethnic group or group of individuals in general does not amount to harassment even if the speech inflicts emotional harm to the victims unless the statement is repeated severally and disturbs the existing peace in return. In United States v. Machado (1996), the court ruled that repeated expression of hate opinion amounts to hate speech (Qazi, 1996). Machado was thus found guilty of sending hateful E-mail messages to Asian students.
Other than the First Amendment and Case Laws highlighted above, crimes committed under free speech can be litigated using torts law. Under torts law, free speech is considered wrong if it leads to injury to other individuals whether committed intentionally or accidentally (Owen, 1997). An expression of a person’s opinion on a subject may cause emotional harm to others even if the person did not intend to harm them. The doctrine of torts law demands that individuals take responsibility for their actions.
Having presented the legal aspect of free speech in the cyberspace let me turn the discussion to ethical aspect of the same. Ethics as a concept simply defines what is right and wrong with reference to a situation at hand (Gorman, 2004). It may look so simple from its definition, but application of ethics is always difficult and often results into dilemmas given the complexity of its practical nature (Gorman, 2004). Considering the cyberspace, ethical issues surrounding free speech are centred around three points of view namely: natural rights; deontological; and consequentialist (Baase, 2003). From a natural rights point of view, people’s actions are ethically right only if they respect the fundamental freedoms and liberties of others (Baase, 2003). Natural rights point of view is more concerned with interactions between people and seeks to ensure that these interactions do not violate the rights and liberties of others including their properties. Following this perspective, free speech is ethically right unless it hurts other people in the process.
Unlike natural rights point of view, consequentialists are more concerned about the outcome of people’s interactions rather than the interaction per se. From this point of view, people’s actions are ethically right if they satisfy other people’s needs, respect other people’s values and increase their happiness as a whole (Baase, 2003). From this point of view, free speech would be ethically right if it amounts to happiness. Similarly, a censorship is ethically right if it amounts to general happiness, even if it violates the principles of free speech.
The deontological point of view, however, takes a totally different approach. According to Baase (2003), deontologists “emphasize duty and absolute rules, to be followed whether they lead to good or ill consequences” (p. 405). Deontological point of view focuses on strict following of universal laws. Ethical code of conduct is defined by rationality. In this regard, whatever is rational is ethically right and that which is irrational is ethically wrong.
When these points of view are fused together, then a conclusion can be drawn that free speech is ethically right only if: it does not violate the fundamental rights and liberties of others; follows universally applicable rules; and amounts to happiness of all.
Free speech is well protected under the First Amendment of the Constitution of the United States. From the explanations provided above, it is clear that Ms. Wallace’s actions are protected under this statute. The First Amendment grants her protection even if her opinion is considered a clear expression of hate towards Asian students. Therefore, her video is constitutionally right under the First Amendment. Besides, the First Amendment is clear on what constitutes harassing speech. Ms. Wallace speech cannot be considered harassing speech even if her message had clear indication of harassment. According to the First Amendment, a harassing speech has to contain clear expression of hate directed towards an individual or group of individuals and has to be repeated continually. While Ms. Wallace’s speech was directed towards identified individuals, she had not previously expressed any opinion to suggest her hatred towards Asian students apart from her video. A single expression of one’s opinion is not harassment hence Ms. Wallace actions are constitutionally right. However when Chaplinsky v. Hampshire (1942) is applied, Ms. Wallace’s actions are considered criminal. In this case law, the Supreme Court held that, “fighting words… which by their very utterance inflict injury or tend to incite an immediate breach of the peace” is criminal and punishable by law (Qazi, 1996, par. 13). Through her three-minute video, Ms. Wallace inflicted emotional harm to Asian students. Her utterances qualify to be fighting words. But does a case law overrule the constitution. This presents a complex situation in a court of law.
Under torts law, Ms. Wallace is guilty of inflicting emotional harm to Asian students through her video. Ms. Wallace actions were intentional and clearly show how much she hates Asians. She harassed Asian students through her utterances, an action which led to emotional harm to Asians as whole.
Ethically, Ms. Wallace video is in appropriate. From the explanation of what constitutes ethics in cyberspace, free speech is ethically right only if: it does not violate the fundamental rights and liberties of others; follows universally applicable rules; and amounts to happiness of all. Did Ms. Wallace violate the fundamental rights of Asian students through her speech? One would argue that Asian students have a right to speech and so using their cell phones in the library is protected by freedom of speech. Constitutionally, a library is considered a private place hence the First Amendment does not protect speech in such a forum. Hence, Asian students had no right using their cell phones in the library even if there was a panic. Nevertheless, Ms. Wallace’s video did not follow rational thinking and amounted to unhappiness among Asian students hence ethically wrong. Using free speech as a forum for harassing others is morally unjustified. Therefore, Ms. Wallace’s video is morally and ethically inappropriate.
After this comprehensive analysis, it is clear that the regulatory framework for free speech in the cyberspace is still wanting. While, content control is well regulated by many laws, free speech is only regulated by the First Amendment, a statute that protects the perpetrators more than the victims. From the First Amendment’s perspective, Ms. Wallace’s actions are constitutional and any judge using this statute would find Ms. Wallace not guilty of the offence. However, if I were the judge in this case, I would apply torts law as well to find the best settlement for this case. Under torts law, Ms. Wallace is guilty of conveying a message of hate and harassment to Asian students in ULCA. Her action was intentional and she intentionally used offensive statements to express her opinion. My ruling would also be backed by Chaplinsky v. Hampshire (1942) case law under which Ms. Wallace’s statements qualify to be fighting words hence punishable by law. In this regard, my conclusion of the case would be that Ms. Wallace is guilty of abusing free speech to convey a message of harassment and hate.
ADL (2000). Combating extremism in cyberspace: The legal issues affecting internet hate speech. Anti-Defamation League. Web.
Baase, S. (2003). Gift of fire: Social, legal, and ethical issues for computing and the internet (2nd ed.). Upper Saddle River: Pearson Education.
free speech. (n.d.). Merriam-Webster’s Dictionary of Law. 2011. Web.
Gorman, G.E. (2004). “Cyberethics: morality and law in Cyberspace (2nd ed.)”, Online Information Review, Vol. 28 Iss: 2, pp.165 – 166.
New York Times (2011). “The U. C. L. A. Video. New York Times.” Web.
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Owen, D. G. (1997). Philosophical foundations of tort law. Oxford: Oxford University Press.
Qazi, U. (1996). “The internet censorship controversy.” Web.
Spinello, R. (2011). Cyberethics: Morality and law in cyberspace (4th ed.). Sudbury, MA: Jones and Bartlett Publishers, Inc.
Stuart, H. (2007). “The censorship debate and the human rights issue. Our Internet Society Protecting Our Privacy “Issues” series”, Library Review, Vol. 56 Iss: 5, pp.423 – 425.
USA Today (2011). “YouTube video mocking Asians students in UCLA campus.” USA Today. Web.