Volume 4 No 1 - Journal for the Study of Antisemitism

66 JOURNAL FOR THE STUDY OF ANTISEMITISM [ VOL. 4:27
Amendment challenges posed by the twenty-first century are not really new
[or, presumably, more dangerous].” 57 These views ignore the fact that the
“clear and present danger” doctrine and jurisprudence were not developed
in a global theater, and that speakers falsely shouting fire in the global theater
is a quite different phenomenon from the national or domestic one.
Unbound by time or space, the Internet can easily provide the cover of
anonymity or pseudo anonymity, while the fact that servers subject to prosecution
can simply be moved to the United States means that the United
States enacts the First Amendment in full absolutist measure for all the
world. When Canada throttled his Web site for imperiling a vulnerable
“Identifiable Group,” the antisemite Ernst Zûndel relocated to the United
States and resumed his nefarious activity with impunity until he violated
immigration law. 58 Moreover, the belief that under present conditions the
Internet threatens no new or strengthened dangers represents a fundamental
misreading of the workings of the marketplace of ideas. The free play of
competition there does not assure that hate speech will eventually fail and
fall by the wayside, and that truth and goodness will always ultimately triumph.
Too often, of course, it is quite the opposite, because “hate speech
can produce a process defect in the marketplace of ideas.” Evil ideas and
programs are able to prevail and inflict harm when they resonate with historically
based hatreds and images that can awaken latent racial and/or
religious prejudices and myths. Antisemitism is an obvious example, and
we have learned that in certain circumstances even fairy tales can kill. 59
That understanding has led Germany, along with Austria, Belgium, Canada,
the Czech Republic (which expelled David Duke in 2009), France, Israel,
Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Mexico, Poland, Portugal,
Romania, the Slovak Republic, Spain, Sweden, and Switzerland—
but, of course, not the United States—to make antisemitism and/or Holocaust
denial, online and in other media, punishable according to different
definitions of hate crimes under criminal law.
The secretary-general of the UN observed in 2000 that the use of the
Internet to spread hate speech is one of the most important challenges to
57. Lynn Adelman and Jon Deitrich, “Extremist Speech and the Internet: The
Continuing Importance of Brandenburg,” Harvard Law and Policy Review, 4
(Summer 2010): 73.
58. Marvin Perry and Frederick M. Schweitzer, Antisemitism: Myth and Hate
from the Middle Ages to the Present (New York: Palgrave Macmillan, 2002), 269-
77.
59. Danielle Keats Citron and Helen Norton, “Intermediaries and Hate Speech:
Fostering Digital Citizenship for Our Information Age,” Boston University Law
Review, 91 (July 2011): 1451.