Free Speech Issues Raised by Internet Companies Denying Service to Neo-Nazi Sites

Updated:
Posted in: Constitutional Law

Last week, GoDaddy canceled the website registration for the neo-Nazi website The Daily Stormer following an extremely misogynistic post on the site mocking Heather Heyer, the young woman who was murdered in Charlottesville by a neo-Nazi who (it certainly appears) deliberately drove his car into her and numerous other counter-demonstrators. The Daily Stormer re-registered with Google, but it also quickly withdrew the registration. Both GoDaddy and Google cited violations of their contractual Terms of Service (ToS). The Daily Stormer moved briefly to a Russian host, but was soon banned there as well. Then, after migrating to the so-called dark web, The Daily Stormer reportedly re-emerged via a startup company on Friday, but as this column goes to press, typing “dailystormer.com” into a browser does not take one to the site, because a website needs more than name registration to be widely accessible. Whether The Daily Stormer will be generally accessible when you read this column is uncertain.

Meanwhile, asserting that he has been kicked off of four hosting services already, Daily Stormer publisher Andrew Anglin complained that with no major service willing to register his domain, his publication has been effectively banned from the internet. Since then, additional companies have also taken steps to deny various other kinds of services to white supremacist organizations.

No decent person should shed a tear for Anglin, The Daily Stormer, or any of their ilk. Their despicable message and the violence they inspire have no place in a decent society. That said, unworthy causes—indeed, even despicable ones—sometimes pose important tests of basic principles. Here I shall focus initially on the legal rights, if any, of white supremacist and neo-Nazi organizations and speakers to use privately owned internet registration services. I consider their possible rights as a means of raising questions about the rules that apply to other, more worthy, customers.

Terms of Service and State Action

There is a simple and clear answer to the question whether the legal rights of Anglin or The Daily Stormer were violated by GoDaddy, Google, or the other private companies that have refused to continue doing business with or for it. They were not.

Under the GoDaddy ToS, GoDaddy had the power to terminate a domain registration based on the user’s “morally objectionable activities,” including “[a]ctivities designed to encourage unlawful behavior by others, such as hate crimes.” Perhaps Anglin believes that The Daily Stormer engaged in hate speech but did not encourage hate crimes, but even if that were true, it would not help his cause, because the ToS assign the determination of what constitutes encouraging hate crimes to “GoDaddy in its sole discretion.”

Google’s ToS document is similar. It does not directly bar hate speech, but it reserves to Google the right to terminate domain registrations for violations of Google policies. A separate document specifies that all Google services are offered as “platforms for free expression,” but hate speech, defined by Google as content with the “primary purpose” of attacking “a protected group . . . crosses the line” of what it will allow.

Thus, GoDaddy, Google, and presumably other internet companies from which The Daily Stormer and other white supremacist and neo-Nazi groups were terminated acted within their contractual rights. To be sure, on rare occasions courts invalidate extremely one-sided contract terms as “unconscionable” or void “against public policy,” but there is little chance that The Daily Stormer could prevail on such a claim.

What about the First Amendment? It has no purchase here because (with the exception of the Thirteenth Amendment’s prohibition on slavery), the rights set forth in the Constitution apply only against government actors, not private companies like GoDaddy and Google. A First Amendment lawsuit by The Daily Stormer would be immediately dismissed for lack of what the relevant precedents term “state action.”

Private Threats to Freedom of Expression

Although existing law thus makes clear that The Daily Stormer and similar organizations have no legal right to register a domain via a private company, there may be reasons for changing the law.

Suppose that a group of Chinese dissidents wants to register a domain name for a site critical of the Chinese government. Companies eager to do business in China might be reluctant to provide the service. Or suppose that an environmental organization wants to register a domain name for a site that is highly critical of major corporations that purchase other services from the firms that offer domain registration. Or—now that the public has become aware that companies like Google and GoDaddy can strip organizations of their domain name registrations—suppose that boycott campaigns against such companies arise. Pro-lifers might boycott one service provider because it counts a pro-choice organization among its customers or vice-versa.

Internet companies should not generally be in the position of choosing which organizations, individuals, and firms are too hot to handle, nor should they want to be. Furthermore, there is no good reason private companies, rather than the government, provide domain name registration.

To register a trademark, a motor vehicle, or the deed of purchase for real property, people must utilize government services that are undoubtedly subject to the limits of the Constitution. That point was made clear by the Supreme Court just two months ago when, in the case of Matal v. Tam, it unanimously ruled that a federal statute denying registration to offensive trademarks violated the First Amendment.

It is a mere accident of history that to register an internet domain name, an organization or individual must use the services of a private company not subject to the First Amendment rather than a government agency that is subject to the First Amendment. There does not appear to be any reason in principle to treat trademarks and other legal rights currently obtained directly from the government differently from domain name registrations.

Indeed, in some other countries, Google and GoDaddy would be treated essentially the same as the government, so far as free speech rights of persons and organizations registering domain names are concerned. For example, the Bill of Rights of the South African Constitution has horizontal application—meaning that it limits private as well as government actors, “to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right.” Given the size of the companies and the nature of the services—as noted above, comparable to other kinds of registrations that the government provides directly—horizontal application would be appropriate for a case like this.

Congress Should Act

The U.S. Constitution does not have horizontal application, but Congress sometimes enacts statutes that impose on private actors the duty to respect rights comparable to the rights that the Constitution provides against the government. Civil rights statutes are the most notable example. Thus, there is no constitutional right of customers to be able to purchase goods and services from a merchant free of race discrimination, but a merchant who discriminates on that basis violates the customer’s statutory rights under Title II of the Civil Rights Act of 1964.

Congress could likewise impose obligations to respect freedom of speech on companies that register internet domain names and provide other essential internet services.

To be sure, congressional power in this area is not unlimited. If a company publishes its own material on its site, then it has a constitutional right as a speaker to exercise editorial judgment. That’s what the Supreme Court ruled in a 1974 case involving a print newspaper, and the same principle applies online.

However, when a company merely registers a domain or rents space on its servers, it is neither speaking nor exercising editorial judgment. In these circumstances, the company is more like a purveyor of ink or paper—materials that can be used for speech but are not themselves speech. Thus, Congress could, without violating the First Amendment rights of internet companies, impose what the law calls “common carrier” obligations.

But Congress Can Draw a Different Line

Most constitutional democracies treat hate speech as outside the protection of freedom of expression. For example, the South African Bill of Rights (the same one that has horizontal application) places “advocacy of hatred that is based on race, ethnicity, gender or religion” beyond protection. The Canadian Charter of Rights and Freedoms does not specifically allow for restriction of hate speech, but it includes a general principle allowing “such reasonable limits [on all rights] prescribed by law as can be demonstrably justified in a free and democratic society,” which has been construed to allow hate speech restrictions. The U.S. Supreme Court cases holding that hate speech is not an exception to the First Amendment make the United States an outlier.

Readers who think the Supreme Court has gotten it right when it comes to hate speech will likely also think that if Congress were to enact a law making internet companies common carriers, it should not include any exception for hate speech. Under such an approach, if organizations like The Daily Stormer cannot be shut down by the government, then neither should private companies be permitted to deny them internet services.

However, others might disagree with the Supreme Court. If so, they might think that internet companies should not be allowed to censor in general but that hate speech should be an exception. This approach is probably available to Congress, which need not draw the exact same lines in its statutes that the Supreme Court has drawn in construing the Constitution.

By way of comparison, the Supreme Court has held that government discrimination on the basis of age or disability does not typically offend the Constitution’s equal protection principle. However, Congress was entitled to—and did—reach a different conclusion when it enacted the Age Discrimination in Employment Act and the Americans With Disabilities Act. In so doing, Congress was not attempting to overrule the Supreme Court on a matter of constitutional interpretation; rather, it was reaching its own policy judgment regarding what rights to protect in an area (the regulation of interstate commerce) within its zone of policy discretion.

Congress could probably do the same with respect to internet companies. It could enact a statute that generally requires internet companies to act as common carriers but allows a narrow exception for well-defined categories of hate speech. Although the government itself cannot forbid hate speech as such, the precedents do not speak directly to laws that preserve private parties’ ability to disassociate from hate speech. Such a statute would address the risk of private censorship I identified above. Chinese dissidents, environmentalists, and others staking out highly controversial positions would be ensured of a platform on the internet, whereas neo-Nazis would not be.

In some circumstances, the law protects despicable actors as the price of protecting everyone else. Here, however, we may not need to take the bitter with the sweet. The Daily Stormer’s case alerts us to the risk of censorship of others. Congress can likely address that risk without sheltering the hate speech of The Daily Stormer itself.

  • Rass

    Free speech violation isn’t an issue here. The government isn’t denying these inbred, small-minded losers a right to speak.

    • Joe Paulson

      Dorf says there is no First Amendment issue here though “free speech” is more than that. If a private ran high school didn’t have Mark Twain in their library, people would still be concerned.

      Other countries, however, do treat the Internet differently given their power in providing content. If major internet providers didn’t allow pro-gay websites, it would be a major effect.

      Congress also can regulate the Internet ala “net neutrality” to require in general equal access. Thus, a phone company cannot block coverage to an abortion clinic. When Congress so regulates, the First Amendment would factor in, since government is involved.

  • ingeborg oppenheimer

    speaking of talmudic reasoning, this article reaches the stratosphere! a great article for legal professionals and others interested in how we can prevent another full fledged nazi era while protecting basic principles cherished in a democracy. but the bottom line for this non-legal-professional is that the kind of isis-neonazi world our democratic society has to deal with these days, we have to consider whether to give priority to basic principles or survival – the survival of humans and the free society we all cherish. thanks, mr. dorf – you’ve given us much to think about!

  • Ernie Hinrichsen

    I respectfully disagree with Mr. Dorf. While I certainly agree the situation is bad under private control on internet speech, do we really want to have, for example, the current Congress or any political body being in charge of speech? Much of which is political in nature. I despise the KKK, American Nazi Party, anti-semites and white nationalists and left to my own, imperfect, impulses would censor them all. The reason we have laws is that they are bigger and less passionate than me or any other individual citizen. However, Mr. Dorf ,early in his analysis, rightly points out that the ToS of these companies mostly takes care of the problem without outright violation of rights. Since these companies are for profit and moved by market forces we are much more likely to have fairer outcomes with the potential abuses he postulates when the users of that service cease to be users in droves because that service has censored unfairly and is relying on their ToS’ to do so. Constitutional freedom of speech was intended to be absolute for a reason. Unfortunately, in order to have Tawakkol Karman we also get Nazis. As much as i’d like to agree with Mr. Dorf the only end-run that allows this type of censorship seems to be the status quo or classifying the net as a Common Carrier, which sounds right on its face but could have many serious unintended (or intended) consequences.
    One approach, Congress, leaves this question to a relative handful of self-interested actors and the other, Market Forces, to a much larger set of self-interested actors. In my opinion things tend to smooth out better the larger the group.