There must be a way to block hate speech

Given that the shooter was radicalized on Internet forums — notably 4chan —where previous white supremacist terrorists were hailed as “saints” to be emulated, The New York Legislature passed a law requiring internet platforms to maintain hate speech moderation policies. A federal judge issued an injunction barring the state from enforcing the law, ruling it violated the First Amendment.

More targeted measures might be constitutional, while still preventing real attacks. Perhaps hate speech is too broad and vague a topic for the government to safely address. But most people would probably agree that people should not be able to explicitly encourage others to commit mass murder.

Glorification of terrorism is illegal in other major democracieslike the United Kingdom and FranceAfter a mass shooting, New Zealand banned possession of the shooter’s manifesto. Most democracies take it for granted that incitement to violence is not protected speech. The United States did so for a long time. Advocating violent revolution was illegal for decades, and the courts upheld the ban as constitutional.

One reason why American lawmakers are reluctant to restrict deadly speech today is the Supreme Court’s 1969 decision, Brandenburg v. Ohio, which held that speech could only be criminalized if it was likely to cause “imminent unlawful action.” Discussions on 4chan-like forums do lead to murder, but not imminently over the course of a few years.

Yet, as Justice Richard Posner wrote after 9/11, “the Constitution is not a suicide pact.” In other words, when necessary to save lives, governments are sometimes justified in going ahead and acting decisively, despite uncertainty about unconstitutionality.

Perhaps we should pass a law allowing the state government to block access to websites that routinely encourage people to commit mass murder. The Supreme Court could declare such a law constitutional. After all, a lot has changed since 1969.

Of course, blocking access to pro-terrorism discourse isn’t the only way to prevent mass shootings, and there are many strategies worth considering. For one thing, why was the Tops shooter so isolated, with nothing but vile internet trolls to give his life meaning?

Young people are drowning in digital dopamine but are hungry for real human connections. We must ensure that even those who struggle to fit in can live a fulfilling life face to face, by teaching them tolerance and giving them a concrete reason to live.

Jesse J. Norris, JD, Ph.D., is an associate professor of criminal justice at SUNY Fredonia.