11.4 You Decide

In March 2019, Brenton Tarrant entered two mosques in Christchurch, New Zealand, killing fifty-one Muslim worshippers. Tarrant, a 28-year-old Australian-born white supremacist, wore a helmet-mounted camera and livestreamed the killings on "Facebook Live." The video was viewed roughly four thousand times before Facebook was notified and removed the video. However, the video already had been copied and uploaded on 8chan (now 8kun), a social message board that is known to host white supremacist content. Facebook within the next twenty-four hours was able to block roughly 1.5 million attempts to re-upload the video onto its site and took down 300,000 copies of the video that had been uploaded onto Facebook.

Tarrant also had posted a seventy-four-page hate-filled manifesto online immediately before the killings. He subsequently pled guilty to fifty-one counts of murder, forty counts of attempted murder, and one charge of terrorism.

New Zealand declared that it was a crime to share the manifesto and stated that it would prosecute individuals who posted the video. Roughly a dozen individuals were warned or charged for promotion of racial hatred based on their endorsing of the killings in Christchurch or for sharing the video and may confront lengthy prison sentences and/or fines.

The manifesto and videos nonetheless have been posted by sites devoted to hosting extremist views, and a video game based on the Christchurch killing and a meme featuring Tarrant's photo circulated online. Various forums praised the actions of "St. Tarrant," patron saint of right-wing extremists. The day Tarrant was to appear in a court in New Zealand, a user on Reddit flagged a post on 8chan announcing a plan to follow Tarrant's example and to attack a mosque in Texas. In April 2019, a gunman inspired by Tarrant entered a San Diego, California, area synagogue and killed one person and injured three others. The killer posted his own manifesto and allegedly had intended to livestream the attack.

The Australian government a month following the Christchurch killings passed a law holding social media companies liable for failing to remove "abhorrent violent material expeditiously" that is posted by the perpetrator of the act or by an accomplice to the act that is accessible within Australia. "Abhorrent violent material" includes acts of "terrorism, murder, attempted murder, torture, rape and kidnapping." Social media companies that fail to remove such content "expeditiously" may be fined up to 19 percent of their annual profit, and individual employees who violate the act may confront as much as three years in prison.

Major tech companies opposed the Australian law and argued that they should not be held liable for the posting of material by users and that the law would require the companies to undertake the almost impossible task of monitoring material posted and reposted by users across the globe. Commentators critical of the Australian law claimed that the law will encourage censorship and takedowns by companies that will respond by relocating their offices to countries outside of Australia to avoid prosecution. Tech companies argued that the focus should be on combating the fundamental evil of extremism rather than on prohibiting the posting of objectionable content.

The United States has taken a different approach. Section 230 of the Communications Decency Act states that a provider of an "interactive computer service" shall not be legally responsible for any "information provided by another information content provider." In other words, Reddit, Facebook, and YouTube, unlike the publisher of a newspaper or television or radio station that controls and edits material that is published or disseminated, cannot be held legally responsible for the content posted on their sites. Section 230 according to the tech industry has allowed Internet sites to develop without being held liable for the content posted on their platforms. A 2018 law creates an exception to Section 230 for websites that "knowingly assist, facilitate, or support sex trafficking."

In July 2019, French president Emmanuel Macron and New Zealand prime minister Jacinda Ardern organized an international conference attended by eighteen countries and five leading American tech firms. The attendees endorsed and signed the non-binding Christchurch Call, a document pledging the signatories to combat online extremism through new regulations and to "encourage media outlets to apply ethical standards when depicting terrorist events online." Signatory states include Australia, Canada, the European Commission, France, Germany, Indonesia, India, Ireland, Italy, Japan, Jordan, the Netherlands, New Zealand, Norway, Senegal, Spain, Sweden, and Britain. The pledge leaves signatories free to determine how to enforce the agreement. Amazon, Facebook, Google, Microsoft, and Twitter in a joint statement pledged to fight to combat the hatred and extremism that lead to terrorist violence. The companies subsequently announced a nine-point plan to combat objectionable content including more sophisticated automatic detection systems, enhanced vetting of livestreamed videos, and joint research efforts.

President Trump failed to attend the conference in Paris with other world leaders, and the White House announced that the United States would not sign the Christchurch Call. The Trump administration explained that the document may conflict with First Amendment freedom of expression but affirmed that the United States stands "with the international community in condemning terrorist and violent extremist content online." President Trump, however, had previously threatened to regulate social media based on an alleged bias against conservatives and issued a call for Internet users to share stories of having been censored by Facebook, Google, YouTube, and Twitter. Keep in mind that the First Amendment protects freedom of expression from governmental restrictions and does not address restrictions imposed by private entities.

The Christchurch Call reflects frustration with tech companies that have struggled to prevent hate speech on their platforms. Facebook, for example, has been criticized for allowing incitements to ethnic violence in Sri Lanka and to genocide in Myanmar.

Keep in mind that the United States has a broader view of the scope of freedom of expression than many other countries. Germany, for example, prohibits "incitement to hatred," which has been interpreted as prohibiting Holocaust denial, the posting of hateful comments about immigrants, and promoting a fascist ideology. German law also outlaws the public display of the Nazi swastika as well as the Nazi "Sieg Heil" salute.

Should the United States have signed the Christchurch Call?