The Reach of Free Speech: Lack of Regulation on the Internet

Jennifer Landeros

The Internet efficiently connects users across the globe, but these communications do not always have positive impacts. Too often, people with malicious intents use the Internet to spread extremist, and sometimes terroristic, philosophies. These philosophies are now immensely common online and are encouraging violent crimes, including mass shootings.[1]

The conversations in the aftermath of mass shootings usually revolve around the Second Amendment’s right to bear arms and, increasingly, mental health. But people and politicians fail to realize that the Internet is a sizable force behind these atrocities. 

The shooter of the Walmart in El Paso, Texas, in August 2019 was a known political extremist and user of 4Chan/8Chan, an online chat forum.[2] Hours before he stormed into the shopping center, a white supremacist manifesto with the man’s name appeared on 4Chan/8Chan that explained an intent to kill Hispanics who are “invading” the U.S.[3] The platform is known for its lack of moderation within conversations, and its only rule forbids users from breaking U.S. law. The First Amendment is widely embraced among this community with users who feel entitled to spread any idea, often radical ones. 

Users do not need to create a profile or even a pseudonym to comment or post content, eliminating any sense of users’ responsibility for materials they post. While the people of El Paso mourned their losses, some users of online forums exuberantly admired the shooter. Users commented on their approval or disapproval of the “performance” of the shooter and claimed they could achieve a higher “score.”[4] This sinister network diminishes human bodies to mere points and potential for social popularity among extremist groups. 

Online forums are not unique to hosting ideas endorsing violence; YouTube and Instagram have also held their shares of violent messages, as seen with another mass shooting in Parkland, Florida, that swept the nation. The shooter of Marjory Stoneman Douglas High School confessed in a comment on YouTube that he would become a “professional school shooter.”[5]

Hate speech is protected like most other speech, with a few narrowly tailored exceptions.[6] Though people ask for more regulation of online communities, the First Amendment currently gives free reign to most forms of cyberspeech. 

The landmark Supreme Court Elonis v. United States (2015) helped establish distinctions between true threats and simple online banter.[7] According to federal anti-threat statute 18 U.S.C. § 875(c), it is a federal offense to “transmit in interstate or foreign commerce any communication containing … any threat to injure the person of another.”[8] Here, Elonis directed hateful speech towards his ex-wife, but the Supreme Court “held that a conviction under 18 U.S.C. § 875(c) may not be based solely on a reasonable person’s interpretation of the defendant’s words.”[9] Instead, Chief Justice John Roberts wrote in the majority opinion that mens rea, or an intent or knowledge of wrongdoing, was required to prove Elonis guilty under § 875(c).[10]

This case established that there must be explicit intent in online threats in order to prosecute them. Thus, people spreading dangerous and inciteful ideas online are protected so long as there is no way to prove an intent to harm someone, even if their words inspire violence in other people. 

Unlike Elonis’ case, Snyder v. Phelps (2010) is an instance where the First Amendment protected potentially harmful speech.[11] A judge for the United States District Court for the District of Maryland awarded Snyder $5 million after finding Snyder to be the victim of hate speech and potential threats during in-person verbal attacks at his son’s funeral. The Fourth Circuit Court of Appeals reversed the decision, stating Phelps’ actions were protected under the Free Speech Clause of the First Amendment.[12] The Supreme Court decided that because the speech was generally commenting on a public issue, Phelps had the right to speak and act in a way that inflicted emotional distress on Snyder.[13] Though Phelpswas based on an in-person interaction, the Supreme Court’s ruling further illustrates that the First Amendment will not restrain online hate speech anytime soon since online threats surrounding these shootings may not be considered specific enough. 

Hate speech online is now widespread, but only a few years ago did it become a reason of mass concern. To date, courts and lawmakers have focused on other pressing cyber issues, such as regulating technology conglomerates, instead of monitoring online threats. As such, America’s legal system does not seem poised to limit hateful philosophies that incite mass shootings from spreading online.



[1] The March 15, 2019, shooting in Chirstchurch, New Zealand, the August 3, 2019, shooting in El Paso, Texas, and the December 10, 2019, shooting in Jersey City, New Jersey, all had online traces of extremism.

[2]  Robert Evans, The El Paso Shooting and the Gamification of Terror, Bellingcat (Aug. 4, 2019), https://www.bellingcat.com/news/americas/2019/08/04/the-el-paso-shooting-and-the-gamification-of-terror/.

[3] Tim Arango et al., Minutes Before El Paso Killing, Hate-Filled Manifesto Appears Online, N.Y. Times, Aug. 3, 2019, available athttps://www.nytimes.com/2019/08/03/us/patrick-crusius-el-paso-shooter-manifesto.html.

[4]  Georgia Wells & Ian Lovett, ‘So What’s His Kill Count?’: The Toxic Online World Where Mass Shooters Thrive, The Wall Street Journal, Sept. 4, 2019, available at https://www.wsj.com/articles/inside-the-toxic-online-world- where-mass-shooters-thrive-11567608631.

[5]  Tim Padgett, Menacing Signs of Parkland School Shooter’s Dark Descent Were Largely Unseen, WUSF News (Feb. 16, 2018), https://wusfnews.wusf.usf.edu/post/menacing-signs-parkland-school-shooters-dark-descent-were-largely-unseen.

[6] Tom Head, 6 Major U.S. Supreme Court Hate Speech Cases, ThoughtCo. (July 18, 2019), https://www.thoughtco.com/hate-speech-cases-721215.

[7] Elonis v. United States, 575 U.S. __ (2015).

[8] 18 U.S.C. § 875(c).

[9] Elonis v. United States, 129 Harv. L. Rev. 331 (2015).

[10] See Elonis v. United States, No. 13–983 U.S. (June 1, 2015) at 16, where Chief Justice John Roberts states, “Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state.”

[11] Snyder v. Phelps, 562 U.S. 443, 443–446 (2011).

[12] Snyder v. Phelps, 562 U.S. 443, 448–458 (2011).

[13] Snyder v. Phelps, 562 U.S. 443 (2011).

73 views
  • Grey Facebook Icon
  • Grey Twitter Icon
  • Grey Instagram Icon

© 2020 Texas Undergraduate Law Review

Thank You to Our Supporters at