Regulating Cyber Racism in the United States: Legal and Non-Legal Responses from a Comparative Perspective

Abstract

<p>The global outbreak of COVID-19 in 2020 has unleashed virulent xenophobia and a tide of racial hatred. There have been increasing reports of racist hostility in the digital environment. Former President Trump's racist remarks on social media platforms allowed these divides to resurface in the United States. Racial hostility in the virtual world has already fostered aggressive behavior in the offline world. In some cases, it has crossed the line from online hate speech to real-world hate crime. Cyber racism creates new challenges for the American legal system.</p><p>This research investigates the possibility of regulating cyber racism in the United States from a comparative perspective. Part I provides background information and introduces the structure of the research. Part II analyzes the international legal framework governing racial discrimination and suggests that due to the lack of enforcement power, the world cannot rely upon the international legal system for racial justice. Instead, individual countries must take responsibility for fighting racism. Part III examines cyber racism in the United States from two aspects: (1) the urgent need to address cyber racism, and (2) the constitutional challenges under current First Amendment jurisprudence. Part IV proposes a multi-faceted approach that encompasses both legal and non-legal responses to combat cyber racism in the United States. In this Part, the practices of some of the world's most democratic countries, namely, France and Australia, are assessed from a comparative perspective. In the legal context, the French and Australian models provide persuasive authority for the United States Supreme Court to impose more restrictions on racist speech while interpreting the First Amendment. This Article also suggests that the Australian scrutiny tests strike a better balance between the right of free speech and the right to freedom from racism than equivalent U.S. tests. Therefore, the Australian system could provide a great reference for the United States Supreme Court as it seeks to solve problems in applying the Brandenburg test. Furthermore, a well-designed conciliation process also provides an effective avenue for aggrieved parties to seek racial justice. In the non-legal context, increased responsibility for Internet intermediaries and anti-racism education are crucial in combating cyber racism. Part V concludes the research by re-emphasizing the importance of regulating cyber racism in the United States. It is hoped that the solutions proposed in this research can strengthen the arsenal of tools available to prevent cyber racism.</p>