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de•novo CARDOZO LAW REVIEW

• Funerals, Fire, and Brimstone •

WOULD OTHER COUNTRIES PROTECT THE PHELPSES’ FUNERAL PICKETING? Stephen R. McAllister* INTRODUCTION I must begin with a few caveats. First, I serve on a part-time basis as the Solicitor General of Kansas, and in that capacity I was a primary author of an amicus brief that Kansas filed on behalf of herself and forty-seven other states in Snyder v. Phelps, supporting the petitioner, Mr. Snyder.1 Second, in discussing the constitutional law of other countries in this essay I am not arguing that such law necessarily carries any weight in determining the meaning of provisions of the U.S. Constitution, such as the First Amendment’s Free Speech Clause. Finally, I do not claim to be an expert in comparative constitutional law. My experience and knowledge in this area comes not from scholarly writing I have produced in the past, but primarily from teaching comparative freedom of speech and religion courses in summer study abroad programs several times in recent years. I will share four brief observations derived from teaching comparative constitutional freedom of speech and privacy principles that may help us think about Snyder v. Phelps in a more global context. This essay briefly identifies and discusses each of those observations, addresses a few examples of case law from other countries, and ultimately speculates briefly about how the courts of other countries might react to the situation presented in Snyder v. Phelps.

* Stephen R. McAllister is a Professor of Law at the University of Kansas and serves on a parttime basis as the Solicitor General of Kansas. With respect to the drafting of the Kansas amicus brief in Snyder v. Phelps, Professor McAllister and Kansas gratefully acknowledge the generous assistance that Professor Jeffrey Shulman provided when he supplied Kansas with a draft of his symposium article prior to its publication. Kansas had the benefit of Professor Shulman’s thinking, and not vice versa. Unlike the Kansas amicus brief, this essay represents only Professor McAllister’s personal views, and the author alone is responsible for any errors or omissions. 1 See Brief for the State of Kansas, 47 Other States, and the District of Columbia as Amici Curiae in Support of Petitioner, Snyder v. Phelps, 130 S. Ct. 1737 (2010) (No. 09-751), 2010 WL 2224733; see also Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009).

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OBSERVATION #1: ALTHOUGH MOST OF THE WORLD RECOGNIZES FREE SPEECH RIGHTS, MANY COUNTRIES ALSO RECOGNIZE INDIVIDUAL PRIVACY AS A CO-EQUAL RIGHT A good starting point for a discussion of comparative free speech principles is the European Convention on Human Rights (“ECHR”) which, since 1950, has been a major influence on the jurisprudence of countries in Europe and around the world. That charter contains two provisions perhaps directly relevant to the questions presented in Snyder v. Phelps: Article 8. Right to respect for private and family life 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.2 Article 10. Freedom of expression 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.3

Importantly, and notably, the ECHR explicitly recognizes two personal, legal interests that the U.S. Constitution arguably does not. First, Article 8 expressly acknowledges an individual right of “privacy” 2 Convention for the Protection of Human Rights and Fundamental Freedoms art. 8, Nov. 4, 1950, 213 U.N.T.S. (Nov. 4, 1950) [hereinafter ECHR], available at http://www.echr.coe.int/ NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/ENG_CONV.pdf. 3 Id. at art. 10.

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for “family life” and in the “home.”4 Although the Fourth Amendment to the U.S. Constitution protects an individual’s privacy in papers and possessions in the home,5 and the Fourteenth Amendment’s Due Process Clause has been read to protect privacy in certain matters involving family life and intimate choices,6 nothing in the U.S. Constitution expressly creates a general right of privacy, in contrast to the ECHR which seems to recognize precisely such a general right. On the other hand, like the Fourteenth Amendment which hinges on “state action,”7 the second paragraph of Article 8 seems to focus on preventing only government interference with privacy rights; it does not speak to private interference by groups such as the Phelpses with the privacy of individuals like Mr. Snyder. In some respects, Article 10 provides an even more striking contrast to the U.S. Constitution. Although the First Amendment obviously guarantees freedom of speech (although, again, with a focus only on preventing government interference), nothing in the U.S. Constitution qualifies that freedom based on “the protection of the reputation or rights of others,” as does Article 10.8 In fact, since New York Times Co. v. Sullivan,9 the Supreme Court of the United States has made it extremely difficult for those claiming injury to reputation to pursue legal remedies against those whose speech may be causing such injury. Furthermore, in terms of the potentially competing values of free speech versus protection of individual reputation, the U.S. Supreme Court has largely eliminated any competition, coming down heavily in favor of freedom of speech to the general detriment of the protection of reputational interests. Among other decisions, that Court has made it ever more difficult for successful defamation or tort claims to be brought when based on speech by the defendant that implicates any public official, public figure, limited 4 See id. at art. 8. Privacy is also recognized as a fundamental human right in several other international documents, including the Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. GAOR 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 10, 1948), available at http://www.un.org/en/documents/udhr/index.shtml, the International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16), U.N. Doc. A/6316 (Dec. 16, 1966), available at http://www2.ohchr.org/english/law/ccpr.htm, and the American Convention on Human Rights, Organization of American States, Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 123, available at http://www.oas.org/juridico/english/treaties/b-32.html. 5 U.S. CONST. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . .”). 6 See, e.g., U.S. CONST. amend. XIV; Lawrence v. Texas, 539 U.S. 558 (2003) (right of consenting adults of the same sex to engage in sexual activity); Troxel v. Granville, 530 U.S. 57 (2000) (right of parents to control the upbringing of their children); Roe v. Wade, 410 U.S. 113 (1973) (right of a woman to terminate a pregnancy); Loving v. Virginia, 388 U.S. 1 (1967) (right to marry). 7 See U.S. CONST. amend. XIV (“[N]or shall any State deprive any person” of due process or equal protection); Virginia v. Reves, 100 U.S. 313, 318 (1879) (“The provisions of the Fourteenth Amendment . . . all have reference to State action exclusively, and not to any action of private individuals.”). 8 ECHR, supra note 2, at art. 10. 9 376 U.S. 254 (1964).

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public figure or when the speech involves a matter of pubic concern.10 In fact, the Court has expressly held that reputation, standing alone, is not a constitutionally protected interest.11 OBSERVATION #2: THE COURTS OF MANY COUNTRIES EXPLICITLY BALANCE COMPETING PRIVACY AND FREE SPEECH INTERESTS It is apparent that a number of countries in Europe, including England, France and Germany, as well as the European Court of Human Rights have taken Article 8’s recognition of privacy interests and Article 10’s recognition of reputational interests seriously and given them substantial meaning. Accordingly, European courts have limited freedom of speech in significant ways that the United States Supreme Court does not. For example, the European Court of Human Rights over time has developed a well-recognized and explicit “balancing” analysis in which that Court will weigh the freedom of speech claims raised in a particular case against the contrary asserted interests in protecting the reputation of individuals and even groups. Similarly, the courts of some individual countries, notably Germany and France, also have engaged in such a balancing of interests. A good example of such a European case involving purely private parties is the Mephisto Case,12 in which the German Constitutional Court granted a family’s request for an injunction against the publication of a satirical novel based on a member of the family. The Court reached its decision to enjoin publication by balancing the competing constitutional values in artistic expression and personal dignity, concluding that the dignity interests in this case outweighed the artistic interests. As one source puts it, “[g]enerally, German and other European courts are much more concerned with human dignity in the speech context than U.S. courts.”13 It seems apparent that in a case like Snyder v. Phelps, the ECHR and other courts that use a balancing approach likely would uphold at 10 See, e.g., Hustler Magazine v. Falwell, 485 U.S. 46, 50 (1988) (public figure plaintiff parodied by defendant magazine in the most offensive and obnoxious manner could not recover for intentional infliction of emotional distress); Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 776-77 (1986) (even in a defamation case by a private figure, the plaintiff has the burden to prove the allegedly defamatory statements are false). 11 Paul v. Davis, 424 U.S. 693, 701, 711-12 (1976). 12 Mephisto Case, Bundesverfassungsgericht [BverwG] [Federal Constitutional Court], Feb. 24, 1971, 30 Entscheidungen des Bundesverfassungsgerichts [BverfGE] 173 (F.R.G.), reprinted in NORMAN DORSEN ET AL., COMPARATIVE CONSTITUTIONALISM: CASES AND MATERIALS 84952 (2003) (translated and excerpted). 13 DORSEN ET AL., supra note 12, at 852 (at note 1); see also James Q. Whitman, Enforcing Civility and Respect: Three Societies, 109 YALE L.J. 1279, 1284 (2000) (“[T]he European culture of honor and dignity reaches very deep into everyday social life, covering what to us [Americans] seem astoundingly trivial matters of civility.”).

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least some time, place and manner regulations of funeral picketing. For example, it would be relatively easy to conclude that buffer zones around a funeral are a reasonable compromise between the free speech rights of the protesters and the privacy rights of the mourners. Furthermore, several European and other courts have been willing to impose tort liability for speech in situations where the U.S. Supreme Court has reached the opposite conclusion, suggesting that some of those foreign courts might permit at least some form of tort liability in a case like Snyder v. Phelps. Again, it would not be surprising to see such courts upholding some tort liability as a reasonable compromise between the competing free speech and privacy interests that the European Convention on Human Rights and many countries expressly recognize. These speculations are bolstered by indications that European courts are more protective of the privacy of private figures than American courts have been for the past 45 years. For instance, in Peck v. United Kingdom, a private citizen won a decision that a local government had invaded his privacy under Article 8 when the government sold film footage of the plaintiff walking across the town square while carrying a knife.14 The BBC broadcast the footage while reporting on crime (it turned out the plaintiff later used the knife in a suicide attempt). The European Court of Human Rights ruled in favor of the plaintiff, after balancing the competing interests, holding that the government’s interests in preventing crime and promoting public safety did not outweigh the serious invasion of the plaintiff’s privacy in this instance. Importantly, the plaintiff was not a public official or public figure, did not consent to the filming, and the broadcaster had taken no steps to conceal the plaintiff’s identity. Indeed, it is not self-evident that as a matter of “constitutional” interests, free speech should always be favored over individual privacy. The Supreme Court of the United States has in effect adopted a strong (almost irrebuttable) presumption that freedom of speech always trumps claims of privacy. The ECHR, other international agreements, and some European courts certainly take a different view, one that is neither unreasonable nor necessarily explained solely by virtue of different national histories and cultures. There is a marked reluctance on the part of American courts to police speech in the United States, almost no matter what is said, about whom it is said, or in what context it is said. Certainly, in the context of Snyder v. Phelps, the longstanding American approach may bolster the Phelpses’ chances in the Supreme Court. However, at some level, Snyder v. Phelps raises an important philosophical question, one on which different countries will disagree: Is nothing sacred?

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Peck v. United Kingdom, 2003-I Eur. Ct. H.R. 123.

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OBSERVATION #3: MANY COUNTRIES PROVIDE GREATER PROTECTION TO INDIVIDUAL PRIVACY AND REPUTATION INTERESTS THAN DOES THE SUPREME COURT OF THE UNITED STATES In Snyder v. Phelps, the Fourth Circuit relied on well-established Supreme Court precedent, primarily in the defamation context, to conclude that the Phelpses could not be held liable in tort for their speech activities. But the American view of the level of constitutional protection accorded defamatory and other hateful or harmful speech is by no means universally accepted, even among our western friends and allies. France long has recognized a strong right to privacy.15 In fact, the ECHR is viewed as more protective of speech than traditional French law, causing French jurisprudence to give some ground to media and other freedom of speech interests.16 In France, the protection of privacy is largely a matter of statute, not constitutional law, unlike Germany, which has based legal recognition of privacy interests in constitutional doctrine. Importantly, in contrast to the Supreme Court of the U.S., the German courts have utilized constitutional principles to increase the protection of privacy: “In the United States, the linkage to the Constitution has led to diminished privacy protection due to free speech interests, while in Germany it has led to the enhancement of the protection of privacy.”17 Furthermore, in the context of defamation, a number of countries around the world have expressly rejected the New York Times v. Sullivan framework for analyzing defamation claims in light of an asserted defense of freedom of speech. For example, the Canadian Supreme Court critiqued and rejected the New York Times v. Sullivan actual malice rule at length in Hill v. Church of Scientology.18 That court leveled four criticisms at the rule in rejecting it for Canada, opining that New York Times v. Sullivan suffers from the following flaws: First, it may deny the plaintiff the opportunity to establish the falsity of the defamatory statements and to determine the consequent reputational harm. That is particularly true in cases where the falsity is not seriously contested.19 15 See, e.g., Rachel affaire, Tribunal première instance [T.P.I.] Seine, Jun. 16, 1858, D.P. III 52 (Fr.) (holding that “no one may, without explicit consent of the family, reproduce or bring to the public eye the image of an individual on her deathbed, whatever the celebrity of the person involved.”); Jeanne M. Hauch, Protecting Private Facts in France: The Warren & Brandeis Tort Is Alive and Well and Flourishing in Paris, 68 TULANE L. REV. 1219 (1994). 16 JULIE A. DAVIES & PAUL T. HAYDEN, GLOBAL ISSUES IN TORT LAW 221 (2008). 17 Id. at 223. 18 Hill v. Church of Scientology, [1995] 2 S.C.R. 1130 (Can.). 19 Id. at ¶ 128.

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Second, it necessitates a detailed inquiry into matters of media procedure. This, in turn, increases the length of discoveries and of the trial which may actually increase, rather than decrease, the threat to speech interests.20 Third, it dramatically increases the cost of litigation. This will often leave a plaintiff who has limited funds without legal recourse.21 Fourth, the fact that the dissemination of falsehoods is protected is said to exact a major social cost by deprecating truth in public discourse.22

The Canadian court also pointed out that the Hill case did “not involve the media” with the result that the court was reluctant to protect false speech.23 The U.K. and Australia also have rejected the “actual malice” rule.24 The difference between the European and American views of the relationship between freedom of speech and personal privacy are wellrecognized: Differences in cultural tradition . . . have made for palpable differences in law. The differences are most striking, and most categorical, where the values of free speech are involved.25 The right of free expression that protects the press is always balanced in continental Europe against an individual right to “dignity,” “honor,” or “personality,” which implies a right to personal privacy.26 In Europe, by contrast [to the United States], personal honor very often wins out. As one German author put it in 1959—a time when Germans began to reassert their own distinctive national traditions— there is simply an inevitable tension between the worldview of a Goethe, for whom the development of “personality” was “the greatest blessing of the children of the earth,” and the worldview of a Jefferson, for whom press liberty was the indispensable foundation of a free society.27

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Id. at ¶ 129. Id. at ¶ 130. Id. at ¶ 131. Id. at ¶ 139. See Theophanous v. Herald & Weekly Times Ltd. (1994) 182 C.L.R. 104, 723 (Austl.) (expressly rejecting the New York Times v. Sullivan rule); Heather Maly, Publish at Your Own Risk or Don’t Publish At All: Forum Shopping Trends in Libel Litigation Leave the First Amendment UnGuaranteed, 14 J. L. & POL’Y 883, 905-06 (2006) (discussing distinct differences between the protection of speech from defamation claims in the U.S. and the U.K.). 25 James Q. Whitman, The Two Western Cultures of Privacy: Dignity Versus Liberty, 113 YALE L.J. 1151, 1196 (2004). 26 Id. at 1197 (footnote omitted). 27 Id. at 1197-98 (footnote omitted).

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OBSERVATION #4: MANY COUNTRIES REGULATE OR EVEN CRIMINALIZE HATEFUL SPEECH The United States stands virtually alone in the world in its tolerance of hateful speech. Perhaps no other country will tolerate the expression of such hateful and offensive opinions, the denigration of entire groups as well as individuals, or the spread of misinformation to the extent that such “speech” is deemed constitutionally protected in the United States. Several international agreements call for the regulation, even criminalization, of hate speech: The [ECHR] has also been interpreted as authorizing criminalization of hate speech. . . . A particularly strong stand against hate speech, which includes a command to states to criminalize it, is promoted by the 1965 International Convention on the Elimination [of] All Forms of Racial Discrimination (CERD). Its Article 4 cited by [the Canadian Supreme Court in holding that hate speech receives no constitutional protection] requires that states criminalize incitements to racial hatred and that they prohibit organizations that promote and incite racial discrimination. The United States attached a reservation to its ratification of CERD on the grounds that compliance with article 4 would contravene current American free speech jurisprudence. . . . Most Western constitutional democracies follow Canada in refusing constitutional protection to hate speech.28

Dramatic examples of the contrast come from countries such as Germany, France, and Austria where, for example, it can be a crime to display Nazi symbols such as the swastika or to deny that the Holocaust occurred. Perhaps best known is the Holocaust Denial Case29 in which the German Constitutional Court upheld an injunction against a notorious Holocaust-denier who intended to speak at a political party meeting and voice his claim that “the mass extermination of the Jews during the Third Reich never happened.”30 Even applying a presumption in favor of free speech, the German court held that false 28 Michel Rosenfeld, Regulation of Hate Speech, in GLOBAL PERSPECTIVES ON CONSTITUTIONAL LAW 181, 191 n.1 (Vikram David Amar & Mark V. Tushnet eds., 2009) [hereinafter GPCL]; see also Kevin Boyle, Hate Speech—The United States Versus the Rest of the World?, 53 ME. L. REV. 487 (2001); Michel Rosenfeld, Hate Speech in Constitutional Jurisprudence: A Comparative Analysis, 24 CARDOZO L. REV. 1523 (2003). Provocatively, it also has been suggested that, “over the years, American jurisprudence has been much more prone to exclude extremist speech coming from the left whereas Western European jurisprudence has been much less tolerant of extremist speech coming from the right.” GPCL, supra, at 197. 29 Holocaust Denial Case, Bundesverfassungsgericht [BverwG] [Federal Constitutional Court], Apr. 13, 1994, 90 Entscheidungen des Bundesverfassungsgerichts [BverfGE] 241 (F.R.G.), reprinted in DORSEN ET AL., supra note 12, at 913-18 (translated and excerpted). 30 Id. at 913.

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speech “do[es] not constitute an interest worth protecting”31 and thus a “deliberate or demonstrably untrue representation of fact is not covered by the protection enjoyed by freedom of expression.”32 The court further acknowledged that distinguishing between expressions of “opinion” (not necessarily verifiable) and false “assertions of fact” may be difficult, but the Court concluded that such a distinction is necessary.33 Furthermore, the German court pointed out that Germany recognizes group defamation and that “denial of the persecution of the Jews is regarded as an insult to [Jews as a] group.”34 Canada also has shown a low tolerance for hateful speech, including at least one effort by the Phelpses to protest a funeral in Canada. News reports indicated that after a violent and macabre murder of a young Canadian man on a Greyhound Bus in Canada in 2008, the Phelpses declared that they would protest the young man’s funeral with their usual messages. Canada’s Public Safety Minister apparently issued an alert to Canadian border officials “to be on the lookout for people with signs and pamphlets that deliver the American group’s message and to ban them from entering the country.”35 The Phelpses claimed that they sneaked past border officials (in part because “[t]hey [Canadian officials] were looking for picket signs and they were looking for leaflets. Well, we don’t do leaflets, and the picket signs, you know, Fed Ex ships them overnight.”) but were concerned about their safety and so ultimately did not protest at the funeral.36 By contrast, in the United States, the assertion of false facts, especially when not targeting and about a particular individual, generally is protected by current doctrine. Moreover, the Fourth Circuit in Snyder v. Phelps effectively held that any assertion of “opinion”, no matter how outrageous and hateful, and no matter the context in which asserted, is constitutionally protected.37 It seems clear that courts in Germany (and probably France, England, and other countries) would not go so far in protecting speech and in failing to protect the privacy and reputation of families and individual citizens.38 31 32 33 34

Id. at 917. Id. at 915. Id. Id. at 917; see also Regina v. Keegstra, [1990] 3 S.C.R. 697 (Can.) (upholding criminal conviction of a high school teacher for making anti-Semitic statements and teaching anti-Semitic propositions to his class). 35 American Fringe Group Plans To Protest Funeral Of Greyhound Beheading Victim, CITYNEWS (Toronto, Canada), Aug. 8, 2008, available at http://www.citytv.com/toronto/ citynews/news/local/article/3956—american-fringe-group-plans-to-protest-funeral-of-greyhoundbeheading-victim. 36 Church members enter Canada, aiming to picket bus victim’s funeral, CBC (Canada), Aug. 8, 2008, available at http://www.cbc.ca/canada/manitoba/story/2008/08/08/westboro-protest.html. 37 See Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009). 38 Apparently, the U.S. tolerance for (and indeed protection of) hate speech on the internet poses significant problems for other countries that have an interest in placing some restrictions on such online speech. See BRIAN LANDSBERG & LESLIE JACOBS, GLOBAL ISSUES IN

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CONCLUSION The situation presented in Snyder v. Phelps probably would raise difficult and perhaps tricky issues of individual rights in many countries around the world, and certainly in those that place a high value on freedom of speech. On the other hand, it seems apparent that probably no other country in the world protects hateful, insulting, offensive, and even false speech to the extent that the United States protects such speech under current First Amendment doctrine. The courts of many countries likely would apply an explicit balancing analysis to the situation presented in Snyder v. Phelps. That balancing analysis would weigh the value and importance of the freedom of speech in the context presented, on the one hand, against the real and potential harm to the privacy, reputation, and rights of grieving families and individual citizens who were the targets of such speech, on the other hand. Perhaps even some countries that engage in this explicit balancing would decide to protect the Phelpses’ asserted “opinions” in this case, but it seems very likely that at least some would not. Indeed, it seems probable that some, perhaps many, countries would fail to see value in protecting the Phelpses’ hateful, offensive speech that targets grieving families at one of the worst possible times for such families. Fortunately for those countries (except perhaps Canada), the Phelpses have not yet tested their tolerance or jurisprudence. That said, it would be interesting to see the reaction of the citizens and the courts in countries such as Canada, the United Kingdom, Germany, France, Australia, South Africa—and probably many other countries around the world were the Phelpses ever to pay a visit to a funeral of one of their deceased warriors.

CONSTITUTIONAL LAW 175-77 (2007) (discussing the situation with regard to international efforts to police the Internet for hateful and racist websites and speech (quoting Isabelle Rorive, Racism and Xenophobia on the Internet – Where Are We in Europe?, 7 INT’L J. COMM. L. & POL’Y 1, 1-10 (2003) ).