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Excerpted From: Ying Chen, Regulating Cyber Racism in the United States: Legal and Non-legal Responses from a Comparative Perspective, 38 Wisconsin International Law Journal 477 (Summer, 2021) (335 Footnotes) (Full Document)


NoPictureAvailable03International human rights law began to combat racism in the 1960s. A half-century later, racism remains an immense global problem and continues “poisoning our racial atmosphere, with no cut-off date in sight.” is nothing new in the offline world. In the United States, scholars have described racial hostility as “American poison” that “has stunted the development of nearly every institution crucial for a healthy society.” In Australia, according to data provided by the Australian Human Rights Commission, about one in five Australians “report having experienced racial discrimination.” Although the European Union has made impressive progress in reducing racial inequality, it is by no means free of racism and xenophobia.

There is also a growing concern with racism that manifests in the online world--particularly after the global outbreak of COVID-19 in 2020--in which there has been a massive surge in cyber racism targeting ethnic Asians. For example, an Instagram post in April 2020 called for shooting “every Asian we meet in Chinatown” and claimed that it was “the only way we can destroy the epidemic of coronavirus in NYC!” Derogatory terms for ethnic Asians, particularly ethnic Chinese, have also been widely used on the internet. The research conducted by Schild and his co-authors indicates that “c****” (a derogatory term referring to ethnic Chinese), “c****land” (a derogatory term referring to the land of China), and “c**n ***** s” (an offensive word that combines “China” and “n *****”) are among the top ethnic slurs used in cyberspace after the global outbreak of COVID-19. Furthermore, terms that conflate COVID- 19 with ethnic and national identity, such as “Kung Flu,” were also created and used on the internet. Former President Donald Trump endorsed the term “Kung Flu.” He also referred to COVID-19 as the “Chinese Virus” in several of his Twitter posts, despite many officials (including the Chief of the Centers for Disease Control and Prevention (“CDC”) Robert Redfield) warning that the term is inaccurate, inappropriate, and harmful in tying racist associations between the virus and those with a Chinese background. Since Trump's Twitter posts, reports of COVID-19-related racism have been on the rise in cyberspace. Even worse, online anti-Asian rhetoric has extended beyond the internet and spilled into the real world with damaging consequences. across the country have been yelled at and attacked in public.

The development of social media platforms since the mid-2000s such as Facebook, Twitter, Instagram, and YouTube has enabled millions of users worldwide to interact with each other and to produce their own content (known as “user-generated content”) in a virtual environment. Meanwhile, for individuals or groups with racist attitudes, it has also provided new avenues to spread, incite, promote, and justify racial hatred. Cyber racism creates new challenges for our legal system. However, the law has yet to adjust to these changing technologies.

This research investigates the possibility of regulating cyber racism in the United States from a comparative perspective. Part I 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 states must bear direct responsibility for reducing racism in both the offline and online worlds. Part II examines cyber racism in the United States from two main aspects: (1) the problems of cyber racism and the urgent need to address these problems, and (2) the barriers to cyber racism regulation; specifically, the constitutional challenges under current First Amendment jurisprudence. Part III proposes a multi-faceted approach that encompasses both legal and non-legal responses to combat cyber racism in the United States. In this section, the European and Australian approaches are assessed from a comparative perspective. This research suggests that some of the European and Australian approaches are useful for the United States and should be adopted. Part IV 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 article can strengthen the arsenal of tools available to prevent cyber racism.

[. . .]

The global outbreak of COVID-19 in March 2020 unleashed “a virulent xenophobia and tide of racial hatred.” There have been increasing reports of racist abuse in the digital environment. Former United States President Donald Trump's racist remarks on social media platforms further fueled this new round of racial division in the United States. Even worse, racial hostility in the virtual world had 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. Although racism is strictly prohibited under international human rights law, its elimination “remains an unrealized promise of universal human rights.” This is a particularly worrying concern in the United States due to the First Amendment's (over)protection of free speech. Online racist content's negative impact on human rights, such as the right to freedom from racism, has gone largely, if not completely, neglected.

In response to the clash between the right to free speech and the right to freedom from racism, some of the leading democratic countries in the world, such as France and Australia, offer the United States a model answer. The difficulties and sensitivities around cyber racism regulation should not be excuses for a “hands-off” approach. The ubiquity of cyber racism and its destructive real-world implications have demonstrated that the United States cannot afford to ignore this problem.

The United States should take immediate action on racial inequality. In the absence of legislative protection, “the vulnerable remain unprotected, and the aggressors continue smirking.” Thus, in the legal context, this article suggests new laws should be enacted to regulate racist behavior and “restrain the heartless,” although it admits this proposal is over-ambitious and unlikely to be implemented in the foreseeable future. Nevertheless, 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. In the non-legal context, this article encourages internet intermediaries to take greater responsibility in monitoring racism on their websites and resolving complaints of racial discrimination and breaches of human rights. Other non-legal approaches, such as anti-racism education, are also crucial in combating cyber racism.

It is not realistic to completely eradicate cyber racism within a short timeframe because it has deep structural roots that are not easy to remove. Nevertheless, as pointed out by Emeritus Professor Andrew Jakubowicz, it is an achievable goal to contain cyber racism and “push it back into ever-smaller pockets.” Robust protection of human rights in the digital environment would “promote far more valuable speech than it would inhibit.” We must protect people from racism while ensuring free speech. This article calls for both public and private sectors in the United States to take positive steps to fight cyber racism. The world needs everyone to speak and act in a way that does not splinter our society along racial lines.

Dr. Ying Chen, Lecturer in Law, Chair of International Advisory Group, University of New England (UNE) School of Law, Armidale, NSW2351, Australia.

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