Excerpted From: Samantha Barbas, The Rise and Fall of Group Libel: The Forgotten Campaign for Hate Speech Laws, 54 Loyola University Chicago Law Journal 297 (Fall, 2022) (302 Footnotes) (Full Document)


SamanthaBarbasIt is well-known that there is no “hate speech” law in the United States. This feature of American law sets the United States apart from other nations and has been much criticized. The absence of hate speech or group defamation laws in the United States has been attributed to a variety of legal, cultural, and historical factors, including a “free speech consciousness” in American culture, speech protective First Amendment jurisprudence, and Americans' tendency to regard reputation as an individual interest and to therefore see group reputation as unworthy of legal protection.

This Article presents another reason for the absence of hate speech laws in America: the failure of a large-scale social movement in the 1940s to pass hate speech laws, or “group libel” laws, as they were then known. For over a decade, activists called for the passage of federal and state legislation that would impose civil and criminal liability for speech that disparaged racial and religious groups. This “group libel law movement” rose and fell quickly, declining--ironically--just before the Supreme Court issued its 1952 decision in Beauharnais v. Illinois, approving the constitutionality of an Illinois group libel law. By the time of Beauharnais, the movement for group libel laws had dissipated, and many onetime proponents of such laws had come to reject them. The Beauharnais decision led to no new hate speech laws, in part because few advocates remained to promote them. Had the group libel law movement persisted, the United States might have taken a different approach to the regulation of hate speech.

The World War II-era movement for group libel laws was a response to the proliferation of fascist and anti-Semitic groups in the United States that relied on pamphlets, radio broadcasts, direct mail, and other modes of mass communication to convey their noxious views. Existing libel laws, which addressed the defamation of individuals, were inadequate to address the problem of group disparagement. The movement to pass state and federal group libel laws reached its peak between 1941 and 1947. It produced a robust national dialogue on the problem of hate speech, but relatively little in the way of actual law.

By 1950, supporters of group libel laws had abandoned their efforts. The notion of liability for group libel fell into such disfavor that legal scholar Harry Kalven Jr., writing in 1965, observed that “it is probable that among today's law students few have been called upon to think about group libel and that a fair number have never heard the term.”' After that, there were no significant calls for hate speech laws until the 1980s.

How can we explain the rise and fall of the World War II-era movement for hate speech laws? Why did enthusiasm for group libel laws wane, despite the U.S. Supreme Court's apparent approval of group libel laws in Beauharnais v. Illinois?

The movement for group libel laws declined for several reasons, as this Article explains. One reason was that many onetime advocates of hate speech laws became convinced that such laws could exacerbate the problems they sought to cure. Laws prohibiting speech that incited racial or religious hatred could be used to censor the speech of minority groups, depriving them of free expression, a critical tool in the struggle for racial justice and equality. Prosecutions for group libel could backfire, generating further prejudice and providing hate groups a platform from which to broadcast their noxious views.

Another reason for the decline of the group libel law movement was an apparent reduction in hate groups after the Second World War, which made the passage of group libel laws seemingly less urgent. Government persecution of leftists during the postwar Red Scare made liberals who once supported group libel laws wary of official suppression of speech. Many former proponents of hate speech laws came to side with the American Civil Liberties Union, which argued that the best antidote to hate speech was not legal restriction but “more speech.”

This Article narrates the lost history of the first large-scale American movement for hate speech laws in the 1940s. Part I describes the antecedents of the movement--the efforts of civil rights groups before World War II to secure the passage of state and local group libel laws and the rise of organized opposition to such efforts. Part II explains the peak of the group libel law movement in the 1940s. As anti-Semitic and fascist propaganda proliferated in the U.S., the cause won the allegiance of well-known intellectuals and journalists as well as prominent union and civil rights leaders. The issue was debated vigorously in the national press and in other public forums. Pitting the values of equality and freedom of speech against each other, the group libel question polarized the liberal community and foreshadowed free speech conflicts of later generations.

Part III explains the decline of the movement in the late 1940s and the unfavorable reaction among former supporters of group libel laws to the Supreme Court's Beauharnais decision. As Part IV explains, by the time calls for hate speech laws resurfaced in the 1980s, the campaigns of the 1940s had disappeared from the collective memory. Debates over hate speech laws in the late twentieth and twenty-first centuries have transpired without recognition of this earlier episode in which Americans considered, debated, and largely rejected liability for group defamation.

[. . .]

By 1965, the debate over group libel laws had all but “disappeared from view,” Harry Kalven Jr. noted. “The story is not a long one and seems to have come to a tranquil ending,” he wrote. Proposals for group libel laws were almost entirely absent from public and legal discourse in the 1960s. At the peak of social unrest in 1968, the New York Law Forum noted that “the problem of group defamation may nevertheless soon come to be seen with an urgency not heretofore attached to it .... [because] the American nation is rapidly moving into the status of two societies. In the process race defamation--from both sides of the black-white division--is becoming more prevalent.” It anticipated “what well may become an accelerating demand for legal remedies for race defamation.”

That “accelerating demand” did not come to pass for more than a decade, however. In the 1960s, the Supreme Court expanded free speech protections under the First Amendment, and public opinion favored expressive freedoms, amid civil rights and countercultural protest movements. Almost no scholarly articles were published on group libel in the 1960s. One obscure 1964 article from the Cleveland Marshall Law Review presaged the discussion of hate speech laws that would take place two decades later. The authors pointed to the increasing judicial acceptance of tort remedies for emotional distress and suggested their potential applicability to injuries caused by group defamation or hate speech: “Existent in our present laws is a legal concept which recognizes mental injury. Its value for group defamation litigation is untested, but it contains the metal for forging a powerful weapon.” The authors proposed a tort action in which victims of hate speech could receive damages for emotional distress, noting that hate speech could produce a range of emotional, psychological, and physical harms.

In 1974, political scientist Hadley Arkes noted in an article in the Supreme Court Review that:

Since the 1930s and 1940s, when fascist organizations were engaged in the systematic defamation of racial and religious groups, the interest in group libel statutes has declined markedly .... Indeed, the concept of group libel itself seems to have fallen into disfavor among legal scholars. To put it mildly, it is not treated any longer with the same plausibility or even esteem that it held in the 1940s.

That changed in the 1980s with the revival of calls for group defamation laws, framed as “hate speech” laws.

Advocates of hate speech laws suggested that the expansion of First Amendment protections in the 1960s and '70s and more permissive social attitudes toward free expression had not remedied social inequalities but may have exacerbated them. Starting in the late 1970s, activists called for civil and criminal actions against pornographers on the theory that pornography was not constitutionally protected speech and that criminal and civil penalties for pornography would reduce the incidence of sexual violence. An increase in racist incidents on college campuses in the 1980s led universities to attempt to restrict racist expression through campus speech codes. In 1991, Professor Robert Post observed that “the past few years have witnessed an extraordinary spate of articles analyzing the constitutionality of restrictions on racist speech.” Never before in the previous fifty years had there been such strong cultural support for punishing offensive speech.

In contrast to the group libel debate of the 1940s, these discussions focused less on the social unrest caused by group defamation and more on the psychic and emotional harms that group defamation caused to individual members of minority groups. In a groundbreaking law review article in 1982, Professor Richard Delgado recognized the dignitary harms of racist speech and suggested a tort remedy for injuries caused by racist hate speech. Popular and academic literature forwarded similar proposals, often referencing the decision in Beauharnais v. Illinois for the constitutional validity of such regulations.

These calls for hate speech laws took place against the backdrop of notable federal court rulings declaring hate speech to be protected expression, including the 1977 Skokie case, in which the courts held demonstrations by neo-Nazis to be protected by the First Amendment, and the Supreme Court's 1992 decision in R.A.V. v. St. Paul, declaring that a municipal hate speech law that banned “fighting words” based on race, religion, or gender amounted to a form of content or viewpoint discrimination. Notably, none of these calls for hate speech laws referenced the earlier group libel debates. By the 1980s, the group defamation campaigns of the World War II-era had disappeared from the collective memory.

The twenty-first century has seen an increase in calls for restrictions on hate speech in response to the disturbing speech environment created by the internet. Our unhappy experience with the internet and social media has demonstrated that “more speech” and counter-speech may not be effective in eradicating prejudice and eliminating hate groups, as tragic incidents in Charlottesville, Buffalo, and elsewhere have shown. These calls to revisit the American position on hate speech laws are timely and important. Those efforts should grapple with the history of hate speech law as illustrated in this Article.

The debate over legal restraints on group libel or hate speech dates back more than eighty years, as this Article has demonstrated. In the 1940s, at the height of racist and anti-Semitic prejudice and violence during the Second World War, thoughtful commentators studied proposals for group libel laws and deemed them practically ineffective as a remedy for hatred and discrimination. Group libel prosecutions could increase public attention given to bigots and provide a platform for hate groups to air their views. Group libel laws could be wielded against minority groups which required free expression to convey their messages to the public.

In the 1940s and '50s, legislators, civil rights advocates, and members of the general public considered and rejected a panoply of group libel proposals. McCarthyism and other ideological persecution of minorities during the Red Scare provided a stark reminder of how viewpoint-based restrictions could be used to quash the expression of unpopular groups. Leading civil rights groups, including the NAACP, rejected group libel laws, believing that civil rights could only be achieved through the protection of rights of individual expression. The historic advances of the civil rights movement were made possible by the Warren Court's protections for freedoms of speech, press, and assembly. By the 1960s, law and public opinion had reached a broad consensus that free expression and freedom of discussion were powerful and effective weapons in the battle against intolerance. Our ongoing discussions of the wisdom and efficacy of hate speech laws should consider these perspectives from the past.

Professor of Law, University at Buffalo School of Law.