Group Libel Laws
GROUP LIBEL LAWS
GROUP LIBEL LAWS. Otherwise known as hate speech laws or codes, group libel laws penalize speech or other communication that attacks or defames a particular group on the basis of its race, ethnicity, gender, sexual orientation, religion, or other such characteristic. These laws are typically based on the belief that group libel, particularly against groups that suffer from social prejudice and discrimination, cements the groups' subordinated status, helps create a social climate that encourages violence against the group, and causes the targeted group to curtail its own speech.
These statutes and codes, when enacted by govern-mental bodies or public institutions such as public universities, raise serious First Amendment issues. Since the speech is categorized and penalized because of its content, the statutes must overcome the general constitutional presumption against content-based restrictions on speech. Nevertheless, in Beauharnais v. Illinois (1952), the U.S. Supreme Court narrowly upheld the constitutionality of a state statute criminalizing the libel of a group of citizens. The Court said that, like "fighting words" (words that would cause the average addressee to fight), libel against individuals or groups was not within a constitutionally protected category of speech.
While Beauharnais has never been expressly over-ruled, a number of cases have so weakened its rationale that its holding would not likely survive if tested. Indeed, in R.A.V. v. City of St. Paul (1992), the Court struck down a local ordinance that made it a crime to place on public or private property a symbol or object likely to arouse "anger, alarm, or resentment …on the basis of race, color, creed, religion, or gender." The defendant had been charged under the ordinance after burning a cross in the yard of an African American family. Even though the "speech" at issue fell into the analytical category of "fighting words," which the Court had previously maintained was of low constitutional value, the Court held that the ordinance was viewpoint based and thus on its face unconstitutional. R.A.V. thus suggests that group libel laws and hate speech codes will fail constitutional attack, absent some special context that would allow the speech restriction to satisfy strict scrutiny.
Freedman, Monroe H., and Eric M. Freedman, eds. Group Defamation and Freedom of Speech. Westport, Conn.: Greenwood Press, 1995.
Matsuda, Mari. "Public Response to Racist Speech: Considering the Victim's Story." Michigan Law Review 87 (1989): 2357–2381.
Sunstein, Cass R. Democracy and the Problem of Free Speech. New York: Free Press, 1993.