Group libel statutes pose uniquely difficult issues, for they produce a clash between two constitutional commitments: to equality and to freedom of speech. Such laws impose punishments on the defamation of racial, ethnic, or religious groups. Group libel statutes were first enacted following world war ii. It was widely believed that the Nazis had come to power in Germany by means of systematic calumny of their opponents and of Jews and other groups that might serve as scapegoats. Group libel statutes were enacted to afford remedies for defamation, to prevent breaches of the peace, and ultimately to protect democracy against totalitarianism. On the other hand, as the Supreme Court stated in new york times co. v. sullivan (1964), the first amendment manifests "a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open." Group libel statutes test that commitment.
The Court purported to settle the question in beauharnais v. illinois (1952). A deeply divided Court upheld an Illinois group libel statute by resort to constitutional premises that have been substantially eroded by subsequent decisions. Although the continuing force of Beauharnais as a precedent is subject to serious doubt, it has not been overruled and was cited by the Court with seeming approval in New York v. Ferber (1982).
Beauharnais had been convicted for circulating a leaflet calling on officials in Chicago "to halt the further encroachment, harassment and invasion of white people, their property, neighborhoods, and persons, by the Negro." Calling upon white people to unite, Beauharnais's leaflet counseled that "if persuasion and the need to prevent the white race from becoming mongrelized by the Negro will not unite us, then the … rapes, robberies, knives, guns and marijuana of the Negro surely will."
One of the dissenting Justices, william o. douglas, found it an easy case. In his view, if the "plain command of the First Amendment was to be overridden, the state was required to show that "the peril of speech" was "clear and present."
Justice felix frankfurter, writing for the Court's majority, found it unnecessary to consider any clear and present danger test; libel, he said, is beneath First Amendment protection. Given the history of racial violence in Illinois, he argued, the legislature was not "without reason" in concluding that expressions like Beauharnais's had contributed to the violence and should be curbed.
In dissent, Justice hugo l. black challenged the Court's equation of group libel and ordinary libel. He suggested that the limited scope of libel assured that it applied to "nothing more than purely private feuds." The move from libel to group libel, he declared, was a move "to punish discussion of matters of public concern" and "a corresponding invasion of the area dedicated to free expression by the First Amendment."
Although Justice Black's characterization of the law of libel exaggerated its limits, constitutional developments since Beauharnais strongly support his general perspective. In New York Times Co. v. Sullivan the Court ruled that despite prior history, fresh assessment of the First Amendment yielded the conclusion that some libel was indeed within the scope of First Amendment protection. In a trail of decisions from Sullivan to gertz v. robert welch, inc. (1974), the Court concluded that the First Amendment afforded some protection for a broad range of defamatory material. The driving force behind this constitutionalization of the tort of defamation was Sullivan's recognition of the First Amendment's commitment to uninhibited debate; moreover, the profound First Amendment importance of expression on public issues has been echoed in many subsequent opinions.
Sullivan and its successor decisions undermine the premises of Beauharnais. No Justice today could write an opinion saying that because libel is beneath First Amendment protection, so is group libel. First, most libel is clearly entitled to some measure of First Amendment protection. Second, putting group libel aside, if some libel remains entirely outside the First Amendment's scope, it would be speech of a private or commercial character. Justice Black's point that the move from libel to group libel is a move from the private sphere to the public sphere describes today's doctrine more accurately than it described the doctrine of 1952.
Another reason to doubt Beauharnais' s continuing vitality is the Court's statement in Gertz v. Robert Welch, Inc. that "under our Constitution, there is no such thing as a false idea." That expression has generally been interpreted to mean that opinions are immune from any imposition of liability based on their asserted falsity. Although the line between fact and opinion is hard to draw, and although some group libel contains false assertions of fact, the sting of most group libel comes from unverifiable opinions. For example, what evidence could have proved the "truth" of Beauharnais's pejorative comments about black Americans? A separate issue is whether it is desirable for American trials to be conducted about the truth or falsity of various pejorative statements about ethnic groups. In the case of religious groups, the legal resolution of such questions could pose serious issues under the religion clauses of the First Amendment.
If group libel statutes are to find constitutional refuge, the necessary constitutional principles will have to be found beyond the defamation decisions. A growing body of opinions resonate with the theme of Paris Adult Theatre v. Slaton (1973) pronouncing the right to maintain "a decent society." From Young v. American-Mini Theatres, Inc. (1976) to federal communications commission v. pacifica foundation (1978) and a series of dissents in decisions involving fighting words, there is support for arguments based on concepts of civility, decency, and dignity. Whether or not these arguments succeed in validating group libel statutes, the conflict between public morality and freedom of speech will persist as an abiding theme of constitutional law.
Arkes, Hadley 1974 Civility and the Restriction of Speech: Rediscovering the Defamation of Groups. Supreme Court Review 1974:281–335.
Kalven, Harry, Jr. 1965 The Negro and the First Amendment. Columbus: Ohio State University Press.