A Perfect Storm: Race, Ethnicity, Hate Speech, Libel and First Amendment Jurisprudence
By
By
Michael J. Cole[1]*
Consider this hypothetical: A state legislature, hoping to protect minority groups from negative ethnic and racially motivated speech, passes a state statute that creates a cause of action for “group libel.” Under this hypothetical statute, an individual could bring suit against any person who spreads or publicizes racist or xenophobic ideologies.
This Article explores the policy implications and validity of such a statute by focusing on the intersection of critical race theory, First Amendment free speech jurisprudence, and defamation law. This Article analyzes whether such a statute could survive a First Amendment freedom of speech challenge. It also explores the normative policy implications that may persuade a court in deciding whether hate speech utterances should constitute group libel in a manner consistent with the First Amendment. It then provides a roadmap for the legal arguments that would likely apply.
In addressing these arguments, the Article provides examples of statutory language that a state legislature could use to attempt to comport with First Amendment requirements and overcome an overbreadth challenge. Despite any such efforts, the application of First Amendment jurisprudence would still likely reveal various infirmities in such a statute that could result in it being struck down. The likelihood of such an outcome reveals, from a legal realism perspective, inherent flaws in our norms and doctrines that fail to adequately reflect the inequities of institutional racism and xenophobia as well as the harmful and insidious impact of hate speech.
Consider this hypothetical: A state legislature, hoping to protect minority groups from negative ethnic and racially motivated speech, passes a state statute that creates a cause of action for “group libel.” Under this hypothetical law, an individual could bring suit against any person who spreads or publicizes racist or xenophobic ideologies.
This Article explores the policy implications and validity of such a law by focusing on the intersection of critical race theory,[2] First Amendment free speech jurisprudence, and defamation law. This Article analyzes whether such a statute could survive a First Amendment freedom of speech challenge. It also explores the normative policy implications that may persuade a court in deciding whether hate speech utterances should constitute group libel in a manner consistent with the First Amendment. It then provides a roadmap for the legal arguments that would likely apply.
In addressing these arguments, the Article provides examples of statutory language that a state legislature could use to attempt to comport with First Amendment requirements and overcome an overbreadth challenge. Despite any such efforts, as discussed infra, the application of First Amendment jurisprudence would still likely reveal various infirmities in such a statute that could result in it being struck down. The likelihood of such an outcome reveals, from a legal realism perspective,[3] inherent flaws in our norms and doctrines that fail to adequately reflect the inequities of institutional racism and xenophobia as well as the harmful and insidious impact of hate speech.
Throughout U.S. history, our society—predominantly white and American born—has used hate speech as a deadly weapon against ethnic and racial minorities, and this reality still exists today.[4] One particularly egregious example is the use of harmful racial propaganda against African Americans, which has created a legacy of racial inequality in the U.S.[5] This propaganda fueled the institution of slavery in the antebellum South, as well as state segregation statutes and lynching during the Reconstruction and post-Reconstruction periods; in modern times, such propaganda reinforces racial profiling by police officers and housing and employment discrimination.[6]
Following 1877, during the post-Reconstruction Jim Crow Era and Civil Rights Movement, hate groups—such as the Ku Klux Klan—would often espouse inflammatory, hateful language and racist ideologies to incite violent mobs to lynch and murder African American victims.[7] Largely marginalized from modern mainstream discourse, hate groups increasingly use the Internet and social media to recruit new members and regain national influence, with hate-related websites increasing rapidly.[8] Disturbingly, the Southern Poverty Law Center has reported a recent trend of nation-wide resurgence in hate group activity, often emboldened by the divisive rhetoric perpetuated by former President Donald J. Trump and other high profile politicians and public figures.[9]
Law professor Jeremy Waldron argues that “hate speech undermines . . . the public good” of the assurance of security “by intimating discrimination and violence” and by “reawakening living nightmares” of what previous societies have been like.[10] It poses an “environmental threat to social peace, a sort of slow-acting poison,” producing its effects over years.[11] From the perspective of members of the targeted groups, hate speech “sets out to make the establishment and upholding of their dignity” much harder.[12] As such, a prohibition against such hate speech helps to ensure the maintenance of social peace and civic order.[13]
To help attain this goal, states may want to consider enacting group libel statutes that provide members of targeted groups the ability to sue any person who spreads or publicizes overt racist or xenophobic ideologies.[14] Although questions may exist as to the necessity or wisdom of this approach, they can be rebutted. One might argue, for instance, that defamatory statements (as with fighting words or words that inflict intentional emotional distress) already fall under existing tort doctrine.[15] This begs the question of whether a hate-speech code is necessary. Typically, however, the common-law tort of libel has not been extended by courts to protect the reputation of large groups,[16] which leaves the door open for state legislative action. The act of codifying hate speech as libel may also provide the benefit of further deterring people from uttering it—i.e., people may be more discouraged from uttering hate speech if a legislature condemned it through a public pronouncement of law (especially because people might view the law as more legitimate if created by a democratically elected governmental body reflecting the will of the people). This focus on deterrence has support in the Supreme Court’s free speech precedent. In Beauharnais v. Illinois, the Court held that the discouragement of hate speech was a legitimate state interest supporting the constitutionality of the state’s enactment of a criminal hate speech group libel code.[17] Codifying hate speech as group libel would also meet the desirable goal of giving clear and fair notice to the public of what the law proscribes.[18]
A statutory approach would also further the goal of the states serving as “laboratories of democracy.” The “state laboratories” principle was articulated by Justice Brandeis in New State Ice Co. v. Liebmann.[19] In his dissent, he described how “a single[,] courageous state may, if its citizens choose, serve as a laboratory[] and try novel social and economic experiments without risk to the rest of the country.”[20] When any one or more of those experimental policies are successful, they are often expanded to the national level by acts of Congress.[21] A similar federal expansion could occur if a state passes a civil race defamation statute that proves successful—and if not, the state has simply tried an “experiment” without imposing any risk to the rest of the country.
Regardless, such a statute—even one grounded in civil as opposed to criminal law—would almost certainly face stiff legal opposition, including in the form of constitutional challenges. Free speech advocates may argue that the Court should strike down such a law because it would have a chilling effect on content-based political speech and controversial viewpoints. As the argument goes, this could set the stage for the government to silence citizens who speak out against it—a slippery slope.[22] Put differently, any prohibition on hate speech could be susceptible to authoritarian abuse.
A prohibition on hate speech could also be used to backfire on minorities.[23] For instance, many forms of rap or other urban music and inspirational or political speeches speaking out against racism could effectively be silenced under a group libel law if a judge or jury were to perceive the statements as disparaging against whites or other races.[24]
Free speech absolutists may further argue that our society is built upon a marketplace of ideas, in which people, rather than the government, should decide what constitutes acceptable speech.[25] Under this familiar theory, the public acts to morally condemn racist speech, rendering government action unnecessary.[26] One illustrative example is the protest against the anti-Jewish Ku Klux Klan rally in Skokie, Illinois, which arguably rendered government intervention against hate speech unnecessary.[27]
These arguments, however, incorrectly presuppose that the public will always condemn hate speech. This assumption, in turn, relies on a false premise—that all racial groups enjoy equal opportunity to communicate their messages to the public. According to Professor Richard Delgado, the marketplace of ideas paradigm rests upon the incorrect premise that our society distributes social power and resources even-handedly to all groups.[28] In reality, however, many racial and ethnic minority groups often do not possess the financial means or social and political capital to influence public opinion against hate speech to the degree that their white counterparts do (i.e., the cards are stacked against most minorities).[29] Even when civil rights leaders, such as Rev. Jesse Jackson or Rev. Al Sharpton, speak out against racism and hate speech, they are often silenced and considered extremists by the media and society at-large.[30] Delgado explains that “communication is expensive, so the poor are often excluded; the dominant paradigm renders certain ideas unsayable or incomprehensible; and our system of ideas and images construes certain people to have little credibility in the eyes of listeners.”[31] Thus, from a legal realism perspective, the marketplace of ideas theory ignores the reality of the status quo and the structural inequities of institutional racism.[32] Civil rights advocates may also argue that the impact of any “chilling effect” on people’s free speech rights is overstated. A helpful example is Germany’s criminal prohibition on the use of swastikas and other symbols of hate in response to the atrocities committed during the Holocaust.[33] Despite this prohibition, Germany’s democratic system is “remarkably stable,” which suggests that the prohibition has caused little to no undue “chilling effect” on the German people’s general comfort or ability to otherwise express their beliefs.[34] Even assuming that, due to cultural and structural differences in the U.S., some “chilling effect” on freedom of expression occurs, some may argue it is necessary to prevent the “deep emotional scarring, and feelings of anxiety and fear that pervade every aspect of a [hate speech] victim’s life.”[35] Many victims of hate speech and propaganda have “experienced physiological and emotional symptoms ranging from rapid pulse rate and difficulty in breathing, to nightmares, post-traumatic stress disorder, psychosis and suicide.”[36] Avoiding such severe harm on vulnerable people may justify some limited chilling effect on those that would otherwise desire to express feelings of toxic racism and hatred.
These competing policy arguments all come into play when deciding the legal issue of whether a group libel statute for racial or ethnic defamation, if enacted, would satisfy constitutional muster under the First Amendment’s Free Speech Clause. Understanding these issues, however, requires some familiarity with the intersection of the Free Speech Clause and the state common law of defamation.
The common law of defamation protects a person’s reputation and good name against communications that are false and derogatory.[37] Defamation consists of two torts: libel and slander.[38] The main difference between the two is the form in which the defamation occurs. Libel consists of any defamation that can be seen, most typically in writing or pictures.[39] Slander consists of oral defamatory communications that can be heard.[40] The elements of libel and slander are nearly identical to one another. To prevail, a plaintiff must generally show “that a defendant has made (i) a public statement that is (ii) false and (iii) may diminish the plaintiff’s reputation.”[41]
This framework has been applied to group libel settings involving hate speech in Beauharnais v. Illinois.[42] Subsequent cases have called into question whether Beauharnais is still good law[43]—although none have expressly overruled Beauharnais.
Counterbalancing the need to protect a person’s reputation is the need to protect freedom of speech. To meet this end, “[t]he Free Speech Clause of the First Amendment prohibits the government from ‘abridging the freedom of speech’”—although it does not expressly “define what that freedom entails.”[44] The Court has long construed this Clause to “protect against government regulation of certain core areas of ‘protected’ speech (including some forms of expressive conduct) while granting the government greater leeway to regulate other types of speech—including a handful of limited categories that the Court has deemed largely ‘unprotected.’”[45]
Despite this framework for free speech, the Court’s “current approach” is “not entirely categorical,” which is consistent with legal theorists’ more modern rejection of Classical formalism.[46] Nonetheless, “identifying the category of speech at issue,” e.g., defamation, commercial speech, or obscenity, is an “important” (if not somewhat formulaic)[47] “step in determining what First Amendment standards, including what level of judicial scrutiny, a court might apply to the law” being challenged.[48] For instance, “[r]egulations of protected speech generally receive strict or intermediate scrutiny, which are high bars for the government to meet,” whereas “the government typically has more leeway to regulate unprotected speech.”[49] Thus, determining “the category of speech” remains a crticial step “in evaluating Congress’s ability to legislate on a given subject.”[50]
Generally speaking, “content-based restrictions on speech—laws that ‘appl[y] to particular speech because of the topic discussed or the idea or message expressed’—are presumptively unconstitutional and subject to strict scrutiny.”[51] At the safme time, the Court has “recognized limited categories of speech that the government may regulate because of their content, as long as it does so evenhandedly.”[52] The Court has “identifie[d] these categories as . . . obscenity, fraud, incitement, fighting words, true threats, speech integral to criminal conduct, child pornography,” and, relevantly here, “defamation.”[53] These categories’ parameters “have changed over time, with many having been significantly narrowed by the Court.”[54] Additionally, the Supreme Court under Chief Justice Roberts has been “disinclined to expand upon this list,” and has relied on “theories of textualism and originalism” to decline to “recognize, for example, violent entertainment or depictions of animal cruelty as new categories of unprotected speech.”[55]
Despite holding that defamatory statements enjoy less constitutional protection, “the Court has also recognized” that imposing “civil or criminal penalties for making [defamatory] . . . statements might [unduly] hamper free speech.”[56] As such, as discussed below, “the First Amendment requires a party alleging defamation to demonstrate that the speaker acted with a certain level of intent,” such as “in cases where the statement concerns a public official or figure[,] . . . or to prove certain injuries.”[57]
As stated above, this Article offers examples of language that a state legislature may use in drafting a statute that classifies blatant hate speech as group libel while attempting to comport with First Amendment analysis to overcome an overbreadth challenge. The relevant jurisprudence, however, would likely reveal various infirmities in the statute. This analysis reveals various flaws in our norms and doctrines that improperly deemphasize the inequities of the status quo, the insidious impact of hate speech, and the realities of institutional racism and xenophobia.
Below is some hypothetical language that can be used in a group libel statute creating a cause of action for hate speech:
Any person shall have a cause of action to sue for group libel if any person, or firm or corporation, manufactures, sells, or offers for sale, advertises or publishes, presents or exhibits in any public place or medium any website, television show, film, radio show, play, drama or sketch, which publication or exhibition portrays depravity, criminality, unchastity, inferiority, or lack of virtue of a class of citizens, of any race or ethnic origin, which said publication or exhibition exposes the members of any race or ethnic origin to contempt, derision, or obloquy, provided that plaintiff is a member of such group defamed.
This language is adopted partially from the Illinois group libel statute cited in Beauharnais.[58] In that case, the Court upheld a conviction of a white supremacist for committing group libel against African Americans. The defendant allegedly violated a criminal statute by distributing anti-black leaflets advocating for housing segregation. The leaflets called for city politicians “to halt the further encroachment, harassment and invasion of white people, their property, neighborhoods and persons, by the Negro.”[59] They urged “one million self respecting white people in Chicago to unite.”[60] They added that “[i]f persuasion and the need to prevent the white race from becoming mongrelized by the negro will not unite us, then the aggressions . . . rapes, robberies, knives, guns and marijuana of the negro, surely will.”[61] Based on these statements, the jury convicted the white supremacist for violating the group libel code. The conviction was upheld by the Supreme Court.
Applying this decision, a plaintiff could potentially sue someone for civil damages for posting racist hate speech on social media or other internet or media outlets. In doing so, the plaintiff could argue that Beauharnais was a criminal case and that the present scenario involves civil litigation matters, so an even lesser threat of authoritarian abuse or “chilling effect”[62] on free speech would exist if civil damages were to be imposed here. This is because no threat of loss of life or liberty exists the way it would in a criminal proceeding, mitigating or reducing any such chilling effect. However, the plaintiff would still have many challenging legal hurdles to overcome under the First Amendment. As stated above, many subsequent cases have called into question whether Beauharnais is still good law—although none have explicitly overruled it.[63]
There appear to be two primary methods in which a litigant could challenge Beauharnais and, more importantly, any group libel statute covering hate speech. First, a defendant might raise the Free Speech Clause as a defense if a plaintiff brings a libel cause of action against him. Alternatively, a litigant need not wait until a plaintiff attempts to file suit in order to raise a challenge to the statute and its underlying caselaw; as a second option, one might go on the offensive and bring a constitutional challenge under the Declaratory Judgment Act without being sued.[64] In either scenario, assuming a justiciable case or controversy exists under Article III,[65] a court would need to decide whether the statute comports with First Amendment requirements.
In deciding the statute’s constitutionality under the First Amendment, the Court would need to resolve several questions. The first question is whether the present hypothetical scenario differs in any material way from the Court’s reasoning and the legislative intent surrounding the criminal code in Beauharnais. The answer is “yes.”
In Beauharnais, the state legislature explicitly intended for the code to prevent the occurrence or continuation of racial violence.[66] Recall that the defendant had violated a criminal statute by distributing anti-black leaflets characterizing black people as generally committing “aggressions,” carrying “guns” and committing crimes including “rapes” and “robberies.”[67] In upholding the defendant’s conviction under the hate speech code, the Court applied rational basis review and found that the code was rationally related to meeting the state’s legitimate interest in banning hate speech and preventing any resulting violence. The Court noted that the Illinois code expressly intended to prohibit hate speech that “[wa]s productive of breach of the peace or riots.”[68] Taking into account the long-standing history of racial tensions in Illinois,[69] the Court held that the state code was rationally related to the legitimate interest in banning disparaging hate speech and preventing violent racial incidents from occurring.
By contrast, the hypothetical group libel statute here exists to protect the collective reputation and dignity of racial and ethnic minorities but does not contain any language addressing violence. To be consistent with Beauharnais, therefore, a state legislature would likely need to draft the group libel statute to include language addressing the prevention of race riots. Below is an example of such statutory language:
Any person shall have the right to sue for group libel if any person, or firm or corporation, manufactures, sells, or offers for sale, advertises or publishes, presents or exhibits in any public place or medium any website, television show, film, radio show, play, drama or sketch, which publication or exhibition portrays depravity, criminality, unchastity, inferiority, or lack of virtue of a class of citizens, of any race or ethnic origin, which said publication or exhibition exposes the members of any race or ethnic origin to contempt, derision, or obloquy, or which is productive of breach of the peace or riots, provided that plaintiff is a member of such group defamed.
If a court were to hold a white supremacist group or individual liable under this statute, say, for creating an Aryan Nations website proclaiming that black men carrying guns are more likely to assault white women, which is a historically common racist stereotype,[70] such statutory liability may be consistent with the reasoning of Beauharnais. Here, the statute would classify the group libel statements as those that may enflame racial hatred and incite violence or lead to a “breach of the peace.”[71]
Although lynching and riots are not as prevalent as they have been throughout earlier history, they can and often do still result from provocative racist comments.[72] One only needs to look at recent events—such as the heated racial protests and demonstrations leading a woman’s death in Charlottesville, Virginia, during August of 2017—to see that race still serves as an emotional issue today for many people, and that violent reactions may very well flare up from the use of blatantly offensive and inflammatory symbols and remarks of hatred.[73]
Unfortunately for civil rights advocates, many hurdles still exist. As stated above, many experts believe that Beauharnais has little continuing vitality as precedent.[74] Although the case was never overruled, subsequent decisions, discussed below, have placed severe limitations on its scope.[75] This creates an uphill battle for civil rights attorneys arguing that the Court should uphold a group libel statute that covers hate speech.
An attorney advocating for free speech may argue that the group libel statute, as written above, conflicts with Brandenburg v. Ohio, especially to the extent that it covers hate speech on the Internet, because any resulting breach of the peace would need to be “imminent.” In Brandenburg, the Court struck down a criminal code that prohibited people from advocating for unlawful action.[76] The lower court convicted a Klansman for violating the code because he, along with approximately twelve other hooded Klan members armed with guns, gathered to burn a cross and made general statements denouncing blacks and Jews. The speeches advocated for minority deportation and called for “revengeance” against the government for failing to uphold white supremacy.[77]
The Supreme Court reversed the lower court’s conviction and invalidated the statute. The Court relied on the fact that the Klansman had not intended to incite imminent lawless action, and it reasoned that such imminent action was unlikely to occur.[78] The Court concluded that the statute, as applied, constituted an undue burden on political speech.[79]
A free speech attorney could argue that the current hypothetical group libel statute covering hate speech “which is productive of breach of the peace or riots”[80] is limited in scope by Brandenburg. Beauharnais required hate speech to create the potential for violence—not an imminent threat. As such, the holding of Beauharnais could be seen as in conflict with, or narrowed by, Brandenburg to require that a breach of peace or riots be “imminent.”
To counter this argument, one might attempt to distinguish Brandenburg on the grounds that it involved a criminal code—as opposed to the present hypothetical scenario, which involves a civil statute.[81] As such, arguably a far lesser chilling effect on free speech exists here than it did in Brandenburg. Furthermore, in Brandenburg, the Court did not deal with the category of unprotected speech of libel but instead dealt with the wholly distinct category of advocacy of unlawful action.[82] One might argue that in emphasizing the category of speech to such a degree, one risks reliance on an overly rigid and formalistic approach to analyzing free speech jurisprudence. This overstates the case and misses the point. Defamatory statements carry their own unique set of concerns, such as the need to protect one’s reputation from being tarnished. This same reputational concern applies with even greater force to defamatory racial and ethnic hate speech—due to the perpetuation of false negative stereotypes—which can lead to harmful consequences on minority groups collectively speaking, as well as on individuals who may experience discrimination and racial police profiling as a result of the proliferation of defamatory hate speech. By allowing hate speech to occur, society normalizes such beliefs, which emboldens people to commit harmful actions that are consistent with them.[83] Equity and legal realism principles therefore weigh in favor of the Court acknowledging these compelling circumstances and limiting the scope of Brandenburg. Despite these arguments, however, the reality remains that Brandenburg would make it very challenging in most scenarios for a group libel statute covering hate speech to pass constitutional muster.
Even if the Court decides to distinguish or limit Brandenburg, however, it would still need to contend with additional cases in tension with a group libel statute covering hate speech. Many law review articles and circuit courts, for example, have interpreted the Court’s decision in New York Times v. Sullivan to severely limit the scope of Beauharnais.[84]
In Sullivan, the Court struck down an Alabama tort statute that the state court applied in finding a defendant “libelous per se” upon a jury finding of a defendant publishing defamatory material concerning a plaintiff.[85] Several African American clergymen ran a full-page advertisement in The New York Times, accusing a police chief of intimidating black student-protestors with weapons, padlocking their dining hall, and expelling them.[86] The advertisement also implied the police assaulted Martin Luther King Jr., bombed his house, and falsely arrested him seven times.[87] Several of the statements were either false or misleading.[88]
Consequently, the police chief sued The New York Times for presumed injuries used by the false statements. The jury found the newspaper liable and awarded the police chief $500,000.[89] However, the Supreme Court reversed the lower court judgment, holding that a “public official” cannot prevail in a libel action concerning a “public issue” unless the plaintiff can prove that the defendant’s speech was motivated by “actual malice.”[90]
The Court held that “actual malice” exists when a defendant either knows that a defamatory statement is actually false, or acts with “reckless disregard” for its truth.[91] It reasoned that while there was evidence demonstrating that the Times had “published [its] . . . advertisement without checking its accuracy,” the Times “relied upon [its] knowledge of the good reputation of many of those whose names were listed as sponsors of the advertisement” in deciding to publish the advertisement.[92] While the Court found this to constitute negligence, it held that this failed to prove the higher threshold of actual malice in order to collect any damages.[93] The Court reasoned that any less of a standard would create a “chilling effect” of self-censorship for publications to criticize public officials on matters of public concern.[94]
Circuit court cases, such as Collin v. Smith[95] and American Booksellers Ass’n v. Hudnut,[96] have interpreted Sullivan as severely undermining Beauharnias. The majority in American Booksellers stated that “[i]n Collin v. Smith . . . we concluded that cases such as New York Times v. Sullivan had so washed away the foundations of Beauharnais that it could not be considered authoritative.”[97] Many legal scholars, including John H. Garvey and Frederick Schauer, concur.[98]
The Supreme Court, of course, is not bound by such assertions. A civil rights attorney could argue that the holding of Sullivan should be narrowly construed to apply only in scenarios involving statements concerning public figures or officials regarding matters of public concern. The Court in Sullivan did not indicate that free speech protections in libel cases extended beyond this.[99]
A civil rights advocate may further argue that Sullivan does not apply to the hypothetical race defamation statute here because a public figure would not exist. Instead, a lawsuit contemplated under the group libel statute would involve a private individual. The plaintiff defamed in Beauharnais only had a cause of action because of the private individuals injured by the hate speech at issue in that case.[100] As such, Sullivan does not overrule Beauharnais because no “public figures” are at issue here.[101]
Even if the Court agrees with this analysis, however, Gertz v. Welch raises additional questions about the constitutional viability of a group libel statute covering hate speech. Gertz went beyond the public figure requirements in Sullivan by requiring plaintiffs to prove actual malice to collect “punitive damages” when suing for libel on matters of “public concern”—even when no public figure existed.[102] In such “public concern” scenarios, the Court also gave the plaintiffs the option to prove a defendant’s “negligence” in order to obtain “provable damages.”[103]
Gertz’s applicability to matters of “public concern” places additional constraints on a state’s ability to create a cause of action for group libel based on racist or xenophobic hate speech. Hate speech is clearly a “public concern.” Furthermore, group libel is merely an extension of the individual libel addressed in Gertz. This is reinforced by Justice Frankfurter’s statement in Beauharnais, which acknowledged this extension:
[I]f an utterance directed at an individual may be the object of criminal sanctions, we cannot deny to a State power to punish the same utterance directed at a defined group, unless we can say that this is a wilful and purposeless restriction unrelated to the peace and well-being of the State.[104]
Thus, Gertz’s limitations on a plaintiff’s ability to collect damages apply to group libel settings.
In Gertz, the plaintiff brought an action against a newspaper for libel.[105] The plaintiff was a private individual. Because of this, the Court applied a less stringent test to allow for the collection of damages than it articulated in the public figure context in Sullivan.[106] According to the facts in Gertz, a policeman fatally shot a youth.[107] The state subsequently prosecuted and convicted the officer for murder.[108] Later, the youth’s family hired an attorney (the soon-to-be plaintiff) to sue the officer. A right-wing newspaper, American Opinion, published an article that falsely accused the family’s attorney of creating a left-wing Communist conspiracy to frame the officer.[109] In response, the attorney brought a libel suit against the publication.[110]
The Court held that this scenario involved a “public concern” but acknowledged that the family’s attorney had not held himself out to be a “public figure”—which would have triggered the need for the attorney to prove actual malice in order to collect any damages. Instead, the Court merely required the plaintiff to prove actual malice if he wanted to collect punitive or presumed damages—or, alternatively, the plaintiff could prove negligence and collect any actual, or provable, damages.[111]
The Court reasoned that protecting the reputations and privacy of private individuals outweighed the interest of maintaining the “marketplace of ideas.”[112] It emphasized that a private individual does not voluntarily enter the marketplace of ideas or consensually assume the risk of public scrutiny as does a public figure.[113] Furthermore, private individuals do not have the same access to the media to defend their reputations as do public figures, which triggers fairness concerns.[114] In any event, the Court, swayed by the need to protect individual privacy and reputation, remanded the case and instructed the lower court to determine whether the newspaper’s false report constituted actual malice or simply negligence, which would establish the type of damages the attorney could receive.[115]
In order to conform to the requirements of Gertz, therefore, the state legislature would have to draft the group libel statute covering hate speech with the following language:
Any person shall have the right to sue for group libel if any other person, or firm or corporation, manufactures, sells, or offers for sale, advertises or publishes, presents or exhibits in any public place or medium any website, television show, film, radio show, play, drama or sketch, which publication or exhibition portrays depravity, criminality, unchastity, inferiority, or lack of virtue of a class of citizens, of any race or ethnic origin, which said publication or exhibition exposes the citizens of any race or ethnic origin to contempt, derision, or obloquy, or which is productive of breach of the peace or riots, provided that plaintiff is a member of such group defamed and can prove actual malice to collect punitive or presumed damages or prove negligence to collect actual damages.
Applying this language, a plaintiff would face a difficult hurdle if he or she were to attempt to prove actual malice. A plaintiff could claim that the creator of an Aryan Nations or Ku Klux Klan website characterizing black men “as going around harassing and sexually assaulting white women” is acting with “reckless disregard for the truth,” which, as the reader will recall, is one way to prove actual malice. The Court, however, in St. Amant v. Thompson, imposed a very high bar to show “reckless disregard for the truth.”[116] It required a plaintiff to prove, by clear and convincing evidence, that a defendant entertained “serious doubts about the truth of his statements made.”[117] This test is subjective and contemplates good faith: the plaintiff must prove the defendant’s actual state of mind or raise compelling inferences about it. Both are extremely difficult tasks.
With that said, some jury members might experience shock from hearing such a blatantly racist statement described above. This shock, could, in turn, trigger their feelings of denial about anyone possibly being able to truly believe such blatantly offensive ideology. This, in turn, may conceivably cause some of them to rationalize that the defendant could not have genuinely believed such outrageous claims about minorities. Despite the harmful societal impacts of many white people psychologically denying the existence of racism against minorities,[118] this may, ironically, prove useful to a civil rights plaintiff under the subjective legal standard articulated in St. Amant. As stated above, the decision required a defendant to entertain “serious doubts about the truth of his statements.”[119] Relying on St. Amant, a plaintiff may attempt to argue that if the defendant could not have reasonably believed his racist rhetoric to be true, but that he stated it nonetheless, then he must have “entertained serious doubts about the truth of his statements,” helping the plaintiff to prevail.[120] Unfortunately, this argument would likely crumble in scenarios if a spokesperson of the hate groups were to be able to prove that he genuinely believed in the truth of his racist ideology.[121]
Alternatively, a plaintiff could argue that a defendant posting hate speech is acting with negligence. To meet this standard, a plaintiff would have to prove that a defendant failed to verify the truth of his statements.[122] A person stating that all black men carry guns and assault white women clearly constitutes a failure to verify the truth given the obvious lack of any credible evidence to support such a claim.
Many significant issues involving negligence, however, arise with damages. As stated above, a plaintiff asserting a negligence claim for libel can only collect actual, provable damages. One issue is whether, under this requirement, a group libel plaintiff would need to prove that the overall minority group targeted by the hate speech suffered injury from the speech. Arguably the answer is yes, because this would give meaning to the term “group libel” as well as the requirement of having to “prove actual damages.” However, a plaintiff may have a difficult time proving any concrete injuries—after all, how does one prove that an entire race or ethnic group suffered harm? One might ask whether any alternative legal approaches exist, consistent with the requirements of Gertz. The answer might be no. For example, if the courts were to make presumptions of generalized harm, as a matter of judicial notice of legislative facts, regarding the impact of hate speech, this would arguably negate the requirement of having to prove actual harm. In any event, these are all issues that would need to be resolved.
Furthermore, even if a plaintiff could establish the requisite harm as a matter of law, she would still need to prove a causal link between the harm and the hate speech.[123] It could be a very difficult task to prove that any individual utterance of hate speech contributed sufficiently to any injuries or disadvantage for minorities in society at large, to establish cause-in-fact or proximate cause, if the plaintiff is required to prove that an entire race or ethnic group suffered the harm.[124]
These issues of damages and causation raised by Gertz had not been antipicated by the Court in Beauharnais. Thus, Gertz implicitly overrules Beauharnais because the two cases conflict in practice—as it is well-settled that the courts will decline to uphold a decision that proves to be unworkable.[125] If the Court overrules Beauharnais, it would have to strike down any hypothetical group libel statute, as it would have no constitutional support without Beauharnais.
Even assuming that the Court upholds a negligence or actual malice theory, a defendant may argue that the Court should overrule Beauharnais (and therefore strike down the statute) because Beauharnais conflicts with R.A.V. v. City of St. Paul, in which the Court disallowed content-based restrictions of unprotected speech.[126]
In R.A.V., the Court invalidated a state criminal “fighting words” statute because it imposed a content-based restriction concerning race on speech. The defendant, a teenager, burned a cross in a black family’s yard. The state of Minnesota prosecuted him for violating a criminal ordinance prohibiting cross burning as disorderly conduct when a defendant “knows or has reasonable grounds to know [that such cross burning] arouses anger, alarm, or resentment in others on the basis of race, color, creed, religion or gender.”[127] The defendant moved to dismiss, contending that the ordinance on its face was content-based, and the trial court granted the motion. On appeal, the Minnesota Supreme Court reversed the dismissal. The Supreme Court, however, reversed the state supreme court and struck down the statute.
In doing so, the majority opinion, written by Justice Scalia, held that “government may not regulate [any form of unprotected speech] . . . based on hostility—or favoritism—towards the underlying message expressed.”[128] According to the Court, the criminal ordinance in question only banned certain forms of fighting words based on race and gender, but not other forms—such as words based on political affiliation.[129] The Court ruled that this was an unconstitutional content-based restriction on speech.[130]
Free speech advocates could argue that the Court should apply R.A.V. to the hypothetical statute and strike it down because it is also a content-based restriction, prohibiting group libel based only on race and ethnic origin. To avoid this outcome, the state legislature may attempt to redraft the statute to prohibit all forms of group libel. However, one could also argue that the statute comports with R.A.V. because it falls under an exception to the general rule, articulated by Justice Scalia in his majority opinion.
The majority held that a “valid basis for according differential treatment to even a content-defined subclass of proscribable speech” exists when “the subclass happens to be associated with particular secondary effects of the speech, so that the regulation is justified without reference to the content of the . . . speech.”[131] Furthermore, in City of Renton v. Playtime Theatres, Inc., the court held that such secondary effects do not have to constitute illegal action—the loss of quality of life is sufficient.[132]
Civil rights attorneys could take advantage of this exception. They could argue that racial violence could result from exposure to the hate speech, which is a “secondary effect” of the speech. This reality should justify the Court in upholding a content-based statute covering the hate speech based on race and ethnic origin. After all, if the Court is willing to allow states to prevent the occurrence of “secondary effects” that could decrease the quality of life for its citizens, then it should uphold a statute intended to prevent violence.[133]
The validity of designating hate speech as something that is likely to create the “secondary effect” of violence to fall within Scalia’s exception in Renton is reinforced by Professor Waldron’s opinion that “hate speech undermines . . . the public good” of the assurance of security “by intimating discrimination and violence.”[134] One only needs to look the heated racial demonstrations leading a woman’s death in Charlottesville, Virginia, to see an example of the impact on quality of life that hate speech can cause.[135] Thus, a group libel statute against such hate speech would help to ensure the maintenance of social peace and civic order. It should therefore fall within the scope of Renton, despite being a “content-based” restriction.[136]
Even if the Court were to conclude that the statute imposes an undue burden on free speech, anti-racist advocates could attempt to make the challenging argument that the statute meets strict scrutiny. In order to do so, they would need to persuade the Court that the state has a “compelling interest” in preventing hate speech.[137] Professor Thomas David Jones argues that this is true. He contends that race “defamation is a form of racial discrimination and foments social discord among racial groups in an ethnically plural society.”[138] He claims that a “no less restrictive alternative is available to control group defamation.”[139] It would be difficult for one to credibly deny that preventing social discord is a compelling state interest. Thus, this could be an argument for advocates to use. In the (however unlikely) event that a court agrees to adopt this argument, a plaintiff could prevail.[140]
As this analysis illustrates, civil rights supporters would face a variety of difficult constitutional hurdles in arguing for the Court to uphold a group libel statute covering defamatory hate speech.[141] From a legal realism perspective, this reveals various flaws in our norms and doctrines, which improperly deemphasize the inequities of institutional racism and xenophobia as well as the insidious impact of hate speech.[142]
Arguments to the contrary are unpersuasive. For example, free speech advocates may contend that education without any legal requirements is more appropriate for combating hate speech, and that allowing citizens to sue for overt race defamation may create resentment and backlash against minorities. Professor Jones disagrees, however, and argues that education, without accountability from the law, will fail to remedy the problem of racism, and that the “educative power of the law” would serve to end racist attitudes because people, in conforming to statutes prohibiting overt hate speech, would eventually adopt beliefs consistent with their actions.[143] In other words, the power of education and the force of law are inextricably linked here.
Jones, in his book Human Rights: Group Defamation, Freedom of Expression and the Law of Nations, quotes the World Jewish Congress, asserting that “laws . . . have themselves the character and purpose of social enlightenment and often prove to be the most effective means of education.”[144] By “condemning certain actions, laws not only hold out the threat of punishment to those who violate them, but set standards of decent human behavior, to which the citizen, in his social attitude, should conform.”[145] Therefore, “our society has a responsibility to apply this educative influence of the law in countering and combating racist propaganda.”[146]