Group Libel, Hate Speech.—In Beauharnais v. Illinois,1000 relying on dicta in past cases,1001 the Court upheld a state group libel law that made it unlawful to defame a race or class of people. The defendant had been convicted under this statute after he had distributed a leaflet, part of which was in the form of a petition to his city government, taking a hard-line white-supremacy position, and calling for action to keep African Americans out of white neighborhoods. Justice Frankfurter for the Court sustained the statute along the following reasoning. Libel of an individual, he established, was a common-law crime and was now made criminal by statute in every State in the Union. These laws raise no constitutional difficulty because libel is within that class of speech that is not protected by the First Amendment. If an utterance directed at an individual may be the object of criminal sanctions, then no good reason appears to deny a State the power to punish the same utterances when they are directed at a defined group, “unless we can say that this is a willful and purposeless restriction unrelated to the peace and well-being of the State.”1002 The Justice then reviewed the history of racial strife in Illinois to conclude that the legislature could reasonably fear substantial evils from unrestrained racial utterances. Neither did the Constitution require the State to accept a defense of truth, inasmuch as historically a defendant had to show not only truth but publication with good motives and for justifiable ends.1003 “Libelous utterances not being within the area of constitutionally protected speech, it is unnecessary . . . to consider the issues behind the phrase ‘clear and present danger.”'1004
1000 343 U.S. 250 (1952).
1001 Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942); Near v. Minnesota ex rel. Olson, 283 U.S. 697, 707-08 (1931).
1002 Beauharnais v. Illinois, 343 U.S. 250, 254-58 (1952).
1003 343 U.S. at 265-66.
1004 343 U.S. at 266.
Beauharnais has little continuing vitality as precedent. Its holding, premised in part on the categorical exclusion of defama-tory statements from First Amendment protection, has been substantially undercut by subsequent developments, not the least of which are the Court’s subjection of defamation law to First Amendment challenge and its ringing endorsement of “uninhibited, robust, and wide-open” debate on public issues in New York Times Co. v. Sullivan.1005 In R. A. V. v. City of St. Paul, the Court, in an opinion by Justice Scalia, explained and qualified the categorical exclusions for defamation, obscenity, and fighting words. These categories of speech are not “entirely invisible to the Constitution,” but instead “can, consistently with the First Amendment, be regulated because of their constitutionally proscribable content.”1006 Content discrimination unrelated to that “distinctively proscribable content” runs afoul of the First Amendment. Therefore, the city’s bias-motivated crime ordinance, interpreted as banning the use of fighting words known to offend on the basis of race, color, creed, religion, or gender, but not on such other possible bases as political affiliation, union membership, or homosexuality, was invalidated for its content discrimination. “The First Amendment does not permit [the city] to impose special prohibitions on those speakers who express views on disfavored subjects.”1007
In Virginia v. Black, the Court held that its opinion in R.A.V. did not make it unconstitutional for a state to prohibit burning a cross with the intent of intimidating any person or group of persons.138 Such a prohibition does not discriminate on the basis of a defendant’s beliefs—“as a factual matter it is not true that cross burners direct their intimidating conduct solely to racial or religious minorities. . .. The First Amendment permits Virginia to outlaw cross burning done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation. Instead of prohibiting all intimidating messages, Virginia may choose to regulate this subset of intimidating messages…”139
1005 376 U.S. 254 (1964). See also Collin v. Smith, 447 F. Supp. 676 (N.D. Ill.) (ordinances prohibiting distribution of materials containing racial slurs are unconstitutional), aff'd, 578 F.2d 1197 (7th Cir.), stay denied, 436 U.S. 953 (1978), cert. denied, 439 U.S. 916 (1978) (Justices Blackmun and Rehnquist dissenting on basis that Court should review case that is in “some tension” with Beauharnais). But see New York v. Ferber, 458 U.S. 747, 763 (1982) (obliquely citing Beauharnais with approval).
1006 505 U.S. 377, 383 (1992) (emphasis in original).
1007 505 U.S. at 391. On the other hand, the First Amendment does permit enhancement of a criminal penalty based on the defendant’s motive in selecting a victim of a particular race. Wisconsin v. Mitchell, 508 U.S. 476 (1993). The law has long recognized motive as a permissible element in sentencing, the Court noted. Id. at 485. R.A.V. was distinguished as involving a limitation on “speech” rather than conduct, and because the state might permissibly conclude that bias-inspired crimes inflict greater societal harm than do non-bias-inspired crimes (e.g., they are more likely to provoke retaliatory crimes). Id. at 487-88. See generally Laurence H. Tribe, The Mystery of Motive, Private and Public: Some Notes Inspired by the Problems of Hate Crime and Animal Sacrifice, 1993 SUP. CT. REV. 1.
138 538 U.S. 343 (2003). A plurality held, however, that a statute may not presume, from the fact that a defendant burned a cross, that he had an intent to intimidate. The state must prove that he did, as “a burning cross is not always intended to intimidate,” but may constitute a constitutionally protected expression of opinion. 538 U.S. at 365–66.
139 538 U.S. at 362–63.
Last modified: June 9, 2014