Waldron’s third chapter, “Why Call Hate Speech Group Libel?,” best explains his thesis. The chapter includes his most extensive discussion of Beauharnais v. Illinois, a 1952 Supreme Court decision. Waldron begins with a comment on why the term “hate speech” is somewhat misleading as a description of the category of expression that he would regulate: the term “hate” gives more emphasis to the motive of the speaker than to the effect of the speech on its targets and on society, and the term “speech” ordinarily refers to oral statements rather than writings. Defamation disseminated through oral statement is slander, whereas written defamation is libel, which is more serious because it is more permanent. Thus, despite its title, the book is really about the desirability and constitutionality of state regulations of group libel, a topic addressed by Beauharnais.
In Beauharnais, by a 5–4 vote, the Supreme Court upheld the constitutionality of an Illinois statute prohibiting the publication or exhibition of any writing or picture that portrayed
depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, color, creed or religion which…exposes [the members of the class] to contempt, derision, or obloquy or which is productive of breach of the peace or riots.
The decision affirmed the defendant’s conviction for distributing a pamphlet that exposed black Illinois citizens to contempt, derision, or obloquy. Waldron quotes the pamphlet at some length and correctly notes that it neither threatened violence nor was likely to incite disorder; “the majority observed that it was enough that the leaflet was just hateful and defamatory.” As Justice Frankfurter explained:
Illinois did not have to look beyond her own borders or await the tragic experience of the last three decades to conclude that wilful purveyors of falsehood concerning racial and religious groups promote strife and tend powerfully to obstruct the manifold adjustments required for free, ordered life in a metropolitan, polyglot community.
Earlier in the book, as examples of judicial review of laws prohibiting hate speech, Waldron cites Beauharnais along with two other Supreme Court decisions. One, Virginia v. Black (2003), held that a state could ban cross- burning only if it was carried out with an intent to intimidate; the other, R.A.V. v. City of St. Paul (1992), held that an ordinance prohibiting cross burning was invalid. Waldron also cites as another example a 1978 federal court of appeals decision allowing Nazis to march in Skokie, Illinois. Those cases demonstrate that some state legislatures have decided that hate speech laws make sense, but they do not unequivocally answer the question whether the kind of legislation that Waldron favors would be constitutional. Of the four cases, only Beauharnais upheld the law, and Waldron acknowledges that scholars question that decision’s continuing validity.
Waldron emphasizes that three of the four dissenters in Beauharnais either assumed or agreed that group libel laws do not necessarily violate the First Amendment. Only Justice Black contended that the exception from the First Amendment that allows states to prohibit defamatory speech is limited to false and scurrilous statements about individuals and does not encompass “huge groups.” Waldron argues that Justice Black’s position disregards common law, including a 1732 case involving a blood libel against Jews in London and an 1868 New Hampshire case in which accusations of cowardice were levied against a company of soldiers. Waldron also contends that Justice Black’s position is unwise. He argues that the harm caused by libel is enhanced, not diffused, by an increase in the number of persons defamed. While this argument is logical and the two common law cases lend it support, the scarcity of relevant precedent suggests to me that that there is less need for legislative or judicial lawmaking than Waldron assumes.
Because Waldron focuses on the permissibility of prohibiting group libel, he does not pause to acknowledge that Beauharnais may well have been decided incorrectly for a few reasons that might not affect the validity of other hate speech regulation. In their separate dissents, three of the Justices persuasively argued that the trial judge erred in depriving the defendant of any opportunity to defend his statements as truthful; that his pamphlets may well have been constitutionally protected as petitions for the redress of grievances because they advocated a change in the law; and that the law might prohibit an unacceptable amount of protected speech even if the defendant’s own pamphlets were unprotected by the First Amendment.
Waldron argues, contrary to the view of federal judges and other scholars, that Justice Brennan’s 1964 opinion in New York Times v. Sullivan did not undermine Beauharnais. In Sullivan, the Court held that liability for damages turned on the plaintiff’s proof of actual malice, that is, that the defendant’s statement was made with knowledge of its falsity or reckless disregard as to whether it was false. As Waldron emphasizes, Sullivan applied its standard only to defamation of public figures. Waldron argues that Justice Brennan’s reasoning for special protection for comments about public officials in order to protect robust public debate is inapplicable “when the reputations of nonpublic figures (like ordinary African Americans living in Illinois) are at stake.” He notes that treating a group of citizens as public figures even when no individual in the group has that status “just seems silly.”
But there are two reasons why it is not “silly” to treat groups of private figures similarly to individual public figures. First, as is the case with critical comments about public figures, comments about groups are more likely to concern issues of general public interest than are comments about individuals. The concern about chilling valuable speech on such topics is significant, as it was in Sullivan. And second, groups, like public figures, are better able to make effective responses to unfair charges than the average private citizen. Groups may aggregate their resources for response and take advantage of the greater credence the public may afford to their shared, rather than individual, view.
Despite his explanation of why Sullivan should not apply, Waldron admits in an earlier chapter that “[Anthony] Lewis is probably right that Joseph Beauharnais’s conviction would not be upheld today.” He bases his admission not on Sullivan, but on the Supreme Court’s decision in Brandenburg v. Ohio (1969), which reversed the conviction of an Ohio Ku Klux Klan leader for advocating violence against blacks because the statute of conviction was not confined to speech that was intended and likely to produce imminent lawless action.
Waldron understands Brandenburg to mean that “hate speech, like seditious speech, is protected unless it is calculated to incite or likely to produce imminent lawless action.” Thus, he ultimately concludes the chapter by stating:
Judge Richard Posner is probably right when he said in 2008 that “though Beauharnais…has never been overruled, no one thinks that the First Amendment would today be interpreted to allow group defamation to be prohibited.”
An interesting feature of that dictum by Judge Posner, an unusually well-respected judge on the United States Court of Appeals for the Seventh Circuit, is that some years earlier another exceptionably well-respected judge on the same Circuit, the late Judge Robert Sprecher, expressed a different view. In his partial dissent from that court’s decision upholding the right of the Nazis to parade in Skokie, Illinois, Judge Sprecher argued that the reasoning in Sullivan, which relied on the plaintiff’s status as a public figure, did not undermine the holding in Beauharnais, which involved private figures—that is, Judge Sprecher offered essentially the same argument that Waldron makes in his book.
Whether Judge Posner or Judge Sprecher is the better prophet of the future of the central holding in Beauharnais may not really matter because all that was at stake in Beauharnais was a $200 fine for a misdemeanor conviction. Even if a narrowly drawn statute making it a misdemeanor to engage in the most virulent form of hate speech might be upheld, it by no means follows that a legislature could constitutionally outlaw the entire broad and vaguely defined category of hate speech that Waldron targets.
In any event, beyond Waldron’s acknowledgment of Brandenburg as countervailing authority, the Court’s recent decision in Snyder v. Phelps (2011) provides persuasive evidence that Judge Sprecher would be in dissent today, just as he was in the Skokie case. In Snyder, the Supreme Court held that the First Amendment protected speech that a jury had found intentionally inflicted emotional harm on the family of a deceased marine during his funeral. The speech contained a mixture of hateful comment and comment on public issues. Even though Justice Samuel Alito persuasively argued that the hate speech should not have been given constitutional protection because neither the deceased nor the members of his family were public figures, eight Justices ruled in the speakers’ favor.
Chapter 4, “The Appearance of Hate,” directs our attention to the contrast between “the visual aspect of a society contaminated by posters or publications that deprecate the dignity and basic citizenship of a certain class of people in society” and “what we would hope to see in a society that was open to the lives, opportunities, and expectations of members of every group.” Waldron argues that the latter would qualify as a “well-ordered society” within the concept of the philosopher John Rawls. Waldron also convincingly explains why the removal of hate speech signs would improve the quality of the environment for all of us. Nevertheless, he is uncertain about whether Rawls would share his view that hate speech should be entirely prohibited. Waldron’s argument has an “all or nothing” quality that leads me to wonder about whether he believes that some borderline unfriendly speech should be prohibited. If so, how much?
In Chapter 5, Waldron distinguishes between protecting people from offense and protecting their dignity. The example of contemptuous conduct in open court illustrates his distinction. We do not punish the contempt—at least we do not acknowledge doing so—because the judge may be angered by an insulting remark or gesture, but rather to maintain decorum in the courtroom. Sustaining a judge’s authority assists her in performing her job. So it is with the dignity of the ordinary citizen. The fact that members of an ethnic minority may be justifiably outraged by hate speech is not a sufficient justification for censorship. But as citizens in a civil society, they are entitled to be treated with respect in the performance of their daily activities. Such dignity, Waldron argues, is “precisely what hate speech laws are designed to protect.”
The distinction between protecting from offense and protecting individual dignity seems valid and parries the thrust of well-settled First Amendment law that the offensive character of a message does not provide an acceptable justification for official censorship. But it raises questions about the precise dimensions of the category of expression that Waldron would prohibit and how he would decide cases on the border of that category. For example, he correctly describes the Danish cartoons that portray the Prophet Muhammad as a bomb-throwing terrorist as being offensive to Muslims, but regards them as a “critique of Islam rather than a libel on Muslims.” He admits, however, that “it might be a question of judgment whether this was an attack on Danish Muslims as well as an attack on Muhammad,” and accepts that “where there are fine lines to be drawn the law should generally stay on the liberal side of them.”
In the end, although the book does not persuade me that it would be wise to outlaw the entire category of hate speech that Waldron describes, he elegantly and convincingly advocates that our leaders should not only avoid the use of hate speech themselves, but also condemn its use by others. Waldron writes:
Public order means more than just the absence of fighting: it includes the peaceful order of civil society and the dignitary order of ordinary people interacting with one another in ordinary ways, in the exchanges and the marketplace, on the basis of arm’s-length respect. Above all, it conveys a principle of inclusion and a rejection of the calumnies that tend to isolate and exclude vulnerable religious minorities. “[I]f we may openly speak the truth,” said John Locke, “as becomes one man to another, neither Pagan nor Mahometan, nor Jew, ought to be excluded from the civil rights of the commonwealth because of his religion.”
We should all do our best to preserve President Ford’s conception of America as a place where we can disagree without being disagreeable. An understanding of the arguments in Waldron’s book may help us to do so.