Just published as the first article in volume 2, issue 2 of the Journal of Free Speech Law, and available here; here’s the Introduction:
What harms are caused by hate speech? How can we assess those harms? Does hate speech lead to violence? Do racial, ethnic, and religious groups have reputations that can be injured? Do the benefits of hate speech laws outweigh the harms that might be caused by restricting speech?
Americans grappled with these questions since the early twentieth century, which saw the first calls for “hate speech” laws. Advocates of those laws championed them as essential to promoting social order, civility, and civil rights, while critics denounced them as vague, ineffective, and possibly unconstitutional. The passage of hate speech laws in states and municipalities during the World War II era did little to resolve the debate.
The uncertain First Amendment status of hate speech laws loomed large in the late 1940s as the Supreme Court expanded protections for offensive speech in a series of landmark cases. The question of the constitutionality of hate speech laws finally came before the Court in 1952, in Beauharnais v. Illinois, involving the conviction of a white supremacist leader under an Illinois group defamation law. Beauharnais highlighted questions central to the hate speech law debate: Are hate speech laws valid prohibitions of insult and defamation, or are they unconstitutional restrictions on political speech? When can freedom of speech be limited in the interest of equality, civility, and dignity? The Supreme Court considered these issues against a contentious backdrop—the onset of the Cold War, the shadow of Nazi Germany, and violent race riots in the Midwest. In an opinion by Felix Frankfurter, a five-Justice majority upheld the Illinois statute, marking the first and only time that the Supreme Court validated a hate speech law.
Observers expected that Beauharnais would lead to the passage of hate speech or group libel laws nationwide, but that did not happen.
There were few calls for group libel laws after Beauharnais, and the movement to pass hate speech and group libel laws died out shortly afterward. Why the effort to pass hate speech laws diminished after a Supreme Court ruling approving their constitutionality is a mystery of First Amendment history. The answer lies in public opinion. By the 1950s, much of the public, as well as significant civil rights constituencies, opposed group libel laws, and no Supreme Court decision could change that fact. The Beauharnais ruling and its underlying principles fell into desuetude. The Supreme Court never overruled Beauharnais but effectively invalidated it in New York Times v. Sullivan (1964), R.A.V. v. St. Paul (1992), and other cases that declared hate speech, with limited exceptions, to be constitutionally protected expression.
Beauharnais v. Illinois has been the subject of renewed interest in the twenty-first century as we confront a wave of hate speech online. Some have described Beauharnais as a lost opportunity. We might have been a more just, civilized, and unified nation, they argue, if the Court’s lead had been followed and hate speech laws adopted. Others suggest that the public’s rejection of Beauharnais represented a sound choice to favor free expression over limitations on expression. They contend that the choice made possible greater advances in civil rights than if the Supreme Court’s decision had been embraced.