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Abstract

It is well-known that there is no “hate speech” law in the United States. This has been criticized, especially given the existence of robust hate speech laws in other nations. The absence of hate speech laws in American law has been attributed to legal, cultural, and historical factors, including speech protective First Amendment jurisprudence and long-standing skepticism of group reputation as an interest worthy of legal protection. This Article presents another reason for the absence of hate speech laws in America: the failure of a large-scale social movement in the 1940s to pass hate speech laws or “group libel” laws, as they were known. For over a decade, activists called for legislation that would impose civil liability and criminal punishment for speech that disparaged racial and religious groups. This movement was a response to the proliferation of anti-Semitic and fascist hate groups in the U.S. before and during the Second World War. Existing libel laws, which addressed the defamation of individuals, were inadequate to address the problem of group defamation. The movement to pass state and federal group libel laws produced a robust national dialogue on the problem of hate speech in the 1940s, but little in the way of actual law. The “group libel law movement” rose and fell quickly, declining--ironically-- just before the Supreme Court issued its 1952 decision in Beauharnais v. Illinois, approving the constitutionality of an Illinois group libel law. By that time, the movement for group libel laws had dissipated, and many onetime proponents of such laws rejected them. The Beauharnais decision led to no new group libel laws, in part because there were few remaining advocates to promote them. Had the group libel law movement persisted, the United States might have taken a different approach to the regulation of hate speech.

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