The Curious Rise and Fall of Group Libel in America, 1942-1952
In the years between 1942 and 1952 the idea of restricting hate speech enjoyed a brief moment of favor. Until the flurry of support for campus speech codes in the 1980s, this was the only period in American history when such restrictions received serious consideration. The specific proposal called for group libel legislation extending the traditional law of criminal libel to statements about racial and religious groups.1 Group libel legislation received intellectual backing from some influential voices; it was advocated by a few civil rights groups, debated in Congress, and enacted into law by several states and cities.
Most important, in 1952 the Supreme Court upheld the constitutionality of a 1917 Illinois group libel law.2 For the advocates of restrictions on hate speech, the Court's decision in Beauharnais was a great victory. Justice Felix Frankfurter's majority opinion granted virtually everything they could have hoped for. Yet something curious happened. Instead of spurring a wave of group libel laws across the country as might have been expected, the Beauharnais decision produced nothing. It received an extremely lukewarm reception, and the concept of group libel was soon repudiated even by its strongest supporters. The American Jewish Congress, which had been its principal advocate, repudiated it eight years after Beauharnais,3 and in 1961 the state of Illinois repealed the 1917 law itself.
The repudiation of group libel laws following the Supreme Court