Free Speech Triumphant: From Beauharnais to Skokie, 1952-1978
Between the late 1940s and the mid-1970s the United States developed a national policy on hate speech. That policy, protecting offensive forms of expression, was part of a much broader development of First Amendment law reflecting "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide- open."1
The period begins, roughly, in the years following World War II and ends with the Skokie controversy in 1978. In that case the federal courts upheld the right of a Nazi group to demonstrate in the predominantly Jewish community of Skokie, Illinois, and declared unconstitutional three municipal ordinances, including one that prohibited the dissemination of materials inciting hatred based on race, national origin, or religion.2 The Supreme Court did not hear an appeal of the Skokie case, letting the Seventh Circuit Court of Appeals decision stand. The lower court rejected the village of Skokie's arguments that the Nazi slogans constituted "fighting words" as defined by Chaplinsky and group libel under the Beauharnais decision.
The Skokie decision affirmed a national policy that had evolved over the previous decades. This chapter examines how and why that policy developed as it did. One specific question is why the courts in the Skokie case rejected the opportunities to restrict hate speech that presumably were available under Chaplinsky and Beauharnais.