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Beauharnais v. Illinois and Libel of Racial, Religious, Etc. Groups


This matter came up on another thread, so I thought I'd briefly discuss it in more detail.

In Beauharnais v. Illinois (1952), the Supreme Court upheld a "group libel" law that outlawed statements that expose racial or religious groups to contempt or hatred, unless the speaker could show that the statements were true and were said with "good motives" and for "justifiable ends." The Court's rationale was that (1) libel was constitutionally unprotected, and (2),

[T]he Illinois legislature may warrantably believe that a man's job and his educational opportunities and the dignity accorded him may depend as much on the reputation of the racial and religious group to which he willy-nilly belongs, as on his own merits. This being so, we are precluded from saying that speech concededly punishable when immediately directed at individuals cannot be outlawed if directed at groups with whose position and esteem in society the affiliated individual may be inextricably involved.

The Court therefore upheld Beauharnais' conviction for distributing leaflets that called on the Chicago Mayor and City Council "to halt the further encroachment, harassment and invasion of white people, their property, neighborhoods and persons, by the Negro," called for "One million self respecting white people in Chicago to unite," and stated that, "If persuasion and the need to prevent the white race from becoming mongrelized by the negro will not unite us, then the aggressions … rapes, robberies, knives, guns and marijuana of the negro, surely will."

Like some other old cases, such as Schenck v. U.S. (1919), Abrams v. U.S. (1919), Gilbert v. Minnesota (1920), and Gitlow v. New York (1925) (which upheld restrictions on speech sharply critical of the war and the draft, and speech expressing support for overthrowing the government), Beauharnais has never been formally overruled. But several appellate courts have held or strongly suggested that it's no longer binding precedent. See Nuxoll ex rel. Nuxoll v. Indian Prairie Sch. Dist. # 204, 523 F.3d 668, 672 (7th Cir. 2008); Am. Booksellers Ass'n, Inc. v. Hudnut, 771 F.2d 323, 331 n.3 (7th Cir. 1985) (likewise); Collin v. Smith, 578 F.2d 1197, 1205 (7th Cir. 1978); Tollett v. United States, 485 F.2d 1087, 1094 n.14 (8th Cir. 1973); Dworkin v. Hustler Magazine Inc., 867 F.2d 1188, 1200 (9th Cir. 1989). No courts, to my knowledge, have applied it in recent decades. Leading First Amendment scholars have taken the same view, Erwin Chemerinsky, Constitutional Law: Principles and Policies 1043-45 (4th ed. 2011); Laurence Tribe, Constitutional Law, § 12-17, at 926; Toni M. Massaro, Equality and Freedom of Expression: The Hate Speech Dilemma, 32 Wm. & Mary L. Rev. 211, 219 (1991); Robert C. Post, Cultural Heterogeneity and Law: Pornography, Blasphemy, and the First Amendment, 76 Calif. L. Rev. 297, 330-31 (1988); some others disagree, but the dominant view here is clear.

And I think those authorities are correct, because post-Beauharnais cases have firmly rejected the reasoning of the case (just as cases such as Brandenburg v. Ohio have rejected the reasoning of Schenck, Abrams, Gilbert, and Gitlow).

[1.] New York Times Co. v. Sullivan (1964), rejected the view that libel is categorically unprotected. Recall that the premise of Beauharnais was that libel was just unprotected, and therefore group libel is as punishable as individual libel.

[2.] To be sure, New York Times Co. v. Sullivan recognized that knowing or reckless falsehoods can be punished; but Garrison v. Louisiana (1964) made clear that, for statements on matters of public concern, truth has to be an absolute defense, regardless of whether the statements are made for "good motives" and for "justifiable ends." Beauharnais upheld a law that didn't make truth a complete defense, reasoning that,

As to the defense of truth, Illinois in common with many States requires a showing not only that the utterance state the facts, but also that the publication be made "with good motives and for justifiable ends." … What has been called "the common sense of American criminal law" … has been adopted in terms by Illinois. The teaching of a century and a half of criminal libel prosecutions in this country would go by the board if we were to hold that Illinois was not within her rights in making this combined requirement.

But that "teaching of a century and a half of criminal libel prosecutions in this country"—that good motives and justifiable ends could be required for a truth defense to prevail—did indeed go by the board in Garrison, which reasoned,

We next consider whether the historical limitation of the defense of truth in criminal libel to utterances published "with good motives and for justifiable ends" should be incorporated into the New York Times rule as it applies to criminal libel statutes; in particular, we must ask whether this history permits negating the truth defense, as the Louisiana statute does, on a showing of malice in the sense of ill-will. The "good motives" restriction … liberalized the common-law rule denying any defense for truth. We need not be concerned whether this limitation serves a legitimate state interest to the extent that it reflects abhorrence that "a man's forgotten misconduct, or the misconduct of a relation, in which the public had no interest, should be wantonly raked up, and published to the world, on the ground of its being true." In any event, where the criticism is of public officials and their conduct of public business, the interest in private reputation is overborne by the larger public interest, secured by the Constitution, in the dissemination of truth.

"If upon a lawful occasion for making a publication, he has published the truth, and no more, there is no sound principle which can make him liable, even if he was actuated by express malice…. It has been said that it is lawful to publish truth from good motives, and for justifiable ends. But this rule is too narrow. If there is a lawful occasion —a legal right to make a publication—and the matter true, the end is justifiable, and that, in such case, must be sufficient."

Moreover, even where the utterance is false, the great principles of the Constitution which secure freedom of expression in this area preclude attaching adverse consequences to any except the knowing or reckless falsehood. Debate on public issues will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred; even if he did speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of truth…. [P]ermitting a finding of malice based on an intent merely to inflict harm, rather than an intent to inflict harm through falsehood, "it becomes a hazardous matter to speak out against a popular politician, with the result that the dishonest and incompetent will be shielded."

[3.] New York Times dealt with libel of public officials; Garrison also mentioned public officials, though also talked more broadly about "[d]ebate on public issues"; but Gertz v. Robert Welch, Inc. (1974) made clear that the First Amendment protections against punishment of libel apply to all speech about matters of public concern, whether it touches on public or private figures. Gertz did allow proven compensatory damages to be recovered by private figures on a showing merely of negligence, but presumed damages and punitive damages could only be awarded on a showing of knowing or reckless falsehood, just as for public officials and public figures. It's even clearer that criminal punishment for statements on matters of public concern likewise requires knowing or reckless falsehood.

[4.] Gertz also reaffirmed that libel law doesn't apply to true statements; the Court's reasoning began with the premise that "there is no constitutional value in false statements of fact." And Philadelphia Newspapers, Inc. v. Hepps (1986) made clear that, on matters of public concern, the plaintiff (whether a public or private figure) had to prove falsehood, rather than requiring the defendant to prove truth. That is even more clearly so for criminal punishment; here again the statute in Beauharnais would be deficient under modern law.

[5.] Now that still leaves the question: What if the statute in Beauharnais were limited to false statements of fact about a racial or religious group that tended to expose it to contempt or hatred, which the defendant said knowing that they were false or likely false?

Even that statute, though, would be inconsistent with current law.

[A.] R.A.V. v. City of St. Paul (1992) held that, even within a zone of unprotected speech (there, fighting words), the government generally can't single out certain kinds of speech for special punishment, especially viewpoint-based punishment. Just as the Court in R.A.V. struck down a law that was read as specially banning bigoted "fighting words"—face-to-face personal insults that tend to provoke a violent reaction—so a law that specially bans bigoted libels would be unconstitutional, too. This is an oversimplification, given the complexity of R.A.V. and of Virginia v. Black (2003), and certain exemptions that they contain. But it's pretty clear that a law banning libel of races and religions would be seen as closely analogous to the R.A.V. law banning race- and religion-based fighting words. (R.A.V. did cite Beauharnais, but only for its general statement that there is a defamation exception, since that was the Court's first libel case that expressly so held.)

[B.] Finally, in U.S. v. Alvarez (2012), five Justices (two in the concurrence and three in the dissent) agreed that

there are broad areas in which any attempt by the state to penalize purportedly false speech would present a grave and unacceptable danger of suppressing truthful speech

and gave as examples of those areas, "false statements about philosophy, religion, history, the social sciences, the arts, and the like." In the words of the dissent,

The point is not that there is no such thing as truth or falsity in these areas or that the truth is always impossible to ascertain, but rather that it is perilous to permit the state to be the arbiter of truth.

Even where there is a wide scholarly consensus concerning a particular matter, the truth is served by allowing that consensus to be challenged without fear of reprisal. Today's accepted wisdom sometimes turns out to be mistaken. And in these contexts, "[e]ven a false statement may be deemed to make a valuable contribution to public debate, since it brings about 'the clearer perception and livelier impression of truth, produced by its collision with error.'"

The plurality didn't disagree, and if anything supported even broader protection for false statements.

Statements about race and crime (the statements involved in Beauharnais itself) would likely qualify as being "about … the social sciences … and the like," and thus would be categorically protected under Alvarez.

[* * *]

For all these reasons, I think that lower courts should feel no more bound by the reasoning of Beauharnais than they are by Schenck, Abrams, Gilbert, and Gitlow. But even if a court concludes that Beauharnais has to be applied as to a group libel statute identical to Illinois' until it's expressly reversed by the Court, to my knowledge there are no such criminal statutes remaining, except for a seemingly never-used one in Massachusetts; and the common-law tort of libel likewise doesn't extend to such large groups (see, e.g., Mikolinski v. Burt Reynolds Prod. Co. (Mass. App. Ct. 1980)).