The Volokh Conspiracy
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Journal of Free Speech Law: "How American Civil Rights Groups Defeated Hate Speech Laws," by Samantha Barbas
This new article is here. The Introduction:
In the United States, as is widely known, "hate speech" is generally protected by the First Amendment. Hate speech is considered "free speech" unless it provokes imminent violence or constitutes a "true threat" or "fighting words." No other nation protects the right to express hate so vigorously. Hate speech laws exist in most other countries, where the principles of free speech are said to have no bearing on the expression of racial, ethnic, or religious hatred.
Why are there no hate speech laws in America? There are many possible explanations. Some have suggested that the United States diverged from the rest of the world on hate speech regulation because of deeply ingrained national traits and tendencies, such as Americans' historic fear of government regulation and our individualistic culture. In a book manuscript in progress, I argue that the course that America took on hate speech was not foreordained but was rather the result of contingency and circumstance. Hate speech laws existed in many jurisdictions before the 1950s, and there was a good deal of popular support for hate speech laws.
The reasons why hate speech laws ultimately failed to take root in America are complex. Timing was an important factor. The onset of McCarthyism in the 1950s undercut campaigns during the previous decade to advocate for hate speech laws. Efforts to enact hate speech laws arose during the period of the development of the modern First Amendment, between 1930 and 1960. Hate speech regulations clashed with emerging civil libertarian free speech principles, and free speech ultimately prevailed.
This essay focuses on another significant reason why hate speech laws may have failed to take root in America—the vigorous opposition of minority civil rights organizations to hate speech laws at the time when those laws had their greatest potential for adoption. Minority civil rights groups such as the National Association for the Advancement of Colored People (NAACP) and the American Jewish Committee opposed hate speech laws on the theory that such laws were ineffective in curtailing hate speech, and that any limitations on freedom of speech would hinder minorities' efforts to achieve racial and religious equality.
At a time when lynchings and cross-burnings were rampant, and when American fascist demagogues and neo-Nazis routinely terrorized minorities, the leaders of these civil rights groups thought hard about the hate speech problem. They concluded that the most effective way to reduce racial and religious hatred was to combat hate speech through counter-speech and education, rather than through legal restrictions on hate speech. The opposition of these civil rights groups to hate speech laws changed American law and public policy. Notably, their arguments influenced the Supreme Court in the 1960s, which created an expansive, civil libertarian free speech jurisprudence that was intended, in significant part, to protect the civil rights movement.
This essay tells the story of how and why American civil rights organizations opposed hate speech laws for much of the twentieth century. Civil rights groups like the NAACP could have sought laws banning hate speech, just as they fought for the desegregation of public facilities. Instead, eminent civil rights leaders—including Thurgood Marshall, W.E.B. Du Bois, and Louis Marshall, among others—rejected hate speech laws as incompatible with the pursuit of equality and civil rights.
This essay discusses significant episodes in the twentieth century when civil rights groups opposed hate speech laws, with important consequences for free speech law and public policy. Part I narrates the NAACP's campaign to have the film The Birth of a Nation censored, and how the failure of that campaign convinced the national NAACP of the ineffectiveness of legal regulations on hate speech. Part II describes Jewish civil rights organizations' rejection of hate speech laws in the 1920s and '30s, and how those groups developed methods to stop antisemitic attacks through means other than legal restriction. Part III explores black and Jewish civil rights groups' opposition to proposed hate speech laws in the 1940s, and their creation of a "quarantine" or "silent treatment" policy as an alternative to legal suppression of hate speech.
Part IV explains how the civil rights movement joined with the American Civil Liberties Union in the 1960s to defend the free speech of white supremacists, resulting in landmark First Amendment precedents. Part V details how and why some civil rights groups changed their positions on hate speech starting in the 1970s, a shift that was most visibly demonstrated in litigation surrounding neo-Nazi attempts to march in Skokie, Illinois. The conclusion emphasizes the wisdom of the civil rights groups' earlier stance opposing restrictions on hate speech.
