Why America Has Hate Speech Laws

On civility and public life.

Ask not only laymen, but also many legal commentators, and they will tell you that the United States has no laws against hate speech. As the Foundation for Individual Rights and Expression puts it, “contrary to a common misconception, most expression one might identify as ‘hate speech’ is protected by the First Amendment and cannot lawfully be censored, punished, or unduly burdened by the government.” This feature of our law, it is often argued, is a major way America differs from our more censorious developed peers.

While it is commonly accepted, it is also not precisely true. While many of the hate speech prohibitions in other nations would not fly here, what are known as “group libel laws”—which prohibit the defamation of groups of people based on their inherent characteristics—have the blessing of the Supreme Court. Such laws remain on the books, even if never enforced, in several states.

Indeed, there was a brief, now mostly forgotten, period in American life when group libel was expected to be the front-line defense against rising fascism. And while the laws have faded from public discussion today, they raise important questions about how we have come to think about speech in the modern era, and the role of speech in public life.

Let’s back up and talk for a minute about defamation. “Defamation,” the Free Speech Center’s First Amendment Encyclopedia helpfully informs us, “is a tort that encompasses false statements of fact that harm another’s reputation.” There are two kinds—spoken defamation (slander) and written defamation (libel). Both types secure, as Justice Potter Stewart put it, “the right to protect one’s good name.” The law also distinguishes civil libel—a civil claim brought by one party against another—from criminal libel, which is enforced by the state, and justified by libel’s tendency “to create breaches of the peace when the defamed or his friends undertake to revenge themselves on the defamer.”

Historically, libel was not considered speech protected by the First Amendment. In Chaplinsky v. New Hampshire, defamation was listed along with obscenity, “the profane,” and fighting words as falling outside the bounds of Constitutional protection. Since 1964’s New York Times Co. v. Sullivan, the Supreme Court has placed First Amendment restraints on libel law, in particular making it harder for public figures to bring libel claims. But it remains possible to bring libel suits today, and criminal libel laws remain on the books in a number of states.

Libel is not restricted to individuals. Although the Supreme Court has imposed some constraints, traditionally one can libel a business, or the government (seditious libel) or God (blasphemous libel).¹ This raises the question: can one libel a group of people?

In the 1940s, a major social movement emerged built around the idea that the answer was “yes” and, moreover, that “group libel” laws were an effective way to fight what we would today call hate speech.² While civil group libel posed challenging legal problems—who has standing to sue on behalf of an entire group?—criminal group libel laws seemed to stand on firmer ground. Perhaps states could criminally punish people who incite hate in a way that creates breaches of the peace. In 1917, Illinois passed the first such law, prohibiting the distribution of any publication which “portrays depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, color, creed or religion” and thereby “exposes the citizens of any race, color, creed or religion to contempt, derision, or obloquy or which is productive of breach of the peace or riots.”

The group libel movement did not really get going until the rise of fascism in Europe, when many Americans identified fascist ideas as a serious threat to our democratic way of life. As legal historian Samantha Barbas writes:

The ascendance of the Nazi regime in Germany in the 1930s and the proliferation of Nazi groups in the U.S. led to calls to criminalize antisemitic defamation. In the 1930s, hundreds of Nazi groups formed in the U.S., with names like the Silver Shirts, Defenders of the Christian Faith, and the German American Bund, with over 25,000 members. Many of these were aided directly by Hitler’s government. By 1939, there were 800 pro-fascist or pro-Nazi organizations in the United States. … One-third of Americans were said to receive fascist literature regularly in the mail in the early 1940s.

Many were alarmed by both the content of these messages and the idea that a hostile foreign power was attempting to influence domestic concerns. In response, prominent Americans argued that group libel would be an effective way to control such speeech.

It is hard to overstate the influence of this movement—supporters, Barbas writes, included “the American Jewish Congress, labor organizations, Communist Party members, liberal academics, and public officials, including Solicitor General Francis Biddle, who in a 1940 address before the American Association of Law Schools advocated group libel law.” By 1950, there were group libel laws in California, Connecticut, Illinois, Indiana, Massachusetts, Nevada, and West Virginia, as well as in the cities of Cincinnati, Chicago, Sacramento, Denver, Houston, Oklahoma City, Omaha, and Portland, Oregon.

That did not mean, of course, that there was not opposition to group libel laws. Much of the nation’s press opposed them, as did the ACLU. And while there were Jewish and black groups in favor of group libel, there were also Jewish and black groups which fervently rejected them. Opponents generally argued that group libel laws contravened the First Amendment, and that the correct way to fight bad speech was with more speech, not less.

The legal dispute came to a head in 1952’s Beauharnais v. Illinois. Joseph Beauharnais, president of a white supremacist group, had distributed a pamphlet which called for “one million self-respecting white people in Chicago to unite” against the supposedly malign influence of black people, adding 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.” He was arrested, tried, and duly convicted under Illinois’s group libel statute. On appeal, Beauharnais argued that the law violated his First Amendment rights.

That argument was not remarkable; after all, the ACLU had been saying much the same for years. What was remarkable was the resultant ruling in Beauharnais. In a 5-4 decision, the Court concluded that Illinois’s group libel statute did not run afoul of the First Amendment; group libel, in other words, is not protected speech. The Court relied on its finding in Chaplinsky that libel was outside the First Amendment’s protection, adding that “if an utterance directed at an individual may be the object of criminal sanctions, we cannot deny to a State power to punish the same utterance directed at a defined group, unless we can say that this is a willful and purposeless restriction unrelated to the peace and well-being of the State.”

Surprisingly, Beauharnais turned out not to be a stepping stone for the group libel law movement, but its capstone. By the time the Court handed down its opinion, the movement had largely dissolved, with the struggle for civil rights directing its attention elsewhere. Illinois repealed its law in 1961. Today, group libel laws remain on the books in Connecticut, Massachusetts, and arguably Nevada, but I have been unable to find any evidence of their being enforced.

As a result, Beauharnais remains mostly a constitutional oddity, an exception to the general rule that hate speech is permissible. Its effects, moreover, have been blunted by subsequent rulings. Criminal libel laws, once the foundation of libel law, have fallen out of legal favor. In particular, any group libel prosecution today would probably need to comply with the Court’s finding in Garrison v. Louisiana that truth is an absolute defense against criminal libel prosecution—requiring, therefore, a public adjudication of the truth of bigotry.

Why relate this story? In part, as an interesting piece of historical trivia—a whole movement mostly forgotten, but for a mark on our constitutional landscape. (And I am very interested in forgotten movements.) And now you can rebut your friends who claim that America has no hate speech laws—we have *almost* no hate speech laws.

But do I want to mount a defense of group libel laws? I suspect that in practice they would be mostly a fig leaf, and apt to be abused by the sort liable to challenge anything they don’t like as hate. (Though this second concern is in some senses obviated by the first, since truth would be a defense against prosecution.)

At the same time, I think Beauharnais, and the theory of speech which undergirds it, say something important about how we think about the role of speech in public life. I think our rejection of that older way of thinking has led to much of our contemporary confusion around speech as such, and that recalling what we used to think speech was is instructive for contemporary debates.

I first learned about group libel laws from political theorist Hadley Arkes’s excellent book The Philosopher in the City: the Moral Dimensions of Urban Politics. The book is about philosophy, law, and urban life (you can imagine why I was interested in it). The first two chapters are dedicated to group libel and the phenomenon of speech generally, and are an extension of prior writing Arkes had done, for example, objecting to the American Nazi Party being allowed to march in Skokie, Ill. This latter argument was first published in National Review,³ and Arkes is generally identified as a conservative. From the vantage point of 2025, this seems unusual—aren’t conservatives supposed to be all about free speech?⁴

Arkes was, however (and still is) defending an older view of speech against what he perceived as judicial assault. Following Beauharnais, in the period during which Arkes first started advancing his arguments, the Court oversaw a general legal and cultural transition to what my Manhattan Institute colleague Tal Fortgang has labeled “free speech supramaximalism,” the idea that “not only must speech prevail over regulation, but nearly everything is sooner or later described and defended as speech.” It took this position when asked about hate speech, which is generally protected. But it’s also took it on the variety of activities that are now demarcated as speech, from flag burning to wearing the words “fuck the draft” to letting Nazis march in neighborhoods full of Holocaust survivors.

Against this attitude, Arkes preferred what he regarded as the traditional understanding of speech, grounded both in English common law and what the Founders probably understood “freedom of speech” to entail. On group libel, and libel generally, Arkes writes:

The question … is whether injuries (or “injustices”) can be inflicted through the use of speech; and for most of our history the answer to that question seemed obvious. There was nothing about speech itself that rendered it categorically innocent or incapable of doing harm. … If there is an obligation then to restrict speech, even in a democratic regime, it is because speech can be a medium of injustice along with a variety of other devices. And if we have the capacity to judge whether harms are inflicted justly or unjustly, we do not lose that capacity to judge when the harms are inflicted through the use of speech.

Even as the Court has moved away from Arkes’s view, continuously expanding the zone of legally permissible speech, the idea that words can wound is in many senses stronger than ever. As Barbas, the historian, notes, concern with hate speech did not vanish with Beauharnais. It was revived by, among others, the legal scholar Richard Delgado, a godfather of Critical Race Theory who argued that hate speech should be addressed by the creation of a new tort action to permit those harmed by hateful words to recover damages.

Delgado’s successors—academic and activist alike—have sought to enshrine legal and social constraints on speech they deem to be harmful to an ever-expanding array of identities and classes. Influenced in part by them, today’s young people are famously censorious.

The result is something of a paradox. Legally, we have never been more permitted to speak. Socially, we are not at our most restricted, but we are almost certainly more restricted in our speech than the Court probably expected we would be when it started handing down liberalizing rulings in the 1960s and 1970s. This is how we get the routine spectacle of students exercising their free speech rights to protest in favor of silencing others. 50 years ago, we made sure that Americans had the right to wear a jacket that read “Fuck the Draft”; today, extreme social penalties accrue for all sorts of less obviously offensive sartorial choices.

Many, of course, see these two tendencies as being in tension. Yet lots of people seem to be able to hold both views simultaneously, which should cause us to ask what they have in common.

One answer is that they both justify themselves by reference to the individual. Advocates of free speech supramaximalism regard it as an offense against personal liberty to constrain anyone from saying anything at any point. The “woke,” by contrast, regard the individual’s right to be free from the barbs of hate as paramount—a principle which still focuses on the individual and his rights. As Barbas puts it, modern hate speech opponents “focused less on the social unrest caused by group defamation and more on the psychic and emotional harms that group defamation caused to individual members of minority groups.”

By contrast, neither side expresses objective principles for determining when speech is good. Neither side is really interested, that is, in any account of what the protection of free speech is for—which, if articulated, would permit us to say what speech is not for. One side argues that speech is good because it is speech, the other that speech is bad because it can harm. But when are speech’s harms justifiable? The law, historically, has considered this a cognizable question. But neither side has a coherent answer.

I might go so far as to suggest that our paradox—free speech maximalism alongside censoriousness—is a function of the lack of any sort of ordering principle or principles. Unlimited free speech will breed a backlash if we can’t make recourse to some kind of shared, coherent logic underwriting the problem cases that inevitably arise. Instead, we swing wildly between the two extremes because we have no method for calculating the golden mean.

Moreover, because the state has absolved itself of any role in the regulation of speech—even in its unprotected extremes—non-state actors pick up responsibility for doing so. In some ways this is desirable, because the state has certain powers we do not wish to see deployed against speech. But the state also has certain procedural safeguards which the community lacks.

The thing that everyone hates about cancel culture, after all, isn’t the idea that some statements merit social opprobrium. It’s the lack of process afforded to those accused of transgressing ill-defined lines, issues that the rule of law and due process are meant to address. Similarly, the constitutional prohibition on ex post facto laws does not apply to culture—what offends us about someone being fired for decades-old tweets is that it is illiberal to punish someone for doing something that was not, at the time of the act, a crime.

Whatever its demerits, the old way of thinking about speech—Arkes’s way—did not suffer from a lack of ordering principles. Indeed, it rested on the notion that some speech can be regulated by reference to its effects on civil order, and its tendency to disrupt that civil order—to undermine the practice of the virtue of civility. In Chaplinsky, the Court excluded certain kinds of speech on this basis, noting that its disfavored categories form “no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality” which they undermine.

Recall that group libel, like all criminal libels, is primarily justified by the state’s interest in keeping the peace. Illinois’s law, characteristically, prohibits speech “which is productive of breach of the peace or riots.” And the Court, in the Beauharnais opinion, notes that “the [Illinois] Supreme Court's characterization of the words prohibited by the statute as those ‘liable to cause violence and disorder’ paraphrases the traditional justification for punishing libels criminally, namely their ‘tendency to cause breach of the peace.’”

This idea—that speech can be proscribed because it threatens social peace—occupies an uncomfortable place in modern constitutional jurisprudence. The “tendency” phrase that the Court used in 1952 alludes to the “bad tendency” test for measuring when speech is dangerous enough to prohibit. That test was overridden by 1969’s Brandenburg v. Ohio, which undid literally hundreds of years of law to conclude that speech could only be constrained if it risked “imminent lawless action.” But cases like Beauharnais and Chaplinsky remain good law, and in principle preserve the idea that certain speech can be prohibited not just because it harms individuals (or groups), but because it disrupts public order as such.

The principle that these decisions embody offers us a firmer grounds for objecting to hate speech than the hurt feelings upon which Delgado tried to build his case. The problem with hate speech is not that it makes people feel bad; it is that it contravenes civility, and can thereby disrupt the civil order. This is true because handing out pamphlets that label certain groups rapists and murderers is liable to start a riot. But it is also true because civility is a necessary predicate of public life, which in turn is the foundation of a democracy.

This idea is a more bitter pill to swallow, though, than it may first seem. If you are willing to appeal to civility, after all, then you cannot stop at hate speech. You probably ought to extend it to disorderly behavior, obscenity, and the disruptive protests that amount to civil terrorism. Control of hate can be justified by reference to a socially conservative set of values that most advocates of hate speech laws are uncomfortable with or even openly hostile to.

I am not persuaded of the necessity of hate speech laws, even within the limited constitutional confines that apparently permit them. If we are to have group libel laws, I favor their appearance in name only, if for no other reason than that they are extremely hard to enforce. But I do think that there’s a strong argument that some egregious public expressions of hatred and intolerance imperils public order as such, and that some forms of regulation can be justified on those grounds—grounds firmer than appeals to hurt feelings. As I wrote several years ago in a report on hate crime:

Norms of respect regardless of difference are a precondition of the functioning of a polity like New York City. Hate crime enforcement establishes certain behavior as beyond the bounds of acceptable and therefore safeguards civic life. In one sense, this view is instrumental: prosecute hate crimes because doing so preserves civic peace; in another sense, it is intrinsic: prosecute hate crimes because their commission offends public decency more so than other crimes.

Hate crime enhancements are not hate speech laws; they regulate conduct, not expression. They do so by imposing an extra penalty on those who commit otherwise normal crimes motivated by bias. And they are justified in doing so because civic life is grounded in civility, and they contravene that virtue.

The idea that civility is an important part of democratic life does descriptively ground our historical objections to hate speech (in the form of “group libel” laws). And it should ground our decision-making about what speech is socially, and perhaps legally, impermissible. That we are no longer able to speak in the terms of civility perhaps explains the incoherence of contemporary speech discourse. But there is a history and tradition of doing so, and it would be good to recover it.

1. Blasphemy is still probably not protected speech under the First Amendment, fun fact.

2. The history in this post is based on Samantha Barbas, “The Rise and Fall of Group Libel: The Forgotten Campaign for Hate Speech Laws,” 54 Loy. U. Chi. L.J. 297 (2022), https://digitalcommons.law.buffalo.edu/journal_articles/1143.

3. I have a PDF of this article, courtesy the National Review Institute’s Nicholas Mosvick, which I am happy to share.

4. Regular TCF readers will recall that Bill Buckley’s views were more complicated.