If protecting freedom of speech is one of mankind's noblest pursuits, then restricting it is the most difficult. Yet limit we must: even the purest civil libertarian will concede that false shouts of fire cannot be countenanced nor broadcasts of wartime troop movements; even those who object to obscenity laws recognize the need for enabling redress of libel; and even those who would protect the right to be insulting do not defend inflammatory words spit out nose-to-nose. Now a spate of "speech codes" on college campuses has once again brought the first amendment to the fore, part of a simmering debate on the extent to which we can constitutionally limit the language of hatred.
The rule should be a simple one: expression of all ideas is protected, except for those in narrowly defined categories such as state secrets, obscenity, fighting words, and defamation. The last exception should include a civil action for group libel. While the rule may be simple, however, it is not simplistic--nor any more difficult to apply than the analysis required in the fact-finding process of a trial by judge or jury.
This paper will briefly examine the various approaches to free speech both in America and elsewhere, suggest how they may be read in harmony with the rule stated above, and apply such reasoning to specific cases of group defamation.
To Stimulate, Provoke, or Incite? Hate Speech and the First Amendment, 3 St. Thomas L. F. 49 (1991)