The traditional view of the first amendment's free speech guarantee as absolute, allowing few and narrow exceptions, reflects the Constitution's dedication to an open and unfettered exchange of ideas. Those thoughts that are abhorrent to a free society, the argument goes, will wither when aired but fester if suppressed. Moreover, who is to decide which ideas are offensive? The interests of the state may well be inferior to those of the people, the wisdom of public servants often suspect in quality and motivation. But freedom of speech is so precious and delicate a liberty it must be preserved at great cost: thus the depth of conviction of Voltaire's oft-quoted declaration, "I disapprove of what you say but I will defend to the death your right to say it."
One may not justify a rule of absolute construction merely by asserting that it is difficult to draw a line between acceptable and nonacceptable expression or to allocate responsibility for deciding what speech requires restriction. The carefully delineated exceptions to the rule of free speech, such as obscenity, libel and fighting words, as well as the recognition of legitimate time, place and manner restrictions are all based on the premise that the first amendment was not intended to protect certain utterances. In recent years there has been growing support for yet another exception: the destructive attack on a target group of people by stimulating hatred or fear in others, i.e., racial defamation.
Does such a restriction pass constitutional muster? Thirty years ago in Beauharnais v. Illinois, the Court answered that question in the affirmative. Although Beauharnais has not been overruled, recent opinions have questioned its vitality. Subsequent changes to the law of libel have led some to believe that group libel statutes would not survive constitutional challenge today. In Collin v. Smith, furthermore, the Court of Appeals for the Seventh Circuit rejected the enforceability of a similar ordinance enacted to prevent the American Nazi Party from demonstrating in Skokie, Illinois. The Court denied certiorari, thereby preserving, presumably, the sanctity of freedom of speech.
Do ugly ideas wither when aired, or is this reasoning naive? This article will examine the relationship between racial defamation and freedom of speech. It will compare American libel law with that of several countries where restrictive statutes have long been in place, and will draw conclusions as to the moral, social and practical value of laws that allow the state to punish racial defamation and permit the courts to limit that form of speech.
Racial Defamation as Free Speech: Abusing the First Amendment, 17 Colum. Hum. Rts. L. Rev. 11 (1985)