View the H-Law Discussion Logs by month
View the Prior Message in H-Law's April 2009 logs by: [date] [author] [thread]
View the Next Message in H-Law's April 2009 logs by: [date] [author] [thread]
Visit the H-Law home page.
I don't know how many did so, but some states clearly at one time or another had statutes on their books criminalizing the publication of statements that defame a racial, ethnic or religious group. Under such a statute, the defendant could be prosecuted for the defaming of the group, irrespective of whether a breach of the peace had occurred or was threatened. Being criminal in nature, this prohibition against group defamation would be enforced by means of a prosecution brought by the relevant state governmental official (e.g., a district attorney). If successful, the typical prosecution would probably have resulted in a fine for the publisher. In Beuharnais v. Illinois, 343 U.S. 250 (1952), the U.S. Supreme Court upheld the constitutionality of this sort of statute (enacted in Illinois in 1949) against First Amendment challenge, observing that libelous speech is unprotected speech. However, I think most commentators believe that Beuharnais has been significantly limited if not outright overruled by NY Times v. Sullivan and other later decisions according broader constitutional protection to speech. Back in the 1920s, and even today, members of a defamed group might also attempt to bring a civil (tort) action against the publisher of a group defamation. It would stand apart from the criminal prosecution. However, precisely because tort law is all about arming the victim of a wrong with the power to respond to the wrong done to him or her, defamation law on the civil side has been reluctant to recognize claims by individual group members for libels of a group. Among other things, a defamation plaintiff is required to establish that the defendant published a defamatory statement "of and concerning" her. In many instances, this aspect of her case will be straightforward. E.g., if publisher P, clearly referring to a particular Joan, says "Joan steals from her friends and customers," the statement is obviously 'of and concerning' Joan. At the other extreme, suppose P says: "All members of religi on or race R steal from their friends and customers." In all likelihood, no individual member of R will have 'standing' to seek damages or other individualized relief for P's publication, as it is not 'of and concerning' anyone in particular, but instead is a libel of the group. In between would be an instance such as one in which P says: "The jurors who voted to acquit the defendant in the Smith prosecution must have taken bribes." This statement may be civilly actionable by each of the jurors as members of a numerically small and identifiable group. Hope this helps. John Goldberg