Journal of American History, Oct. 1994.
Hate Speech: The History of an American Controversy. By Samuel Walker. Lincoln and London: University of Nebraska Press 1994. ix + 217 pp.
Samuel Walker’s concise history of hate speech regulation in the United States attempts to explain why restrictions on hate speech similar to those developed in Western European democracies after World War II failed to gain public support in the United States. Walker’s theory of social and legal change emphasizes the pivotal role played by advocacy groups like the ACLU and the NAACP. Conversely, he doubts that the federal courts, and in particular, the U.S. Supreme Court, played the most important role. Walker notes that plenty of opportunities existed within Supreme Court precedent to create a law of group libel. For example, in Chaplinsky v. New Hampshire, 315 U.S. 358 (1942), the Supreme Court recognized a category of “fighting words;” words that by their very nature inflict injury or incite violence. In Beauharnais v. Illinois, 343 U.S. 250 (1952), the Supreme Court actually upheld an Illinois group libel law. Yet despite the seeds of a coherent hate speech doctrine, the Supreme Court increasingly moved toward a libertarian conception that protected hate speech.
The strategy of civil rights groups, Walker thinks, explains this result. These groups decided that the most effective means of gaining equality for racial and religious minorities was to argue for the expansion of individual rights, like freedom of speech, rather than group rights. This decision was both principled and pragmatic. Walker shows repeatedly that group libel laws, once passed, usually remained unenforced. When they were invoked it was rarely against bigoted members of powerful majority groups, but usually against members of unpopular racial and religious minorities. Similarly, strategies designed to restrict and harass Fascist groups were often turned against the Communist Party, labor organizations, and civil rights groups. Hence, civil rights groups never rallied behind hate speech laws, and without an effective advocate, they rarely prevailed.
Walker believes that the recent passage of campus speech codes is consistent with his theory because it presents the converse phenomenon. College campuses represent a special environment in which minority groups have been able to forge powerful alliances with other groups (for example, women’s groups and gay and lesbian activists) and have faced relatively little resistance from liberal faculty and administration. Hence, the pursuit of regulations on hate speech makes greater sense in this limited area. Despite this, Walker believes that the enduring lesson of hate speech regulation is that it is in the interests of civil rights groups to emphasize the protection of individual rights.
Nevertheless, as Walker notes, in recent years civil rights groups have increasingly sought group based remedies in areas like affirmative action and voting rights, while conservatives have increasingly supported libertarian positions on hate speech. If civil rights groups increasingly believe that group rights are worth fighting for, perhaps Walker’s own theory suggests that the doctrines of free speech will move closer to the European model. Conversely, if they do not, perhaps advocacy groups do not play as central a role as he believes.
Yale Law School