How Civil Rights Groups Defeated Hate Speech Laws
For most of the 20th century, America’s civil rights leaders opposed hate speech laws— because they knew who would be silenced first.
The following is a guest essay from University of Iowa Professor of Law Samantha Barbas, which has been adapted from her recent article in the Journal of Free Speech Law. For a more in-depth discussion on this topic and more information about the primary sources cited below, you can read her full article here.
In late July, two U.S. Representatives introduced a bill, the STOP HATE Act (Stopping Terrorists Online Presence and Holding Accountable Tech Entities), that would require social media companies to provide reports on their content moderation policies, and to issue policies for groups that the federal government designates as terrorist organizations, on threat of serious fines for violation.
The bill was backed by the Anti-Defamation League (ADL), whose advocacy of this measure runs contrary to the historic policy of the ADL and other civil rights groups opposing legal restrictions on hate speech.
In the United States, “hate speech” is generally protected by the First Amendment unless it provokes imminent violence or constitutes a “true threat” or “fighting words.” By contrast, hate speech laws exist in most other countries, where the principles of free speech are said to have no bearing on the expression of racial, ethnic, or religious hatred.
An important reason why hate speech laws failed to take root in America, as I explained in a recent article for the Journal of Free Speech Law, was the vigorous opposition of minority civil rights organizations to hate speech laws.
In the twentieth century, minority civil rights groups such as the National Association for the Advancement of Colored People (NAACP) and the American Jewish Committee opposed hate speech laws on the theory that such laws were ineffective in curtailing hate speech, and that any limitations on freedom of speech would hinder minorities’ efforts to achieve racial and religious equality. The opposition of these civil rights groups to hate speech laws changed American law and public policy. Notably, their arguments influenced the U.S. Supreme Court in the 1960s, which created an expansive, civil libertarian free speech jurisprudence that was intended, in significant part, to protect the civil rights movement.
The NAACP’s opposition to hate speech laws stemmed from its unsuccessful campaign in 1915 against D.W. Griffith’s notorious film The Birth of a Nation, which heroized the KKK. The NAACP petitioned officials throughout the country to ban the film. This effort backfired. The film was banned outright in only two states, and the campaign brought even more attention to the film. Hundreds of thousands went to screenings to see what was so controversial.
According to some historians, the popularity of The Birth of a Nation spurred the resurgence of the Ku Klux Klan. The controversy cast the NAACP in a negative light, portraying it as a censor while allowing Griffith to depict himself as a martyr for free speech. Following this failed effort, the NAACP turned away from government suppression as a strategy for dealing with hate speech. For much of the rest of the twentieth century, the NAACP and other civil rights groups opposed government restrictions on hate speech, instead advocating counter-speech as the most effective means of combating bigoted expression.
During the 1930s, when more than 800 fascist groups gained a foothold in the United States, the American Jewish Committee took a similar stance as the NAACP against restrictions on hate speech. It opposed anti-fascist, hate speech laws that were being proposed in several jurisdictions, on the grounds that “because of the[ir] necessarily vague language,” laws against hate speech or “race hatred” would not only curtail hate speakers, but also the free speech of minority groups. Hate speech laws would “react against the very minorities sought to be protected,” it argued. The “true and effective reply to the propaganda of bigots” was not to ban their speech, but to promote freedom of speech and “a campaign of education” against prejudice, the AJC contended.
The organization developed a successful tactic for dealing with hate speech that it dubbed the “silent treatment” or “quarantine,” which called for the denial of publicity to the activities of “professional bigots.” The idea was that hate speakers thrived on publicity and that they would wither away if no one paid them attention.
During the Second World War, the national NAACP officially advised its branches to oppose proposed hate speech laws. Thurgood Marshall, the NAACP’s legal counsel, noted that “there is grave danger that these bills … will serve to throttle . . . any [speaker] which seeks to champion the cause of minority groups. Usually, the wording of these statutes and proposed bills is very indefinite in meaning and might be used to apply to almost any critical statement.” NAACP efforts against the poll tax, he believed, “might be interpreted as an act of discrimination against the white race.”
Marshall denounced Beauharnais v. Illinois, in which the Supreme Court in 1952 upheld an Illinois hate speech law that had been used to convict a white supremacist. Marshall filed an amicus brief along with the ACLU, asking the Court to reconsider the decision. It agreed with the dissenting opinion of Justice Hugo Black, who noted that if racists could be forbidden from voicing their perspectives under a hate speech law, the same standard, speech “offensive to the community,” could be used by a Southern state to outlaw civil rights activists from voicing their opinions.
During the 1950s and ‘60s, segregationists in the South attempted to destroy the civil rights movement by attacking its efforts to speak and to organize. Nonviolent protesters were arrested on charges that their activities had “incited unrest” or “breached the peace.” The NAACP and other civil rights organizations recognized, more than ever, that the advance of civil rights depended on broad protections for freedom of speech.
In the 1960s, the NAACP joined the ACLU in defense of white supremacists’ free speech rights, as a matter of principle. Read the NAACP’s amicus brief in Fields v. City of Fairfield (1963), involving a neo-Nazi group called the National States’ Rights Party whose speech was enjoined in Alabama, “difficult as it may be to take the position in this case, petitioner believes that First Amendment rights must be vigorously guarded if the proponents of equality are to triumph.”
Civil rights leader Eleanor Holmes Norton successfully defended a KKK leader who had been prosecuted in Ohio for his racist speech. She recalled, “I loved the idea of looking a racist in the face . . . and saying, ‘I am your lawyer, sir, what are you going to do about that?” In Brandenburg v. Ohio (1969), the Supreme Court issued one of the most speech-protective rulings in history, a fundamental revision of the “clear and present danger” test. The civil rights movement contributed to First Amendment rulings that undermined, if not negated, the possibility of hate speech laws.
Yet starting in the 1970s, several significant civil rights organizations, including the NAACP and Anti-Defamation League, reversed their positions and advocated legal restrictions on hate speech. It’s unclear why this shift took place. With civil rights victories behind them, those organizations may have felt less willing to tolerate slurs and stereotypes.
After achieving successes in the previous decade, civil rights groups may have worried less about the consequences of silencing their opponents or may no longer have feared that the government would use hate speech laws against them. By the 1980s, many civil rights advocates supported hate speech laws in ways that would never have been contemplated twenty years earlier.
Nevertheless, for much of the twentieth century, civil rights groups had been the most vocal opponents of hate speech laws, with good reason. They recognized that restrictions on hate speech can lead to restrictions on any speech that government or society deems to be unpopular, including the speech of advocates of racial and social equality. They understood how the vagueness of the concept of “hatred” invites people to silence themselves.
As civil rights organizations recognized early on, punishing hate speech cannot replace the more meaningful and enduring work of addressing the underlying social and cultural problems that lead to prejudice and hatred.
Samantha Barbas is a professor of law at the University of Iowa and an award-winning author of several books on media history and law, with a focus on journalism, privacy, libel, and the First Amendment.