Hate Speech: The History of an American Controversy

Overview

The First Amendment protects even the most offensive forms of expression: racial slurs, hateful religious propaganda, and cross-burning. No other county in the world offers the same kind of protection to offensive speech.

How did this free speech tradition develop? Hate Speech provides the first comprehensive account of the history of the hate speech controversy in the United States. Samuel Walker examines the issue, from the conflicts over the Ku Klux Klan in the 1920s and ...

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Overview

The First Amendment protects even the most offensive forms of expression: racial slurs, hateful religious propaganda, and cross-burning. No other county in the world offers the same kind of protection to offensive speech.

How did this free speech tradition develop? Hate Speech provides the first comprehensive account of the history of the hate speech controversy in the United States. Samuel Walker examines the issue, from the conflicts over the Ku Klux Klan in the 1920s and American Nazi groups in the 1930s, tot he famous Skokie episode in 1977-78, and the campus culture wars of the 1990s.

The author argues that the civil rights movement played a central role in developing this country's strong free speech tradition. The courts were very concerned about protecting the provocative and even offensive forms of expression by civil rights forces. Civil rights groups, therefore, preferred to protect rather than restrict offensive speech—even if it meant protecting racist speech.

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Editorial Reviews

Publishers Weekly - Publisher's Weekly
Walker, professor of criminal justice at the University of Nebraska at Omaha and author of In Defense of American Liberties: A History of the American Civil Liberties Union , offers a readable, insightful chronological history of the United States' unusual policy on hate speech, which in most other countries is prohibited. Though he doesn't ignore legal doctrine, he focuses more on the advocates who shaped the policy. He traces the issue back to the 1920s, when the new ACLU clashed with youthful civil rights groups like the American Jewish Committee and the NAACP over free speech cases in front of the U.S. Supreme Court, which vindicated the ACLU's position in the 1931 Stromberg v. California case. Three years later with the Nazi threat growing in Europe, the ACLU argued that Nazis in America deserved free speech and that has been the source of ACLU--and American--policy since then. In 1952, the high court upheld a group libel law, which major Jewish groups and others opposed, arguing that only education, not law, could stem prejudice. Walker observes that black civil rights advocates, whom hate speech laws might protect, also opposed such laws because they recognized the importance of what he calls ``content-neutral protection for all ideas and groups.'' The rise of campus speech codes since the 1980s (``the most successful effort in American history to restrict hate speech'') Walker chalks up to an increasing campus polarization on racial matters, the domination of ``left-liberal coalitions'' on campus and the weakness there of the ACLU. The author concludes by defending the ACLU position, noting that minorities are often the first to be prosecuted under hate speech rules. (Apr.)
James C. Dixon
This well written and interesting book addresses a subject of importance that has attracted much attention in recent years. Its thesis, clearly stated in the first chapter is that the strong commitment in this country to free speech has resulted from the existence of vigorous and effective advocates. Thus, hate speech is constitutionally protected because "there has never been an equally strong and effective advocate for laws restricting offense speech" (p.15). In arguing his thesis Walker rejects the position of Gerald Rosenberg that as a practical matter court decisions have failed to change social policy. The book is Walker's effort to present persuasive evidence "that the Court has exerted a powerful and successful influence on the law, public policy, and public attitudes" (p.13) and "that the posture of the Court has been shaped by the arguments of the advocacy groups that bring cases before it." (p.13) This position was argued by Joseph F. Kobylka and Lee Epstein in studies of Court decisions on abortion, the death penalty and obscenity. This study of a fourth area supports the Kobylka and Epstein position although written as a history rather than an analytical study. The reader should be aware of Walker's strong commitment to libertarian values and to the American Civil Liberties Union which he served for ten years as a member of the national board of directors. He also served two years as president of the Nebraska affiliate of the ACLU, and was an activist in the civil rights struggle in Mississippi in the 1960s and in the opposition to the Viet Nam War. Despite this personal commitment Walker has succeeded in presenting the history of the hate speech controversies with a reasonable degree of objectivity. Walker presents his thesis as the answer to three significant questions regarding the hate speech controversies in this country between 1920 and the present. First, how and why did public policy regarding hate speech develop as it did, i.e., why has the First Amendment been interpreted as it has? Second, why have American law and policy developed in a very different direction from the law and policy of virtually every other country? Third, given the strong tradition of free speech that had developed in the United States by the 1970s, why did restrictive speech codes becomes so popular on college and university campuses? American hate speech policy is said to have developed differently in this country because civil rights leaders eventually perceived group libel legislation to be a threat to their goal of advancing group rights by seeking the expansion of constitutionally protected individual rights. "Provocative speech was a crucial weapon for the civil Page 161 follows: rights movement and the struggle for racial equality" (p.160). This left restrictions on hate speech without an effective advocate, "a virtual orphan in the political arena" (p. 160). The spread of restrictive speech codes on college and university campuses is also explained in terms of Walker's thesis. Campuses are described as special environments in which the political context has been the reverse of that prevailing in the larger society. Unlike the country at large on college campuses "restrictive codes have been adopted because the idea has a well-organized coalition of advocates who have faced poorly organized opposition in defense of an absolutist position on free speech" (p.16). Having set forth his thesis and major conclusions in Chapter 1, Walker follows with six chapters detailing developments relating to hate speech that occurred in various time periods between 1920 and the present. These chapters "focus on the social context of intergroup relations, on prejudice and discrimination as a political issue, and on the various proposals that have arisen over the years to control hate speech through law" (p.7). Relevant court cases are discussed as is the context from which they arose. The decade 1942-1952 is presented as a key period in the history of hate speech controversies because "the idea of restricting hate speech enjoyed a brief moment of favor" (p.77) for the only time until the rise of support for campus speech codes in the 1980s. Even though the Supreme Court in BEAUHARNAIS V. ILLINOIS (1952) upheld a group libel law, the Court and civil rights groups rejected this approach, and between 1952 and 1978 hate speech was held to be protected by the Constitution. This protection for hate speech was reconfirmed by the decision of the Supreme Court in R.A.V. V. ST. PAUL (1992) . References: Gerald N. Rosenberg, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? (University of Chicago Press, 1991). Lee Epstein and Joseph F. Kobylka, THE SUPREME COURT AND LEGAL CHANGE: ABORTION AND THE DEATH PENALTY ( University of North Carolina Press, 1992). Joseph F. Kobylka, THE POLITICS OF OBSCENITY: GROUP LITIGATION IN A TIME OF LEGAL CHANGE. (Greenwood Press, 1991). BEAUHARNAIS V. ILLINOIS 343 U.S. 250 (1952) R.A.V. V. ST. PAUL, 112 S. Ct. 2538 (1992)
Kermit L. Hall
"An original contribution to the literature not just of hate speech but of modern First Amendment issues generally. . . . This is a fine piece of work; it deserves wide attention."—Kermit L. Hall, editor of The Oxford Companion to the Supreme Court of the United States
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Product Details

  • ISBN-13: 9780803297517
  • Publisher: University of Nebraska Press
  • Publication date: 2/28/1994
  • Pages: 232
  • Product dimensions: 6.00 (w) x 9.00 (h) x 0.49 (d)

Meet the Author

Samuel Walker is Kiewit Professor of Criminal Justice at the University of Nebraska at Omaha. His previous publications include In Defense of American Liberties: A History of the American Civil Liberties Union.
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Table of Contents

Acknowledgments
1 Hate Speech in American History 1
2 Origins of the Hate Speech Issue, 1920-1931 17
3 Free Speech for Nazis? Hate Speech as a National Issue, 1933-1940 38
4 The Hateful and the Hated: The Jehovah's Witnesses and Emergence of a National Policy 62
5 The Curious Rise and Fall of Group Libel in America, 1942-1952 77
6 Free Speech Triumphant: From Beauharnais to Skokie, 1952-1978 101
7 The Campus Speech Codes: Hate Speech in the 1980s and 1990s 127
8 Hate Speech and the American Community 159
Notes 169
Index 207
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