By Cliff Montgomery – Oct. 31st, 2017
A few weeks ago, the Spark ran an article pointing out that – according to leading legal expert Jeremy Waldron – the slurs routinely put forward by modern-day fascists in America may not be protected by the First Amendment. Why? Because their race-baiting and scapegoating may very well constitute group libel.
His view on this point would seem to be pretty solid.
“Jeremy Waldron teaches legal and political philosophy at NYU School of Law,” declares the New York University School of Law website.
“Until recently, he was also Chichele Professor of Social and Political Theory at Oxford University (All Souls College),” adds the NYU School of Law.
“A prolific scholar, Waldron has written extensively on jurisprudence and political theory,” continues the NYU website, “including numerous books and articles on theories of rights, constitutionalism, the rule of law, democracy, property, torture, security, homelessness, and the philosophy of international law.”
In 2009, Prof. Waldron gave a series of lectures at Harvard Law School entitled Dignity and Defamation: The Visibility of Hate. Below, the Spark provides a number of quotes from Prof. Waldron on what may well be considered group libel, and why it still matters in American law:
“In many countries, a different term or set of terms is used by jurists: ‘group libel’ or ‘group defamation.’ Sometimes this is how the legislation describes itself – it is the terminology used, for example, in section 130 of Germany’s Penal Code, prohibiting ‘attacks on human dignity by insulting, maliciously maligning, or defaming part of the population.’
“In other countries, ‘group libel’ and ‘group defamation’ are terms used in judicial doctrine and among lawyers to describe restrictions of the kind we would call hate speech restrictions.
“The term ‘group libel’ also used to be common in the United States, and it was alluded to by the Supreme Court in characterizing a state law that was upheld in 1952 in Beauharnais v. Illinois.
“ ‘Just a little more than a decade ago,’ wrote Harry Kalven in 1964, ‘we were all concerned with devising legal controls for the libeling of groups.’
“Five years before Beauharnais, some scholars at Columbia tried to crystallize debate by publishing a model group libel statute in the Columbia Law Review.
“It is worth remembering, too, that — as its name suggests — the Jewish Anti-Defamation League took as its original mission ‘to stop, by appeals to reason and conscience, and if necessary by appeals to law, the defamation of the Jewish people.’ ”[…]
“James Weinstein says that the idea of group libel is constructed by analogy with the tort of defamation – but, as he notes, this analogy is an oversimplification. Libel may be best known today as a tort, but in the past it has often been understood also as a criminal offense.
“Criminal libel laws came in various flavors. I suppose the best known are the laws against seditious libel — of which, for us, the most notorious example is the Sedition Act, passed by Congress in 1798, making it a criminal offense to publish ‘false, scandalous, and malicious writing’ bringing the president or Congress into disrepute or ‘to excite against them . . . the hatred of the good people of the United States.’
“This spectacularly ill-considered piece of legislation has given criminal libel a bad name in the United States ever since.” […]
“When we do focus on defamation, what is consistently emphasized is the distinction between calumnies that are put about in spoken form, as speech, through gossip, rumor, or oral denunciation, and those that have the more enduring presence of something published ‘by writing, printing, effigy, picture, or other fixed representation to the eye.’
“ ‘What gives the sting to the writing,’ said a New York court in 1931, ‘is its permanence of form. The spoken word dissolves, but the written one abides and “perpetuates the scandal.” ’
“I believe this distinction is helpful for our inquiry. Much of what we call hate speech regulation is not directed at the immediate flare-up of insult and offense. The concept of ‘group libel’ addresses the possibility of racial or religious defamation becoming established as a visible feature of the environment — part of what you can see in real space (or virtual space) as you look around you.
“Until recently, many countries had laws of criminal libel touching ordinary individuals.
“The New Zealand Crimes Act used to specify a year’s imprisonment as the penalty for any ‘matter published, without lawful justification or excuse . . . designed to insult any person or likely to injure his reputation by exposing him to hatred, contempt, or ridicule. . . .’
“Now why, you may ask, would the criminal law concern itself with defamation at all, when there was no public issue of sedition or obscenity or blasphemy? Why not leave it to private law?
“One possibility is that certain forms of defamation might be seen as an attack on public order. It was a matter of keeping the peace, avoiding brawls and so on, in the context of egregious libel flowing over into fighting words. But public order is a complicated idea, and preventing fighting or violence from breaking out — that very narrow sense of keeping the peace — is only one of its dimensions.
“Public order might also comprise society’s interest in maintaining among us a proper sense of one another’s social or legal status.
“In an aristocratic society, this meant securing the dignity of great men or high officials with laws of scandalum magnatum, to protect nobles and great men from outrageous imputations on their breeding, their status, their honor, or their office.
“The United States abolished titles of nobility in 1787, but it did not necessarily abolish that sort of concern for status. A democratic republic might equally be concerned with upholding and vindicating important aspects of legal and social status — only now it would be the elementary dignity of even its non-officials as citizens — and with protecting that status (as a matter of public order) from being undermined by various forms of obloquy.
“And that is what I think is the concern of laws regarding group defamation. They are set up to vindicate public order, not just by pre-empting violence, but by upholding against attack a shared, public sense of the basic elements of each person’s status, dignity, and reputation as a citizen or member of society in good standing — particularly against attacks predicated upon the characteristics of some particular social group.”
