No, the First Am. does not protect libel and the statute was not
overly broad. Frankfurter (a German-Jewish émigré), writing for the
majority, holds that libelous statements that defame individuals as
well as groups are unprotected by the First Am. (although the
Illinois statute allowed D to show his statements were true as an
affirmative defense to a liable charge—but this is something totally
separate from the First Am. issue). Why is libel unprotected?
Because, like “fighting” words, obscenity, etc., libel inflicts
injury or tends to incite an immediate breach of the peace.
Furthermore, libel has such slight social value in terms of revealing
truth that any benefit from constitutionally protecting libelous
speech is clearly outweighed by the social interest in order and
morality. “There are certain well-defined narrowly limited classes
of speech, the prevention and punishment of which have never been
though to raise any Constitutional problem. These include the lewd
and obscene, the profane, the libelous, and the insulting or
‘fighting’ words—those which by their very utterance inflict injury
or tend to incite an immediate breach of the peace. It has been well
observed that such utterances are no essential part of any exposition
of idea, and are of such slight social value as a step to truth that
any benefit that may be derived from them is clearly outweighed by
the social interest in order and morality. ‘Resort to epithets or
personal abuse is not in any proper sense communication of
information or opinion safeguarded by the Constitution, and its
punishment as a criminal act would raise no question under that
instrument [the Constitution]’.”
1. Dave says this is the heart of the case. Incidentally, precisely
because of this discussion re the obscene and hate speech, Dave says
Beauharnais has gained renewed attention today. For example,
anti-obscenity advocates, such as Catherine MacKinnon and Andrea
Dworkin, cite Beauharnais to support their argument that the First
Am. does not protect pornography.
b. Because libelous utterances are not protected by the First Am.,
it is not necessary to reach the issue raised by D’s appeal that the jury be
instructed that, in order to convict, they must find that the
publication complained of was likely to produce a “clear and present
danger” of a substantial evil.
c. The statute is not void for vagueness.
d. The states can define “libel” however they wish without
raising a constitutional issue, so long as the definition is “related
to the peace and well-being of the state.” Here, the Illinois libel
law was passed in 1917, at a time when the State was struggling to
assimilate new inhabitants, from foreign-born immigrants to blacks
looking for work in the North. In the face of Illinois’ history of
extreme racial and religious propaganda, the libel law was clearly
related to the peace and well-being of the state.
e. “We are warned that the choice open to the Ill. legislature
here may be abused, that the law may be discriminatorily enforced;
prohibiting libel of a creed or of a racial group, we are told, is
but a step from prohibiting libel of a political party. Every power
may be abused, but the possibility of abuse is a poor reason for
denying Ill. the power to adopt measures against criminal libels
sanctioned by centuries of Anglo-American law.” Besides, the U.S.
Sup. Ct. can strike down any restriction of speech that hides behind
the guise of punishing libel.
f. “It may well be argued, and weightily, that this legislation
will not help matters; that tension and on occasion violence between
racial and religious groups must be traced to causes more deeply
embedded in our society…This being so, it would be out of bounds for
the judiciary to deny the legislature a choice of policy, provided it
is not unrelated to the problem and not forbidden by some limitation
on the State’s power…”
1. Dave says Frankfurter was hesitant of judicial activism, and
deferred to the judgment of the state legislatures (“for better or
for worse”), as long as their laws were not wholly irrational.
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