The Illinois law at issue in Beauharnais made it a crime to publish or exhibit material portraying “depravity, criminality, unchastity or lack of virtue of a class of citizens, of any race, color, creed or religion.” In the years following the Supreme Court decision, group libel laws were widely debated. A legal philosopher who preceded Waldron on the faculty of NYU’s law school, Edmond Cahn, addressed such laws in a 1962 talk. He pointed out that if they were enforced as written:
The officials could begin by prosecuting anyone who distributed the Christian Gospels because they contain many defamatory statements not only about Jews but also about Christians; they show Christians failing Jesus in his hour of deepest tragedy. Then the officials could ban Greek literature for calling the rest of the world “barbarians.” Roman authors would be suppressed because when they were not defaming the Gallic and Teutonic tribes they were disparaging the Italians. For obvious reasons, all Christian writers of the Middle Ages and quite a few modern ones could meet a similar fate. Even if an exceptional Catholic should fail to mention the Jews, the officials would have to proceed against his works for what he said about the Protestants and, of course the same would apply to Protestant views on the subject of Catholics. Then there is Shakespeare, who openly affronted the French, the Welsh, the Danes. . . . Finally, almost every worthwhile item of prose and poetry by an American Negro would fall under the ban because it either whispered, spoke, or shouted unkind statements about the group called “white.” Literally applied, a group-libel law would leave our bookshelves empty and us without desire to fill them.
Proponents of such laws contended that concerns about their vagueness and breadth were not warranted because officials would show good sense and enforce them only in cases like that of Mr. Beauharnais, a white supremacist who had distributed leaflets defaming African-Americans. The difficulty with that argument was that it required trust in the officials who enforce such laws, rather than in the laws themselves.
Waldron cites a number of the arguments against group defamation laws that he attributes to such well-known advocates of First Amendment freedoms as Anthony Lewis, longtime columnist for The New York Times; Ronald Dworkin, the renowned legal philosopher; and Robert Post, dean of Yale Law School. A large part of Waldron’s book is taken up with his efforts to refute the views that he ascribes to these antagonists. Yet Waldron passes over lightly what he labels the “distrust of government” argument, even though he acknowledges the view of Geoffrey Stone of the University of Chicago Law School that it “underlies all First Amendment concerns and explains why many American legal scholars are so opposed to hate speech laws.”
Waldron concedes that American history is replete with examples of laws restricting speech that were implemented abusively, citing the 1798 Sedition Act, the World War I experience (by which he means the various federal and state espionage acts), and the World War II-era Smith Act. Yet in the two sentences that follow these examples, he dismisses their importance as precedents by asking, “But why would anyone think this was true of hate speech legislation, or laws prohibiting group defamation? Why is this an area where we should be particularly mistrustful of our lawmakers?” His answer is that this is an area where we should be especially trusting of government because hate speech laws are examples of “a legislative majority bending over backwards to ensure that vulnerable minorities are protected against hatred and discrimination.”
It is not a response that would satisfy many of the First-Amendment proponents with whom Waldron has his imaginary debates. Laws regulating speech, no matter how well motivated the lawmakers, must place a great deal of discretion in law enforcers. That is because there is an infinite number of ways to express any thought. New ways of conveying any point of view can readily be made up on the spot. It is easy to use code words, or to come up with nonverbal forms of expression that make a point (think of the football fan who threw the banana on the field where an Italian player of African descent was playing). The law may forbid portrayals of depravity, criminality, unchastity, or lack of virtue, but it is unnecessary for anyone imputing those characteristics to members of a given race, color, creed, or religion to use any of those words in their communications. It will always be up to law enforcers to interpret whether the actual words used violate the statute.