Waldron’s book performs a useful service in defining the harm that is done by hate speech as an assault on dignity. He differentiates this from speech that causes offense, pointing out that offense is a subjective reaction that varies from person to person and “is not a proper object of legislative concern.” The dignity that should be protected by law, he says, involves the basic social standing of individuals within society. Accordingly, he favors laws such as the statute upheld by the United States Supreme Court in 1952 in the case of Beauharnais v. Illinois, which punished group libel. Though Beauharnais has never been explicitly overturned, it has long been recognized that it is no longer good law. It could not survive present-day scrutiny given the Supreme Court’s subsequent decisions in Times v. Sullivan (1964), which subjected libel laws to First Amendment standards; and in Brandenburg v. Ohio (1969), which held that even racist incitement to violence could only be punished if the circumstances made violence imminent.
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.”