Group Defamation

International Legal Response after World War II

Though long of concern, group defamation came to legal prominence mainly after the events of World War II. Encounters with ethnic genocide and abhorrence of racial animosity, coupled with the emphasis on human rights, produced various international accords. Article 4 of the Convention on the Elimination of All Forms of Racial Discrimination punishes the dissemination of racist materials and incitement to racial hatred and discrimination, while article 20 of The Covenant on Civil and Political Rights also condemns incitement to national and religious hostility or violence. Several countries, such as the United States, have entered reservations to these treaties, arguing, for example, that their own constitutions or statutes protect free speech without these conventions' overreach. Several declarations promulgated by the United Nations [Page 679]Educational, Scientific and Cultural Organization (UNESCO) have similarly condemned discriminatory propaganda, but they lack the force of law. And the support by the European Commission on Human Rights for the British law punishing only blasphemy against Christianity, like the punishment by most Islamic countries for apostasy, may further undermine such conventions.

National Legal Approaches

At the national and local level, statutes have had limited success. In the United States, several states first adopted, then repealed group libel laws or extended existing criminal statutes, while courts declared some formulations unconstitutional. Building on Supreme Court standards, the debate has often focused on whether some “clear and present danger” must be shown, or whether intent is a necessary element of an unprotected utterance. The Columbia Law Review model statute embraces a strict liability provision, while others would require at least a showing of recklessness or negligence. Unlike private defamation, many statutes emphasize public prosecution rather than leaving matters to individual suit. Case law has upheld some actions combating the use of racial epithets or insulting brand names, but the Supreme Court, in R.A.V. v. City of St. Paul, Minn. (505 U.S. 377, 1992), disallowed prosecutions for cross-burning where the statute was aimed mainly at the content of the speech rather than endangerment.

American universities have adopted various hate speech codes. Courts have repeatedly struck down these codes and other rules, since they see them as vague, and either overor underinclusive. As in society at large, if a student were to question biological claims for racial equality or the prevalence of criminal characteristics among a certain population, or employ a term that is subjectively offensive to some members of a group, there is no broad legal agreement as to whether the case should be decided on the basis of the content or the effect of the utterance.

...