Beauharnais v. Illinois

What is “group libel”? How is it similar to and different from individual libel? Should the Court recognize a First Amendment exception for “group libel,” as it has for the unprotected categories of “libel,” “fighting words,” and “obscenity”? What would be the costs and benefits of doing so? How would “group libel” be defined? What groups would be included or excluded? Why did Justice Black think Frankfurter’s reliance on Chaplinsky was “misplaced”? What did Justice Douglas mean when he said that the First Amendment is “couched in absolute terms”? Do you agree? What are some exceptions to this absolutist view? Do you agree with Douglas’ “slippery slope” argument: “Today a white man stands convicted for protesting in unseemly language against our decisions invalidating restrictive covenants. Tomorrow a Negro will be hauled before a court for denouncing lynch law in heated terms.”
How did Frankfurter rely upon the precedent of Chaplinsky?  How are the doctrines of “fighting words” in Chaplinsky and group libel in Beauharnais content-based restrictions? Compare the Illinois group libel law in Beauharnais to the actual malice test in New York Times v. Sullivan. How has Beauharnais been emasculated by Brandenburg v. Ohio and Virginia v. Black?
Introduction

Joseph Beauharnais was a member of a white supremacist group known as the White Circle Using derogatory language about African Americans he distributed leaflets to the Chicago government petitioning them to prevent further settlement of Blacks in Chicago. Beauharnais was convicted under an Illinois state law punishing speech that “exposes the citizens of any race, color, creed, or religion to contempt, derision, or obloquy.” Using the ad hoc self-restraintist balancing test (see Glossary), Justice Felix Frankfurter (1882–1965) upheld the Illinois law as a reasonable exercise of the state’s police powers. The dissents of Justices William O. Douglas (1898–1980) and Hugo Black (1886–1971) provide strong justifications for tolerating offensive speech, and warn of the dangers of censorship.

Though Beauharnais has been significantly narrowed, if not completely emasculated by subsequent opinions, it is included in this volume as an example of a group libel law, which many European countries have adopted to protect minorities. Such laws punish the defamation of groups based on race, creed, color, age, sexual orientation, and/or place of national origin. Some European group libel laws punish Holocaust denial. Some of today’s critics of “hate speech” would like to carve out a group libel exception to the First Amendment to protect the equal dignity of oppressed groups in the marketplace of ideas. For this reason, the dissents of Black and Douglass remain relevant.

—Joseph R. Fornieri

Source: 343 U.S. 250, https://www.law.cornell.edu/supremecourt/text/343/250.


  1. JUSTICE FRANKFURTER delivered the opinion of the Court.

The petitioner was convicted upon information in the Municipal Court of Chicago of violating § 224a of Division 1 of the Illinois Criminal Code, Ill.Rev.Stat.1949, c. 38, § 471. He was fined $200. The section provides:

It shall be unlawful for any person, firm, or corporation to manufacture, sell, or offer for sale, advertise or publish, present or exhibit in any public place in this state any lithograph, moving picture, play, drama, or sketch, which publication or exhibition portrays depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, color, creed, or religion which said publication or exhibition exposes the citizens of any race, color, creed, or religion to contempt, derision, or obloquy or which is productive of breach of the peace or riots. . . .

Beauharnais challenged the statute as violating the liberty of speech and of the press guaranteed as against the states by the due process clause of the Fourteenth Amendment, and as too vague, under the restrictions implicit in the same clause, to support conviction for crime. The Illinois courts rejected these contentions and sustained defendant’s conviction. We granted certiorari[1] in view of the serious questions raised concerning the limitations imposed by the Fourteenth Amendment on the power of a state to punish utterances promoting friction among racial and religious groups.

The information, cast generally in the terms of the statute, charged that Beauharnais “did unlawfully . . . exhibit in public places lithographs, which publications portray depravity, criminality, unchastity, or lack of virtue of citizens of Negro race and color and which exposes [sic] citizens of Illinois of the Negro race and color to contempt, derision, or obloquy.” The lithograph complained of was a leaflet setting forth a petition calling on the mayor and City Council of Chicago “to halt the further encroachment, harassment, and invasion of white people, their property, neighborhoods, and persons, by the Negro. . . .” Below was a call for “one million self-respecting white people in Chicago to unite,” with the statement added, “If persuasion and the need to prevent the white race from becoming mongrelized by the negro will not unite us, then the aggressions . . . rapes, robberies, knives, guns, and marijuana of the negro, surely will.” This, with more language, similar if not so violent, concluded with an attached application for membership in the White Circle League of America, Inc.

The testimony at the trial was substantially undisputed. From it the jury could find that Beauharnais was president of the White Circle League; that, at a meeting on January 6, 1950, he passed out bundles of the lithographs in question, together with other literature, to volunteers for distribution on downtown Chicago street corners the following day; that he carefully organized that distribution, giving detailed instructions for it; and that the leaflets were in fact distributed on January 7 in accordance with his plan and instructions. The court, together with other charges on burden of proof and the like, told the jury, “If you find . . . that the defendant, Joseph Beauharnais, did . . . manufacture, sell, or offer for sale, advertise, or publish, present or exhibit in any public place the lithograph . . . , then you are to find the defendant guilty.” He refused to charge the jury, as requested by the defendant, that, in order to convict, they must find “that the article complained of was likely to produce a clear and present danger of a serious substantive evil that rises for above public inconvenience, annoyance, or unrest.” Upon this evidence and these instructions, the jury brought in the conviction here for review. . . .

Libel of an individual was a common-law crime, and thus criminal in the Colonies. Indeed, at common law, truth or good motives was no defense. In the first decades after the adoption of the Constitution, this was changed by judicial decision, statute, or constitution in most states, but nowhere was there any suggestion that the crime of libel be abolished. Today, every American jurisdiction—the forty-eight states, the District of Columbia, Alaska, Hawaii, and Puerto Rico—punish libels directed at individuals. “There are certain well-defined and narrowly limited classes of speech the prevention and punishment of which has never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words.” Such were the views of a unanimous Court in Chaplinsky v. New Hampshire.

No one will gainsay that it is libelous falsely to charge another with being a rapist, robber, carrier of knives and guns, and user of marijuana. The precise question before us, then, is whether the protection of “liberty” in the due process clause of the Fourteenth Amendment prevents a state from punishing such libels—as criminal libel has been defined, limited, and constitutionally recognized time out of mind—directed at designated collectivities and flagrantly disseminated. . . . But if an utterance directed at an individual may be the object of criminal sanctions, we cannot deny to a state power to punish the same utterance directed at a defined group unless we can say that this a willful and purposeless restriction unrelated to the peace and wellbeing of the state.

[History of racial strife in Illinois.]

. . . In the face of this history and its frequent obligato of extreme racial and religious propaganda, we would deny experience to say that the Illinois legislature was without reason in seeking ways to curb false or malicious defamation of racial and religious groups, made in public places and by means calculated to have a powerful emotional impact on those to whom it was presented. “There are limits to the exercise of these liberties [of speech and of the