Page 14 - Delaware Lawyer - Fall 2019

FEATURE
headline: “Preserve and Protect White Neighborhoods!” 11 The leaflets declared that white neighborhoods needed protec- tion from “the constant and continuous invasion, harassment and encroachment by the negroes.” Beauharnais called for one million white people in the city of Chicago to oppose President Harry Tru- man’s Civil Rights program. Beauharnais warned of efforts to amalgamate the black and white races with the object of mon- grelizing the white race, bemoaning the “rapes, robberies, knives, guns and mari- juana of the negro.”
Beauharnais was convicted of violating an Illinois law prohibiting hate speech.12 The law made it a crime to publish mate- rial which “portrays depravity, criminal- ity, unchastity, or lack of virtue of a class of citizens, of any race, color, creed or religion” or which “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.” The Supreme Court accepted re- view, and rejected the claim of Beauhar- nais that his racist leaflets were protected under the First Amendment.
Justice Felix Frankfurter, who was Jewish, plainly had in mind Hitler’s Ho- locaust and the Nazi use of group libel against Jews when he wrote the opinion affirming Beauharnais’ conviction, refer- ring to “the tragic experience of the last three decades.” 13 But “Illinois did not have to look beyond her own borders,” Justice Frankfurter observed, “to con- clude that willful purveyors of falsehood concerning racial and religious groups promote strife and tend powerfully to ob- struct the manifold adjustments required for free, ordered life in a metropolitan, polyglot community.” Illinois had its own long history of racist violence. In 1837, Elijah Parish Lovejoy, an abolition- ist Presbyterian minister, journalist and newspaper editor, was brutally murdered by a pro-slavery mob in downstate Alton, Illinois, in an attack on a warehouse to destroy Lovejoy’s printing press and abo- litionist publications. In 1951, there were riots in Cicero, Illinois, a suburb just west of Chicago. (Cicero would again be the center of violent racial tensions when Martin Luther King marched there,
Today, the Supreme Court has largely supplanted the order and morality theory with the marketplace theory, that democracy is subordinate to free speech.
bringing the Civil Rights Movement to the North).
Echoing the reasoning of Justice Mur- phy in Chaplinsky, Justice Frankfurter concluded, “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 legisla- ture was without reason in seeking ways to curb false or malicious defamation of racial and religious groups, made in pub- lic places and by means calculated to have a powerful emotional impact on those to whom it was presented.”
Under the reasoning in Beauharnais, drawing its sustenance from the order and morality theory of Chaplinsky, the suprem- acist speech of the alt-right and Ku Klux Klan in Charlottesville could be entirely banned. For many, inside Charlottesville and around the country, the reasoning of Justice Frankfurter in Beauharnais was right on target. As the article in this is- sue written by Alex Tsesis demonstrates, the Beauharnais approach is the govern- ing regime in many other nations today, including Great Britain, Spain, Germany, Canada, France, Israel, the Netherlands, Finland, Sweden and Norway.
American Constitutional law, however, did not settle on the Beauharnais reason- ing, but instead moved in a different di- rection. Nadine Strossen’s article, which recalls the march of Illinois Nazis through Jewish neighborhoods in Skokie, Illinois, a march that the Supreme Court held was
protected by the First Amendment, punc- tuates the point. Plainly, by the time of the Skokie litigation, the law had moved. But had it moved the right way?
The ‘Marketplace Theory’ of Free Speech
In a series of landmark decisions be- ginning in the 1960s and stretching through today, the Supreme Court has largely supplanted the order and morality theory with the marketplace theory. The marketplace theory is grounded in the no- tion that democracy is subordinate to free speech. The test of truth should be the power of a thought to win in the competi- tion of the market. The marketplace met- aphor, which can be traced back at least as far as John Milton and his essay Ar- eopagetica,14 will forever be most power- fully represented in the American consti- tutional tradition by the words of Justice Holmes in his famous dissenting opinion in Abrams v. United States.15 Holmes ad- monished that “we should be eternally vigilant against attempts to check the ex- pression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and press- ing purposes of the law that an immedi- ate check is required to save the country.” Holmes tells us to tolerate speech we loathe, speech we are convinced is fraught with death. It is the marketplace, not law, which will decide the value of speech. The government may intervene through the force of law only if there is an immedi- ate need to check the speech to save the country.
The Holmes position would be re- inforced by Justice Louis Brandeis, in a 1927 concurring opinion in Whitney v. California.16 Justice Brandeis’ opinion in Whitney argued that efforts to stamp out dangerous speech inexorably back- fire. In driving the speech we fear and loathe underground, he argued, we give it increased strength. The framers of the Constitution, he wrote, “knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repres- sion; that repression breeds hate; that hate menaces stable government; that the path
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