A Perfect Storm: Race, Ethnicity, Hate Speech, Libel and First Amendment Jurisprudence
Michael Cole · Scholar Commons (University of South Carolina) · 2020
This Article explores the intersection of critical race theory, First Amendment jurisprudence, hate speech and defamation tort law. Consider this hypothetical: Assume that a state statute exists to create a cause of action in tort based on “group libel” theories for negative ethnic and racial utterances. The Article addresses whether such a statute could survive a First Amendment freedom of speech challenge. In addressing the issue, the Article considers blatant hate speech – as opposed to other forms of ethnic or racial utterances, such as pseudo-scientific racism or subtle-yet-inaccurate media portrayals that perpetuate harmful racial and ethnic stereotypes – that could be classified as group libel. The Article explores the normative policy implications that may persuade a court in deciding whether hate speech utterances should constitute group libel in a manner consistent with the First Amendment. It then provides a roadmap for the legal arguments that would likely apply. In addressing these arguments, the Article offers some proposed language to state legislatures in an effort to comport with constitutional requirements. Based on the proposed language, a state legislature may attempt to draft a statute that classifies blatant hate speech as group libel in a way that comports with First Amendment analysis to overcome an overbreadth challenge. However, as discussed in the Article, the relevant jurisprudence would still likely reveal various infirmities in the statute. This analysis, from a legal realism perspective, reveals various flaws in our norms and doctrines, which improperly deemphasize the inequities of institutional racism and xenophobia as well as the insidious impact of hate speech.