‘‘Group libel’’ is a term used in civil defamation law and in criminal libel statutes. In civil defamation suits and criminal libel prosecutions, the group libel concept is often in tension with First Amendment values and principles.
In the civil defamation context, the phrase group libel refers to the problem posed by defamatory statements that do not single out any one individual by name, but rather refer to a group of individuals, such as members of the police force, the law faculty, or Hispanic voters. The general rule is that no valid action for libel or slander (the twin torts that comprise defamation) exists for the publication of a general defamatory statement about a large group or class of persons. This common-law rule is grounded in the rationale that such a general condemnation could not reasonably be construed as targeting each individual member of the group, and the disparagement is too diffuse to create a realistic likelihood of reputational injury to any individual member.
Similarly, under the common law of defamation, mere insults or epithets are not actionable. The rationale is that such insulting language, however crude or indecorous, is endemic to social life, and the law cannot be expected to provide a remedy for all such verbal slights. The common-law view is also buttressed by the notion that the use of such insulting language reflects more poorly on the speaker than the victim of the verbal attack.
This common-law principle is in turn enforced by First Amendment standards that shelter rhetorical hyperbole and the expression of opinion from defamation liability. First Amendment standards established in Supreme Court decisions such as Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986), and Milkovich v. Loraine Journal, 497 U.S. 1 (1990), require a ‘‘false statement of fact’’ to support a defamation action. Because group slurs will often be expressions of hyperbole or opinion, attempts to predicate civil liability on such group insults will violate the First Amendment.
As an alternative to civil liability as a means of dealing with racial, ethnic, or religious disparagement, some states have, over the years, enacted criminal libel laws aimed at creating criminal sanctions for group libel. In a 1952 decision, Beauharnais v. Illinois, 343 U.S. 250 (1952), the Supreme Court upheld the constitutionality of the Illinois criminal group libel statute. The Beauharnais case, however, predated much of modern First Amendment Law. This includes the body of law placing First Amendment limits on civil liability for defamation emanating from New York Times Co. v. Sullivan, 376 U.S. 254 (1964), and cases that protect racist speech under the First Amendment unless the speech meets the ‘‘incitement’’ standard of cases such as Brandenburg v. Ohio, 395 U.S. 444 (1969), or the ‘‘true threat’’ standard of cases such as Virginia v. Black, 538 U.S. 343 (2003).
RODNEY A. SMOLLA
References and Further Reading
Cases and Statutes Cited