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Opinion of the Court.
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
* For a brief account of this development see Warren, History of the American Bar, 236-239. See also correspondence between Chief Justice Cushing of Massachusetts and John Adams, published in 27 Mass. L. Q. 11-16 (Oct. 1942). Jefferson explained in a letter to Abigail Adams, dated September 11, 1804, that to strike down the Alien and Sedition Act would not "remove all restraint from the overwhelming torrent of slander which is confounding all vice and virtue, all truth and falsehood in the US. The power to do that is fully possessed by the several state legislatures." See Dennis v. United States, 341 U. S. 494, 522, n. 4. See Miller, Crisis in Freedom, 168– 169, 231–232. See also provisions as to criminal libel in Edward Livingston's famous draft System of Penal Law for Louisiana, 2 Works of Edward Livingston 100-108.
5 In eight States the offense is punished as at common law, without legislative enactment. State v. Roberts, 2 Marv. (Del.) 450, 43 A. 252; Cole v. Commonwealth, 222 Ky. 350, 300 S. W. 907; Robinson v. State, 108 Md. 644, 71 A. 433; Commonwealth v. Canter, 269 Mass. 359, 168 N. E. 790; State v. Burnham, 9 N. H. 34; State v. Spear, 13 R. I. 324; State v. Sutton, 74 Vt. 12, 52 A. 116; State v. Payne, 87 W. Va. 102, 104 S. E. 288. Twelve other jurisdictions make "libel" a crime by statute, without defining the term. Ala. Code, 1940, Tit. 14, § 347; Alaska Comp. Laws Ann., 1949, § 65-4-28; D. C. Code, 1940, § 22-2301; Fla. Stat. Ann., 1944, § 836.01; Burns Ind. Stat., 1933, § 10-3201; Miss. Code, 1942, § 2268; Neb. Rev. Stat., 1943, § 28-440; N. J. Stat. Ann., 1939, § 2:146-1; N. C. Gen. Stat., 1943, § 14-47; Page's Ohio Gen. Code, 1939, § 13383; Wis. Stat., 1949, § 348.41; Wyo. Comp. Stat., 1945, § 9-1601. Thus, twenty American jurisdictions punish "libel" as defined by the case-by-case common-law development.
The remaining jurisdictions have sought to cast the common-law definition in a statutory form of words. Two formulas have been popular. Eleven jurisdictions, Illinois among them, have accepted with minor variations the following:
"A libel is a malicious defamation, expressed either by printing, or by signs or pictures, or the like, tending to blacken the memory of one
Opinion of the Court.
and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words-those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utter
who is dead, or to impeach the honesty, integrity, virtue or reputation or publish the natural defects of one who is alive, and thereby to expose him to public hatred, contempt, ridicule, or financial injury." Smith-Hurd Ill. Ann. Stat., 1936, c. 38, § 402. Ariz. Code Ann., 1939, § 43.3501; Ark. Stat., 1947, § 41-2401; Deering's Cal. Penal Code, 1949, § 248; Colo. Stat. Ann., 1935, c. 48, § 199; Ga. Code Ann., 1936, § 26-2101; Idaho Code, 1947, § 18-4801; Smith-Hurd Ill. Ann. Stat., 1936, c. 38, § 402; Mont. Rev. Codes, 1947, § 94-2801; Nev. Comp. Laws, 1929, § 10110; P. R. Codigo Penal, 1937, § 243; Utah Code Ann., 1943, § 103-38-1; cf. Virgin Islands Code, 1921, Tit. IV, c. 5, § 36.
The other version, again with minor variations, has found favor in twelve jurisdictions.
"A libel is a malicious defamation of a person, made public by any printing, writing, sign, picture, representation or effigy, tending to provoke him to wrath or expose him to public hatred, contempt or ridicule, or to deprive him of the benefits of public confidence and social intercourse; or any malicious defamation, made public as aforesaid, designed to blacken and vilify the memory of one who is dead, and tending to scandalize or provoke his surviving relatives or friends."
Iowa Code Ann., 1949, § 737.1; Kan. Gen. Stat., 1935, § 21-2401; Dart's La. Crim. Code, 1943, Art. 740-47; Me. Rev. Stat., 1944, c. 117, §30; Minn. Stat., 1949, § 619.51; Mo. Rev. Stat., 1949, § 559.410; McKinney's N. Y. Laws, Penal Code, § 1340; N. D. Rev. Code, 1943, § 12-2801; Okla. Stat. Ann., 1936, Tit. 21, §771; Purdon's Pa. Stat. Ann., 1945, Tit. 18, § 4412; Williams Tenn. Code, 1934, §§ 11021, 11022; Remington's Wash. Rev. Stat., 1932, § 2424. The remaining nine jurisdictions have definitions of criminal libel which fall into no common pattern. See Conn. Gen. Stat., 1949, § 8518; Hawaii Rev. Laws, 1945, § 11450; Mich. Comp. Laws, 1948, §750-370; N. M. Stat., 1941, §§ 41-2701, 41-2708; Ore. Comp. Laws, 1940, § 23-437; S. C. Code, 1942, § 1395; S. D. Code, 1939,
Opinion of the Court.
ances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. 'Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.' Cantwell v. Connecticut, 310 U. S. 296, 309-310." Such were the views of a unanimous Court in Chaplinsky v. New Hampshire, supra, at 571–572.6
No one will gainsay that it is libelous falsely to charge another with being a rapist, robber, carrier of knives and
§ 13.3401; Vernon's Tex. Stat., 1948, Arts. 1269, 1275; Va. Code, 1950, 18-133.
Our examination of the homogeneity of these statutory definitions of criminal libel might well begin and end with the words "virtue" and "ridicule." Of thirty-two jurisdictions, twelve outlaw statements impeaching the "virtue" of another; eleven of these, and fifteen more-twenty-six in all-prohibit utterances tending to bring another into "public ridicule."
For the common-law definition, applicable in the twenty jurisdictions first noted above, see L. Hand, J., in Grant v. Reader's Digest Assn., 151 F. 2d 733, 735, where he speaks of defining libel "in accordance with the usual rubric, as consisting of utterances which arouse hatred, contempt, scorn, obloquy or shame,' and the like." Cf. Restatement, Torts, § 559, comment (b); Odgers, Libel and Slander (6th ed.), 16-17; Newell, Slander and Libel (4th ed.), 1-2.
Even a cursory examination of these enactments and common-law pronouncements demonstrates that Illinois, in § 224a, was using a form of words which invoked the familiar common law of libel to define the prohibited utterances. The defendant and the Illinois courts, as we have seen, understood this and acted upon it.
6 In all but five States, the constitutional guarantee of free speech to every person is explicitly qualified by holding him "responsible for the abuse of that right." See Pennekamp v. Florida, 328 U. S. 331, 356, n. 5. See Jefferson in Kentucky Resolutions of 1798 and 1799, 4 Elliot's Debates 540-541, and in an undated draft prepared, but not used, for his December 8, 1801, Message to Congress, Library of
Opinion of the Court.
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. There is even authority, however dubious, that such utterances were also crimes at common law. It is certainly clear that some American jurisdictions have sanctioned their punishment under ordinary criminal libel statutes. We cannot say, however, that the question is concluded by history and practice. 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 is a wilful and purposeless restriction unrelated to the peace and well-being of the State.
Illinois did not have to look beyond her own borders or await the tragic experience of the last three dec
Congress Jefferson Papers, Vol. 119, Leaf 20569. In Carlson v. California, 310 U. S. 106, 112, we noted that the statute there invalidated made "no exceptions with respect to the truthfulness and restraint of the information conveyed . . . .”
Compare reports of King v. Osborne in 2 Barn. K. B. 138, 166, 94 Eng. Rep. 406, 425; 2 Swans. 503, n. (c), 36 Eng. Rep. 705, 717; W. Kel. *230, 25 Eng. Rep. 584 (1732). The present Attorney General of England asserted that this case obviated the need of special group libel legislation for Great Britain. See The [London] Times, March 26, 1952, p. 2, col. 4. See also Odgers, Libel and Slander (6th ed.), 369; Tanenhaus, Group Libel, 35 Cornell L. Q. 261, 267-269.
8 One of the leading cases arose in Illinois. People v. Spielman, 318 Ill. 482, 149 N. E. 466 (1925), sustaining a conviction for libel on the members of the American Legion. The authorities are collected and discussed in Tanenhaus, Group Libel, 35 Cornell L. Q. 261, 269– 276.
Opinion of the Court.
ades to conclude that wilful purveyors of falsehood concerning racial and religious groups promote strife and tend powerfully to obstruct the manifold adjustments required for free, ordered life in a metropolitan, polyglot community. From the murder of the abolitionist Lovejoy in 1837 to the Cicero riots of 1951, Illinois has been the scene of exacerbated tension between races, often flaring into violence and destruction.10 In many of these outbreaks, utterances of the character here in question, so the Illinois legislature could conclude, played a significant part." The law was passed on June 29, 1917, at a time when the State was struggling to assimilate vast numbers. of new inhabitants, as yet concentrated in discrete racial or national or religious groups-foreign-born brought to it by the crest of the great wave of immigration, and Negroes attracted by jobs in war plants and the allure
9 See, e. g., Loewenstein, Legislative Control of Political Extremism in European Democracies, 38 Col. L. Rev. 591 and 725; Riesman, Democracy and Defamation, 42 Col. L. Rev. 727, 1085 and 1282; Public Order Act, 1936, 1 Edw. VIII and 1 Geo. VI, c. 6, and 317 H. C. Deb. 1349–1473 (5th ser. 1936) ; 318 H. C. Deb. 49–193, 581-710, 1659-1785, 2781-2784 (5th ser. 1936); 103 H. L. Deb. 741773, 961-972 (5th ser. 1936).
10 See generally The Chicago Commission on Race Relations, The Negro in Chicago, 1-78, and passim (University of Chicago Press, 1922); Research Memorandum No. 5, First Annual Rep. Ill. InterRacial Comm'n (1944).
11 The May 28, 1917, riot in East St. Louis, Illinois, was preceded by a violently inflammatory speech to unemployed workmen by a prominent lawyer of the town. Report of the Special Committee Authorized by Congress to Investigate the East St. Louis Riots, H. R. Doc. No. 1231, 65th Cong., 2d Sess. 11; Chicago Commission on Race Relations, The Negro in Chicago, 75. And see id., at 118-122 for literature circulated by real estate associations and other groups during the series of bombings leading up to the Chicago riots of 1919. For the Commission's comments on the role of propaganda in promoting race frictions, see id., at 589, 638–639.