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Note: This is an unedited rush transcript. Please check any quotations against the audio recording.

Nico Perrino: Welcome back to So To Speak, the free speech podcast where every other week we take an uncensored look at the world of free expression through the law, philosophy, and stories that define your right to free speech. I’m your host, Nico Perrino. Today we’re talking about hate speech.

We know that the First Amendment protects hate speech. But has it always done so? And how have civil rights groups in particular responded when their members are the target of hate speech. To help us answer those questions, we’re joined by University of Iowa law professor, Samantha Barbas, who is out with a new law review article titled “How American Civil Rights Groups Defeated Hate Speech Laws.” Professor Barbas, welcome back onto the show.

Samantha Barbas: Thank you so much for having me. It’s great to be here.

Nico Perrino: It’s been four years since I had you come on the podcast to talk about Morris Ernst, the free speech renegade. You were recently out with a book at that time. I’m currently working on a book that’s looking at 20th century civil libertarians, not really looking at Morris Ernst’s generation, more the generation that came after him. But I’m finding Morris Ernst popped up a lot –

Samantha Barbas: I’m sure.

Nico Perrino: In the course of my research. I’m actually working on a chapter right now that looks at the generation prior to Morris Ernst and focusing on an individual named Theodore Schroeder. I don’t know if that name rings a bell for you.

Samantha Barbas: Yeah, yeah.

Nico Perrino: Largely forgotten in free speech circles, but I think significant insofar as his conception of free speech and the First Amendment was broader than –

Samantha Barbas: Oh, very much.

Nico Perrino: Everyone in his day, but is more consistent with how many civil libertarians view the First Amendment now. He won out in the end, though. He died very kind of depressed and despondent and feeling very sad that he wasn’t able to accomplish for free speech, the First Amendment, and also, uniquely, evolutionary psychology, which is something he was an early proponent of. But largely, his conception of free speech won the day.

Samantha Barbas: Yeah, yeah.

Nico Perrino: So, I’ve been spending some time with your book as well to try and get a sense of the zeitgeist, the ethos in the early 20th century. But let’s come to your article here that was published right in June in the Journal of Free Speech Law.

Samantha Barbas: Yes.

Nico Perrino: Why did you decide to write it?

Samantha Barbas: Yeah. So, this article is part of a larger book project, and that book is actually forthcoming.

Nico Perrino: Oh, congratulations.

Samantha Barbas: And thank you very much. And it’s on the history of hate speech law in America. More specifically, the book is trying to answer the question: Why are there no hate speech laws in America of the kind that exist pretty much everywhere else in the world? Why’d the U.S. take this exceptional path?

Nico Perrino: And has it always been that way? Did hate speech laws exist at some point in American history?

Samantha Barbas: Yes, they did. Yeah. And it’s not widely known that we did have hate speech laws for a period of time. I would say roughly 1915 to the mid 1940s, 1950. And those laws were widely accepted. At the time, they were actually consistent with the First Amendment. But then I think both law and culture turned away from the idea of hate speech regulation around 1950 or so.

Nico Perrino: Well, let’s talk about that. You said that hate speech laws were viewed as largely consistent with the First Amendment. Pretty much everything that might be deemed censorship today was viewed as consistent with the First Amendment back then.

Samantha Barbas: Right.

Nico Perrino: Most Americans don’t realize that the Supreme Court never struck down free speech restriction on First Amendment grounds, I believe, until 1931, when it did so twice in Stromberg and Near. And it was the first time that it struck down a federal speech restriction until 1965 in the Lamont case. So, for most of American history, pretty much anything goes as far as the Supreme Court was concerned.

Samantha Barbas: Right.

Nico Perrino: So, why 1915? What happened that year? In your book, you talk about the release of the D.W. Griffith film, The Birth of a Nation. Did that have something to do with it?

Samantha Barbas: Yeah. So, this is the World War I era. And during that time, we see the Great Migration, which you may have heard of. Right? African Americans in the south were moving north to work in munitions plants and other war-related industries. And the diversification of the population led to racial tensions, race riots. And there were some officials and legislators who thought the way to do away with this tension was to pass laws that prohibited hate speech. And so, we get a number of hate speech laws. Illinois, some other states had them.

Nico Perrino: Under their state laws or usually municipal codes or a little bit of both?

Samantha Barbas: Both state laws and municipal codes. And then in the middle of this, we get the release of the film The Birth of a Nation, which was in some ways a cinematic innovation made by a filmmaker named D.W. Griffith. It was technologically very sophisticated at a time when movies were just a nascent medium. Right? And so, Griffith used all kinds of techniques, editing techniques, close-ups and so forth.

But this film was a piece of hate speech. Right? I mean D.W. Griffith was a notorious racist. This film described Reconstruction as a tragedy. It valorized the Ku Klux Klan. And this was shown all across the country. And there were many, again, legislators and officials who noticed that this was provoking violence and thought, well, one way to eradicate this is to censor or ban this film.

Nico Perrino: But the film was also shown in the White House. Right? Didn’t President Wilson say it was history written in lightning?

Samantha Barbas: Yeah, yeah, yeah.

Nico Perrino: So, Wilson himself wouldn’t have banned it presumably. So, it was the states that were more concerned with racial unrest, for example, that did.

Samantha Barbas: Yeah. And importantly, they were not concerned about protecting the dignity of African Americans or the reputations of a racially –

Nico Perrino: Which is often the concern of hate speech codes today to the extent they exist on campus and elsewhere.

Samantha Barbas: Yes, exactly.

Nico Perrino: At this time, they were more concerned with domestic tranquility, one might say.

Samantha Barbas: Exactly, yeah. They wanted to prevent violent breaches of the peace.

Nico Perrino: So, for civil rights groups that existed at the time, you write that they advocated for these codes. The NAACP was one group that did so against the opposition of its chairman, Joel Spingarn, if I have that name correctly, who was reluctant to call for the banning of the film. But others felt, “They had no choice but to endorse censorship.” Why?

Samantha Barbas: Yeah, yeah. So, the NAACP, a venerable civil rights organization that started in 1909 by progressives – And this is Progressives with a capital P, the Progressive Movement, individuals who believed that we needed more legislation and regulation of social conditions to end poverty and things like child labor.

Nico Perrino: Kind of a hard group to define.

Samantha Barbas: Yeah.

Nico Perrino: They also weren’t too big, if I’m understanding them correctly, on civil liberties necessarily and individual autonomy, the idea being that those would be impediments to social reform and in particular economic reform, many of those reforms being struck down on liberty of contract grounds in the courts. They would eventually come around to free speech during World War I when all the dissidents were getting thrown in jail, the 2,200 prosecutions under the Espionage Act. But at this time, they would have been largely oblivious or apathetic or maybe even supportive of free speech suppression or some speech suppression, I should say.

Samantha Barbas: Yeah, some of them were. Although, there were some NAACP leaders who were concerned about things like the suppression of birth control information and the quashing of the labor movement, and they were actually in favor of an expansive view of freedom of speech. So, there was this tension within the leadership when it came to Birth of a Nation. Are we going to allow this film to be shown and to portray this horrible message of hatred and violence, or are we going to call for the censorship of this movie which may not cast us in the best light among advocates of free speech?

And so, there was a real kind of soul-searching among some of these leaders that I described, W.E.B. Du Bois among leaders. And he came to the conclusion: Well if African Americans had the opportunity to make movies, to talk back to this racist film, then perhaps we could let this go and try to engage in counter speech. But because it’s very difficult at this time to make a movie – that’s just not something that the average person can do – we’re gonna call for censorship. We are going to go throughout the country and ask legislatures and mayors and other officials to legally ban this film, prevent its showing.

Nico Perrino: The NAACP’s publication, The Crisis, wrote, “If Negros and their friends were free to answer in the same channels by the same methods in which the attack is made, the path would be easy, but poverty, fashion, and color prejudice preclude this. We have therefore sought vigorously through censorship to stop their slander of a whole race.” It’s an argument that I guess makes sense on its face. Right? What’s wrong with it?

Samantha Barbas: Well, the NAACP soon learned what was wrong with that strategy. It didn’t work out well for them. It completely backfired, as a matter of fact.

Nico Perrino: Did they get some showings of the film censored, in fact? Were they successful in their aims, even if the outcomes weren’t the ones that they anticipated?

Samantha Barbas: Yeah. The film was banned in a few places. But D.W. Griffith was very strategic. He would go to court and say his free speech rights were being violated, and he would get the bans reversed. So, there were these bans, but they didn’t last for very long.

Nico Perrino: And he made a movie, right, about his censorship called Intolerance?

Samantha Barbas: Yeah.

Nico Perrino: Which made himself out to be more or less a free speech martyr, which in a certain way he was ‘cause he was censored.

Samantha Barbas: Yeah. But again, that’s an example of this attempt at regulation backfired. It gave Griffith an opportunity and a platform to vaunt himself, as you say, as a free speech martyr and to gain even more of a following.

Nico Perrino: And so, the leaders of the NAACP recognized this and then changed their tactics presumably, let the film be shown, didn’t argue for censorship, didn’t argue for the passage of these municipal codes that would allow for that censorship.

Samantha Barbas: I think by the time that the NAACP realized how badly their campaign had failed, it was too late. The film was shown everywhere. It was a massive success. It was actually the biggest box office blockbuster in history.

Nico Perrino: Oh, geez.

Samantha Barbas: Yeah. And so, after that, they decided calling for censorship of hate speech is not a great strategy, and instead they adopted tactics like counter speech. The Birth of a Nation was actually reissued. It was made into a sound film. It was made into a color film. Right? There were all these rereleases of the movie. But every time, the NAACP did not attempt to legally suppress the film. Instead, they would boycott the film. They would picket. They would ask theater owners not to show it, but they never sought official regulation.

Nico Perrino: How much of the success of The Birth of a Nation could be attributable to the censorship? I know if you look at the 100 greatest films of the 20th century, it’s up there in the Top 5. But how much of that is actually cinematic genius that you were referencing earlier, and how much of that can be disentangled from the free publicity that the censorship of the film created?

Samantha Barbas: Yeah. I think film critics do agree that this was very sophisticated for its time in terms of the cinematography, but this free publicity made it that commercial success. People went to see the film because they wanted to know what was so controversial and what people were clamoring to suppress.

Nico Perrino: So, that forbidden fruit, right?

Samantha Barbas: Exactly.

Nico Perrino: Today we call this the Streisand Effect.

Samantha Barbas: Right, right, right.

Nico Perrino: Speaking to Barbra Streisand’s effort to have photographs or her home that just so happened to be near a coastal erosion zone in California suppressed on the internet. And I think six people had looked at the photo when she issued the takedown notice. And since then, she now has a free speech term coined for her. And hundreds of thousands, if not millions, of people have probably seen that photo. But we didn’t have Barbra Streisand in 1915 to describe this effect.

The next story you move on to is the story of Henry Ford, the famous creator, founder of the Ford Automobile Company. In the 1920s, he created a really antisemitic newspaper called The Dearborn Independent. And you write that at its peak the newspaper reached hundreds of thousands of readers with articles attacking jazz as a “Jewish creation” and accusing Jews of corrupting baseball.

This presented another opportunity for civil rights groups, in this case Jewish civil rights groups and liberties groups, to come up with a strategy for how they were gonna address this. Was their approach initially to Henry Ford’s publication similar to the NAACP’s approach with The Birth of a Nation?

Samantha Barbas: Yeah, absolutely. So, The Dearborn Independent, as you suggested, was noxious. It had these horrific articles and features. And they were backed by Henry Ford, who was really seen as a hero in America in the 1920s. So, the three major Jewish civil rights groups – the American Jewish Committee, the American Jewish Congress, and the Anti-Defamation League – really had to figure out how to deal with the threat that was posed by this publication.

So, initially, they did seek hate speech legislation. But then the president of the American Jewish Committee, Louis Marshall, who was a renowned civil rights lawyer, came to the realization again that these laws will ultimately hurt the cause of civil rights because they will probably be used against the speech of civil rights activists.

Nico Perrino: But he initially threatened a libel lawsuit, right, and then he changed his mind?

Samantha Barbas: He initially supported hate speech legislation. And then a man named Aaron Sapiro, who had been defamed by Ford, brought a libel lawsuit. Marshall intervened and ultimately got Ford to settle the lawsuit if Ford promised to stop the publication of The Dearborn Independent and apologize for his antisemitic speech.

Nico Perrino: I was reading your article here, and I was struck by the Anti-Defamation League’s mission statement. I’m not sure if it’s still their mission statement. I had meant to look before we hopped on this podcast, but I didn’t have a chance to do so. The ADL’s mission at the time was to “stop by appeals to reason and conscience and, if necessary, by appeals to law to stop the defamation of the Jewish people.”

So, hate speech code support, one might say, was baked into the mission statement of this organization near its founding. So, Louis Marshall intervened in the effort to litigate this defamation claim on behalf of Aaron Sapiro, who is a Jewish farm cooperative owner who sued The Dearborn Independent for libel because it accused Sapiro of an international grain conspiracy of some sort.

Samantha Barbas: Right, right, right.

Nico Perrino: Was there any merit to his actual claim if we were to apply modern day defamation law to it? Did Henry Ford and The Dearborn Independent totally lie about him on matters of fact?

Samantha Barbas: I think they did.

Nico Perrino: Okay.

Samantha Barbas: Yeah, I think that they libeled him individually. And he also raised a novel claim that Henry Ford defamed Jews as a group.

Nico Perrino: This group defamation concept that would come up later in the Beauharnais case at the Supreme Court, but that hadn’t existed. That hadn’t come about yet.

Samantha Barbas: Yeah. And generally speaking, in the United States, there has never been group defamation law. So, group defamation law is essentially a hate speech law that would give an entire social group the ability to recover legally when they had been defamed. But in the United States, defamation is only really an individual cause of action. So, you can only sue as an individual when your reputation has been harmed but not for being defamed as a member of a group.

Nico Perrino: And what’s the philosophical basis between those distinctions? Why would it not be compatible with the First Amendment to have a group defamation law, for example?

Samantha Barbas: Yeah. I think one reason is the practical difficulty of an entire group bringing a legal claim just in terms of the mechanisms of adjudicating it. But also, that really seems to encroach on speech on public issues. If you’re making a commentary about a social group talking about a political issue in which a social group may be involved, that kind of gets to core political speech, protected speech.

Nico Perrino: Yeah. And it’s hard to kinda nail down the facts on those as well when you’re painting – as you must when you’re talking about a whole group – with broad brush strokes.

Samantha Barbas: Right.

Nico Perrino: But there was a Supreme Court case that I had mentioned before, Beauharnais. They had found that a group defamation law could be supported under the First Amendment, although that’s fallen into disrepute.

Samantha Barbas: Yes.

Nico Perrino: Has it ever actually been overturned? It’s just more or less been ignored. Is that the case?

Samantha Barbas: Yeah. So, this is the famous Supreme Court decision from 1952. And this involved the Illinois hate speech law that I mentioned earlier that was passed in the World War I era. And so, that law essentially punished defamation of a group or any statement about a racial or religious group that cast aspersions on them, degraded them, and so forth. And a White supremacist was convicted under this hate speech law. This went up to the Supreme Court. The ACLU challenged it.

And the Supreme Court said this law is good. It does not violate the First Amendment. The Supreme Court characterized it as a group defamation law. And at the time, defamation was considered to be a category of unprotected speech. This was before the New York Times versus Sullivan. So, group defamation, individual defamation, no constitutional issue here. The law is valid.

Nico Perrino: And it’s still an exception to the First Amendment. The standard however to meet is just much higher post Sullivan. And I should note here I’d be remiss if I didn’t note that you have a book called Actual Malice, which is about The New York Times versus Sullivan case, which also implicates civil rights groups and their free speech rights. But that has set the standard for what defamation of a public official and consequently, in subsequent Supreme Court decisions, public figures and limited purpose public figures and whatnot mean.

But at the time they were talking about The Dearborn Independent, Henry Ford, and Aaron Sapiro, none of that case law existed. The standard for defamation was much lower. And this question of group defamation was still an open question in the courts. So, Aaron Sapiro files his lawsuit. It gets a mistrial because a newspaper interviewed one of the jurors. Right?

Samantha Barbas: Right.

Nico Perrino: And so, he’s considering bringing it again when Louis Marshall, as you know, intervenes and brokers a deal with Henry Ford, by which Henry Ford apologizes, issues a correction, I believe. And you write, “In a dramatic way, through public pressure and counter speech, Marshall had imposed a hate speech ban on the decade’s most prominent antisemite.”

This stuck out to me, and it’s a question I wanna ask you, which is: Was Aaron Sapiro’s lawsuit a strategic lawsuit against public participation? Although, I guess if you’re saying that he had a valid claim, it probably wouldn’t be on its face, but you could see how one might use these lawsuits. And we often see individuals use these defamation lawsuits to shut up people from speaking about them or speaking about a matter they care about by putting them through costly litigation, sucking up time and resources.

This is why we see anti-SLAPP, anti-strategic lawsuits against public participation statutes in various states. We don’t have a federal statute, but you have various state statutes to prevent this sort of thing. But you wouldn’t see this as a SLAPP case.

Samantha Barbas: Yeah. I think Sapiro’s claim was pretty valid, especially what we know about Ford’s history of targeting Jewish activists to defame them.

Nico Perrino: Was Ford interested in targeting any other minority groups, or did he have a special disdain or prejudice for the Jews?

Samantha Barbas: Yeah, I think the latter is quite accurate.

Nico Perrino: But I think I’ll close here with a quote from Marshall, who says that he opposed hate speech laws because they would enable our enemies to shovel into the record all kinds of stupid and inane charges, which would find credence on the part of those who either lack intelligence or who possess the fanaticism which constitute favorable soil for antisemitic propaganda. So, this is the same sort of argument that you see with the NAACP in The Birth of a Nation case, that these hate speech laws create a platform –

Samantha Barbas: Exactly.

Nico Perrino: For these speakers to express their noxious viewpoints.

Samantha Barbas: Precisely, yeah. Prosecutions and trials just give hate speakers, as you say, a platform and opportunity to further defame groups. And people may believe what they say.

Nico Perrino: So, we’re talking now about the period between 1915 and, let’s say, 1940. Did these groups prevail in convincing states, municipalities to forgo the whole hate speech regulation thing? Did they win the day if they didn’t win the day within their organization?

Samantha Barbas: They eventually won the day I would say in the 1960s. In the 1930s, I think, still, because of the rise of fascist groups in the U.S. in the 1930s, there was a very strong momentum to pass hate speech laws, again, to prevent these Nazi organizations from stirring up trouble, stirring up violence in communities.

Nico Perrino: And would these groups actively oppose those laws?

Samantha Barbas: Yes. The American Jewish Committee in the early 1930s was actually put to this question by its members. Are we going to oppose these anti-Nazi laws or support them? And it issued a position paper in which it official stated that these laws are going to harm minority groups more than help them, and we officially oppose this wave of anti-Nazi legislation that’s being proposed.

Nico Perrino: And they would harm the groups in what way, in the same way that The Birth of a Nation publicity that came from the censorship campaign did, or because these laws would also be in use against minority groups?

Samantha Barbas: Yes, they would be used against the minority groups because, inevitably, they’re vague. Terms like hatred, racial unrest, offense, insult, those likely could be used against a minority group that’s speaking out against the racial status quo.

Nico Perrino: They had, during this time, other strategies for addressing hateful speakers that didn’t involve censorship, of course. And this is the quarantine and immunization policy. Can you talk about those policies and which of these groups adopted it?

Samantha Barbas: Yeah. So, in the 1940s, when hate speech laws were being proposed and passed in the context of the Second World War, again, the rise of fascist organizations in the U.S. that were using hate speech to try to foment unrest and to undercut the American war effort. It was in this time that the American Jewish Committee developed a tactic that it called quarantine or the silent treatment.

And the idea was that if we don’t give any publicity or attention to these hate groups, they will eventually disappear, because the thing that these hate groups and these hate speakers really want is public attention. They want media attention, and they want the opportunity to gain a following. If we don’t go to their rallies and protest them, if we don’t talk about them, if the media doesn’t write about them, they won’t have any revenue. They’ll just disappear. And that strategy was really successful. There are a number of instances where they used the silent treatment on various hate speakers, and those hate speakers just couldn’t generate any attention.

Nico Perrino: Yeah. You talk about the story of one man, Gerald L.K. Smith, who was a notorious Holocaust denier and led the rightwing organization called Christian Nationalists, who planned a speech in Cleveland in 1946. And the local Jewish community gave him the silent treatment. And The Cleveland Plain Dealer wrote of that, “We permitted Smith the freedom of speech guaranteed by the Constitution or guaranteed by the government, but we decided that there was nothing in the Constitution compelling us to listen to him or pay one damn bit of attention.”

And you note that in places where Smith was quarantined, attendance at his meetings just dwindled. And so, they saw that this was an effective strategy. And you also point to a manual published by the American Jewish Committee called “What to Do When the Rabble Rouser Comes to Town,” that I think is worth quoting a little bit.

The manual argued that the rabble rouser wants publicity. He thrives on crowds of suckers. When he gets publicity, they think he has something on the ball. The answer is to treat the hate peddle as an insignificant rat who does not deserve public attention rather than a powerful personage. So, colorful language there, but speaks largely to the learned experience of these groups over the previous decades.

Samantha Barbas: Exactly.

Nico Perrino: Turning now to the civil rights era where you do talk about how these groups start joining forces with groups like the ACLU in defense of hateful speakers. There’s one case, Fields v. City of Fairfield. Here it seems like they are being more proactive in their opposition to hate speech laws rather than proactive in advocating for them or just not speaking so much about them. They’re actually getting out there and getting into court arguing against these cases. And that lasts from the period of 1950 through 1960 through the early 1970s.

Samantha Barbas: Yeah. I think maybe if we go back a little earlier during the World War II period, the NAACP adopts an official policy of opposing hate speech or group defamation laws.

Nico Perrino: Oh, interesting.

Samantha Barbas: Yeah. So, again, in the ‘40s, there were all these efforts to ban what they called hate propaganda, the speech and publications of these pro-Nazi groups. And there was a proposed postal bill that would ban the mailing of such propaganda. The NAACP sent representatives to the hearing along with the ACLU and again made the claim that these laws will ultimately backfire. They’ll be turned against minority groups. Thurgood Marshall, who was a legal counsel for the NAACP in this time –

Nico Perrino: Before he became Supreme Court justice. Right?

Samantha Barbas: Yeah. He goes on record denouncing these laws. He points out that opposing the poll tax could be seen as an act of racial hatred. Opposing White supremacy could be categorized as a type of hate speech. And so, these laws are very dangerous.

Nico Perrino: Yeah. And especially if you’re premising these laws on the breach of the peace or the unrest that they cause, then yeah. If you’re in the south and you’re arguing against the poll tax, that might very well animate an anti-civil rights mob in the south.

Samantha Barbas: Yeah, yeah. And we have stories of jurisdictions in the south where there were hate speech laws that were actually used against, say, the editors of Black newspapers, who were writing critically about segregation. They were brought up under these laws for inciting racial unrest, causing racial hatred.

Nico Perrino: Can you talk a bit about the Brandenburg v. Ohio case from 1969. This is largely seen as one of the, if not the most speech protective decisions in Supreme Court history, really kind of outlines the contours or the scope of our First Amendment rights here in America, and it was a case dealing with a racist who was anti-Black, antisemitic, but who had attorneys who were Jewish and Black. Can you talk about that case and the significance of this moment in the coalescing of this approach to hate speech?

Samantha Barbas: Yeah. So, in the 1960s, the NAACP and other civil rights groups became very vocal about advocating a broad protection for free speech, really as a matter of principle. Again, they knew that the advance of the civil rights movement depended on the opportunity to protest and speak freely. And so, the Brandenburg case comes in the latter part of the 1960s and involved a veteran, Clarence Brandenburg, who was kind of a broken man. He had opened a series of failed businesses and then was eager to become a leader of his Klan chapter in Ohio. And he spoke at a rally where there was a cross burning, and he made some unfortunate statements.

Nico Perrino: Yeah, I’ve got it here. He said, “We’re not a revengent organization. But if our President, our Congress, our Supreme Court continues to suppress the White Caucasian race, it’s possible that there might have to be some vengeance taken.” Also, not a very literate man, but nevertheless ... And there were television cameras. I guess he invited a television crew to come and film and document this cross-burning, which I guess the Klan calls a cross illumination.

Samantha Barbas: Oh, yeah.

Nico Perrino: But in any case, this finds its way into the courts.

Samantha Barbas: Yeah. So, he was brought up under a criminal syndicalism law, which I suppose was attempting to prohibit speech that would cause violent breaches of the peace. And he is represented by the ACLU in the Supreme Court, and he really didn’t like the ACLU because of its advocacy of civil rights. But his lawyers are Eleanor Holmes Norton, a very important civil rights activist and also the head of free speech cases at the ACLU at the time, and an Ohio attorney named Allen Brown, who’s a Jewish attorney.

And he, again, was not too happy with his lawyers, but ultimately they won in court. And Brandenburg revises the clear and present danger test, which the Supreme Court had announced back in the 1930s. What Brandenburg does, it says that speech cannot be prohibited unless it is likely to produce imminent lawless action. So, it’s a very speech protective standard. And really, Brandenburg does away with the possibility of hate speech laws in America.

Nico Perrino: Yeah. And Eleanor Holmes Norton you quote in your piece saying, “I loved the idea of looking a racist in the face and saying, ‘I’m your lawyer, sir. What are you going to do about that?’” She said, “The rightwing cases are real plums. When I defend a leftwinger’s right to dissent, I’m not saying very much to the increasingly larger body of people in this country committed to repression of extreme ideas. But when I’m defending a racist’s rights, the object lesson is dramatically clear.” And it’s made even clearer by the fact of Holmes’s background.

She spent her summer in Mississippi during 1964, the Freedom Summer. She was an advocate. She called herself a militant civil rights activist. She was one of two lawyers, I believe, at the ACLU at the national office when she went to work there, and she represented George Wallace when he was denied a permit to host a rally at Shea Stadium in New York. I believe that was 1968. A month later, she was at the Supreme Court defending the National States’ Rights Party after they were prevented from speaking in a small town in Maryland. So, she really had her, “I defend everyone. I defend racists,” punch card punched quite a bit at this time.

And of course, she would go on to lead the Equal Employment Opportunity Commission under Carter. And then she’s been the ... They’re not called representatives, right, if you’re representing the District of Columbia? It’s like a delegate to the House of Representatives ‘cause you don’t have voting rights. But she’s been the delegate to the House of Representatives for the District of Columbia for over three decades at this point, I believe. So, quite a distinguished career. And that was part and parcel for doing work at the ACLU at the time. Correct?

Samantha Barbas: Yeah, yeah. She was, I think, in charge of the free speech cases at the ACLU for a period in the 1960s.

Nico Perrino: All right. So, let’s turn now to when things start to change. You titled this section of your essay “Reversal and Retrenchment.” And correct me if I’m wrong, but it seems like in the article you peg it to around 1972, when, speaking of the National States’ Rights Party, one of its would-be candidates for Senate in Georgia, Jesse Benjamin Stoner, ran for office. And civil rights groups had a different response than they had in previous decades to his wanting to buy time on television. Can you talk about that matter?

Samantha Barbas: Yeah. So, J.B. Stoner was a notorious racist who was affiliated with the National States’ Rights Party. And he was running for the Senate in Georgia, and he was attempting to put on television some really noxious and inflammatory racist campaign messages, and –

Nico Perrino: Oh, and I actually have that here. His campaign pitch, “I am the only candidate for United States Senator who is for the White people. I am the only candidate who is against integration. All of the other candidates are race mixers to one degree or another. Vote White.”

Samantha Barbas: Yeah, yeah. And the NAACP and the Anti-Defamation League were involved in a campaign to try to get the local television stations not to run this ad, and they also petitioned the FCC. So, there was an equal time provision – I think there still is – that requires a television station to run both sides of a political campaign, opposing candidates. And so, they wanted the FCC to say to the television stations, “Well, in this instance, it’s okay if you don’t run J.B. Stoner’s advertisement.” Now, the FCC didn’t go for that, but this really marks a moment when these civil rights groups that had opposed hate speech laws for decades and decades were now rather suddenly reversing their position.

Nico Perrino: Yeah. And speaking to that FCC ruling on their request, the FCC held that if there is to be free speech, it must be free for speech that we abhor and hate as well as for speech that we find tolerable or congenial. The board concluded, accordingly, the request is denied.

Samantha Barbas: Right.

Nico Perrino: But this approach continued into the late 1970s. And you talk about the famous Nazis in Skokie’s case. And I’ve made a study of this recently for a book chapter I’m working on.

Samantha Barbas: Great.

Nico Perrino: And I also made a documentary where Skokie was the throughline. Originally, the plan in Skokie was to do the quarantine and immunization approach. That was the plan until the Holocaust survivors came in and said, “The last time we ignored Nazis when they came to our town, last time our rabbis told us to close the door and close the shutters, six million of us were murdered. We can’t let that happen again.”

And against the advice of the city attorney – I believe his name was Howard Schwartz – the mayor decided, yeah, we’re gonna go to court and seek an injunction against this group, Frank Collin and his 12 or so Nazis from the south side of Chicago. And they were successful in getting that injunction with the support of local civil rights groups, local Jewish communities. So, they’re advancing here what began, as you say, in 1972 with Stoner. And they’re explicitly rejecting the quarantine policy. Was that the end of the quarantine policy in your mind?

Samantha Barbas: That’s a great question. I’m not sure if the quarantine continued, but I think Skokie is a real turning point in this history for a number of reasons. As you mentioned, the village of Skokie sought an injunction. They also passed hate speech laws.

Nico Perrino: Yeah, three of them, three ordinances. And I should note there were 6,000 Holocaust survivors living in Skokie, Illinois at the time. It’s a village of – they liked to call themselves a village. It was a village of 70,000. So, a very big proportion of its citizens were Holocaust survivors at the time.

Samantha Barbas: Yeah, yeah. And the Anti-Defamation League supported this, and they also brought a lawsuit on behalf of the Holocaust survivors claiming that they would be subjected to dignitary harm and emotional distress if they had to be exposed to this Nazi march. And this is really important because it signals a turn in the law away from this focus on breach of the peace and violence to emotional wellbeing, dignity, psychological wellbeing.

And I think that’s what we still see today in terms of our discussion around hate speech. The thing we’re trying to prevent with hate speech law or some are trying to prevent is the insult and the indignity and the mental distress caused by hate speech. I think people are not so concerned with breach of the peace as they are with these more internal states.

Nico Perrino: And the trouble with that, Professor, is the subjectivity of it, I’m imagining. Speech that to one person might strike at their core dignity, for another person with maybe a thicker skin might just roll off their shoulder. Right? I think it was John Milton, maybe, who said there’s no good or bad but thinking makes it so, or maybe it was him who said that the mind is its own place. It can make a heaven of hell or a hell of heaven. So, it speaks to this idea that everyone is different. The dignitary harms are hard to predict as a result. And therefore, we can’t have this vague or free-floating dignitary exception to the First Amendment.

Samantha Barbas: Yeah, yeah. And I think in the discussion of hate speech and hate speech law post Skokie, we really see this emphasis on harm, a lot of talk about the different kinds of harm that hate speech can cause, but we don’t really see a lot of discussion about the harm that the suppression of speech can cause.

Nico Perrino: Correct, yeah. Well, in this case, the Skokie case, the harm that the suppression of the speech caused was Frank Collin, the leader of the National Socialist Party of America, capturing headlines and being given a platform across America, his case even being discussed by the President of the United States at the time, Jimmy Carter, in a way that would have never happened had they just ignored him.

But then again, you can understand the concerns of the Holocaust survivors who remembered the last time that they ignored someone like Frank Collin, who, I should remind our listeners if they haven’t seen my documentary Mighty Ira, was himself Jewish. His name was originally Frank Cohen. His father was a survivor of the Holocaust of Dachau, a concentration camp. So, a very, very troubled man, but nevertheless very charismatic and eager for the publicity that this case provided him.

He never actually ended up rallying in Skokie. There was one occasion where he was on the highway to get into Skokie, but police stopped him at the exit because of an injunction that applied to the next day. Frank Collin had figured out it didn’t apply to that day. And so, Skokie had to very quickly go to the court and get the injunction expanded.

Samantha Barbas: Yeah. He didn’t even need to march. He got everything he wanted. He got more than he hoped. Right? He got this amazing publicity.

Nico Perrino: Yeah. He ultimately ended up retiring in infamy because he was prosecuted for child sexual abuse a few years later, which was occurring in the Nazi headquarters there on the south side of Chicago. But nevertheless, Judge Bernard Decker, the presiding federal judge in this Skokie case, maintained that the ability of American society to tolerate the advocacy even of hateful doctrines such as Nazism was the best protection we have against the establishment of any Nazi type regime in this country. And you think this is the right approach.

Samantha Barbas: I do, yeah. And I think that this was really a ringing endorsement in the principles of free speech that have been established by the Warren Court in the previous decade. But one other thing that’s really notable about the Skokie incident, it’s kind of a constitutional moment when the entire country is discussing a free speech question. I don’t think we’ve ever had that prior to Skokie. Everybody is talking about: Should the Nazis be able to march in Skokie?

Nico Perrino: Yes, we’re still talking about it. It’s a paradigmatic example today of what it means to protect free speech in America. It’s to even protect it for the Nazis wanting to rally in a town of Holocaust survivors. I’m looking for it here as we’re talking. You have a hole that I had never seen before of the public support for the free speech rights of Nazis who wanted to rally in Skokie. Do you remember exactly off the top of your head?

Samantha Barbas: I think the public was overwhelmingly opposed to the Nazi march. I think it was something like 86% against the Nazi march in Skokie.

Nico Perrino: I’m looking for it here ‘cause I know you put it –

Samantha Barbas: Yeah, it was a Gallup poll.

Nico Perrino: Yeah, it was a Gallup poll. And if you read Aryeh Neier’s book, Defending My Enemy – He was the executive director of the national ACLU during those years, himself someone who fled the Holocaust when he was 2. He was Jewish. Many of his extended family members were killed. But very much an advocate of the ACLU’s position in this case. He said the public was overwhelmingly against the ACLU. Editorial writers, opinion writers, maybe members of the intelligentsia were in support of the ACLU’s position.

But I do think if you ask the average American today with the passions and factions of those years being behind us, most I’d say would agree with the ACLU’s position at the time, perhaps, at least most of those who are familiar with America’s jurisprudence and look at it as a shiny badge of honor that we would defend free speech even in those circumstances. But that I think comes as a result of distance.

One of the things that we find in our polling here at FIREis that if you asked Americans in the abstract if they support free speech rights, they’re overwhelmingly more than 90% say yes. But it’s when you dig into the details and say, “Well, would you defend them for this hateful speaker or that hateful speaker or the right of the Ku Klux Klan to rally at city hall?” that support starts to drop off precipitously.

Samantha Barbas: Yeah, I’ve seen statistics suggesting that half of Americans today support hate speech laws. And I don’t know if that’s consistent what you’ve found but –

Nico Perrino: No, I think it is. I don’t quite have the statistics in the back of my head as I’m still sifting through the pages here of your article to find that poll, but we’ll find it at some other point. Yeah. I think most Americans support hate speech laws, but I think many Americans can be brought along to the position if you explain to them, as Ira Glasser, the former executive director of the ACLU, did that hate speech laws are like poison gas. They seem like a good tool. You might even quote Ira on this point in your article. They seem like a good weapon when the wind is at your back, and the enemy is in sight, but the wind has a way of shifting.

And as these early civil rights group that you’re speaking about learn, these weapons can be used against the causes that you care about, be it civil rights advocates or antiwar advocates during the Vietnam War or even birth control or suffragists in the early part of the 20th century, especially if you’re premising them on the subjective or hostile reactions of speakers that might run afoul of breach of the peace and other sort of ostensibly viewpoint-neutral restrictions, but nevertheless inform a heckler’s vetoes response.

So, where do things stand today? Aside from the public opinion polling that we just discussed, where’s the law at? Where are there movements for hate speech now that are similar or maybe different from those in the past?

Samantha Barbas: Yeah. I think that the law is pretty speech protective at this point. I think the idea of a hate speech law being enacted and passing constitutional muster is pretty unlikely at this point. Public opinion is a different question. I think there is no free speech issue that more divides the public and that more divides public opinion and the law than hate speech. Right? Freedom for the thought that we hate is a pretty relatively unpopular idea, I think, in the United States at this moment.

So, I think that we have maybe law and public opinion going in different directions, perhaps. But I do think that in terms of looking back over this history. Some takeaways are, again, the turn to emotional harms, kind of dominant, interests protected by hate speech laws, and then also I think a reversal of the civil rights groups on the hate speech question. That doesn’t seem to have changed that much since the ‘70s and that moment of a shifting that I describe in the article.

Nico Perrino: America’s largely alone in protecting hate speech under the First Amendment. Most countries do not. They have more of a balancing approach to these sorts of questions. And where we’ve seen hate speech codes be prevalent in the past decades have been college campuses. You see many of these flare-ups. What do your college students think of this hate speech question when you’re teaching this law to them?

Samantha Barbas: Well, I think in part they’re pretty quiet about it because they –

Nico Perrino: Oh, interesting.

Samantha Barbas: Fear that if they say something that could be misinterpreted by one of their colleagues, they might be ostracized or in some way socially punished.

Nico Perrino: Is that social fear greater than any sort of administrative or punitive fear, you think, or more influential in how they approach classroom discussions?

Samantha Barbas: Yeah. I mean that’s how I see it at the particular institution where I’m teaching. FIREdo express concern not so much with any official punishment, but just how they are viewed among their peers.

Nico Perrino: In the social media age.

Samantha Barbas: Right.

Nico Perrino: Right?

Samantha Barbas: Yeah.

Nico Perrino: Right. Well, part of the problem is the way colleges and universities teach not just about hate speech and the First Amendment but also talking across lines of different discourse. One of the speakers that we often have at our conferences at FIREis Daryl Davis. I don’t know if you’re familiar with his name.

Samantha Barbas: No.

Nico Perrino: A famous musician who toured with Chuck Berry and a bunch of other luminaries, but also had a habit, or a pastime I should say, of befriending members of the Ku Klux Klan, and he was a Black man, and through that friendship trying to get them to give up their Klan robes.

And I visited his house to do a podcast almost a decade ago at this point, and I saw the Klan robes that he was given by these former Klan members. The idea being that talking across lines of difference as a Black man demonstrating that to them that their prejudices were wrong, that friendships can be maintained across color lines, was more effective than trying to silence these individuals who would see that as an opportunity to make free speech martyrs of themselves and see that as an opportunity to find a greater platform for their prejudiced or bigoted views. So, how much of this do you think is a civil discourse issue versus, say, education about civics in the United States?

Samantha Barbas: That’s a good question. So, when you say education, you mean that students just don’t have any context for discussion.

Nico Perrino: Yeah. The whole conversation that we had here is: Look at the history. Look at how these hate speech codes were used against not only civil rights activists but also used by these hate speakers to create a greater platform for themselves. We should understand this history. We should understand why we shouldn’t ban hate speech in this country. I don’t think most young people are taught those lessons now. They might know that hate speech is protected by the First Amendment, but they might not understand quite why, unless they go to your class, of course.

Samantha Barbas: Right, yeah. I think that the history of the civil rights movement is not taught as extensively as it should be. And I also think there’s this feeling that, well, that may all been true back in the ‘60s, but we’re in a new era now with social media. Now everything has changed. Hate speech proliferates. We need to entirely rethink the law and our principles because we’re in such a different speech environment, but I don’t think that’s true.

I think a lot of these lessons from the past hold true in that just some of the fundamental questions about the importance of free speech and the importance of the ability to talk back against injustice – I don’t think that has changed. But I think it’s tempting to say, well, social media has made everything different, and now we just need to think more seriously about suppression.

Nico Perrino: It raises a question. Who would be doing the suppression then? Who would you trust to do it, right, in our increasingly polarized society? If you had a federal hate speech law, it’d be Donald Trump. Conservatives also wouldn’t trust Joe Biden, the previous president, with such a law. Would it be Ken Paxton in Texas who would be prosecuting under this hate speech law or the attorney general in California? I think that’s also one of the points that free speech advocates make is who decides.

Who decides what is hateful? Who decides what is offensive? Ira Glasser and Aryeh Neier talk about one example in the UK in the 1970s involving the National Union of ������ýapp�ٷ�, which wanted to pass a hate speech code for its various student groups, and appealed to the Zionist student organization in that country to endorse it, which they did. And it was a year or two later then that the hate speech code was used against the Zionist group for inviting a Zionist speaker to a campus. So, the winds have a way of shifting, as Ira Glasser said. By way of closing here, I wanna get a little bit further out from this conversation and ask a few rapid-fire questions if you don’t mind.

Samantha Barbas: Sure, absolutely.

Nico Perrino: Do you have a favorite free speech book or article or piece of literature or movie that you would recommend?

Samantha Barbas: That is a very difficult question. But I will say that your documentary –

Nico Perrino: Oh, thank you.

Samantha Barbas: Is terrific on Ira Glasser and the –

Nico Perrino: Thank you.

Samantha Barbas: Skokie case. And I’ve actually written about Skokie. It’s one of the chapters in my forthcoming book.

Nico Perrino: Oh, good.

Samantha Barbas: And I was very influenced by the people you interviewed and your overall presentation.

Nico Perrino: Oh, thank you. Thank you. That was a very fun documentary to make, but I still have PTSD from making it, not from actually putting together the story, but rather from doing all the licensing on the 550 lines of archival that was required in order to actually make it a reality.

Samantha Barbas: Yeah.

Nico Perrino: Do you have a free speech or First Amendment hero or inspiration?

Samantha Barbas: I’ve been writing a lot about Justice Brennan, who wrote the opinion in New York Times versus Sullivan. And I’m working on another book now, which is –

Nico Perrino: He also wrote the opinion in Brandenburg. Right?

Samantha Barbas: Yes, he did.

Nico Perrino: Took it over from Abe Fortas, which I learned in your article.

Samantha Barbas: Yeah, right.

Nico Perrino: And Abe Fortas would have had a more ... It would have been the same decision ultimately on the merits, but a less expansive view of what constitutes incitement, which I found very interesting.

Samantha Barbas: Yeah, yeah. It’s so interesting, all the kind of behind the scenes development at the court that caused one justice to end up writing opinions opposed to another. But I’m working on another project now on a defamation case that was decided after New York Times versus Sullivan, Associated Press versus Walker, which extended the actual malice rule to public figures and is a very important form of free speech protection.

Nico Perrino: Can you just distinguish that quickly for our listeners? So, public officials are what was dealt with in The New York Times v. Sullivan case. Public figures, slightly different.

Samantha Barbas: Right, yeah. Well, it’s significantly different because public officials, it’s a pretty narrow swathe of the population.

Nico Perrino: Yeah. They still might be public figures, but public figures aren’t government officials, so to speak. Right?

Samantha Barbas: Yeah, right. A public figure is a celebrity or anyone who puts themselves in the public eye. So, when the Supreme Court said that public figures have to show actual malice in libel cases, that really changed the landscape and I think afforded journalists and speakers a tremendous amount of protection. So, I was writing about that case and Justice Brennan’s efforts to extend the actual malice standard. Brilliant free speech theorist.

Nico Perrino: Okay. Well, we’ll link it in the show notes. And I did find that passage where you talk about the inner workings of the course and how we ended up with the super speech protective Brandenburg v. Ohio case. I’m gonna read briefly here from your article. “Chief Justice Earl Warren assigned the opinion to Justice Abe Fortas. In the first draft of the Brandenburg opinion, Fortas wrote that the Ohio criminal syndicalism statute failed the clear and present danger test because it punished mere advocacy of violent acts.

Shortly after Fortas wrote the draft, he resigned from the court, and the opinion was redrafted by Justice William Brennan. In his draft opinion, Fortas had invoked the clear and present danger test but strengthened it by requiring advocacy directed to inciting or producing an imminent lawless action. Brennan’s redraft,” you note, “added a requirement that such advocacy must be likely to incite or produce such action. This imminent lawless action test gave greater protection to subversive speech than existed anywhere else in the world.” I did not know that. So, thank you, I guess, Abe Fortas for retiring from the court.

Samantha Barbas: Resigning, yeah.

Nico Perrino: All right. Well, Professor Barbas, this has been a pleasure.

Samantha Barbas: Thank you.

Nico Perrino: For our listeners who are interested in reading the article, it is available in the Journal of Free Speech Law, and it is called “How American Civil Rights Groups Defeated Hate Speech Laws.” I should also note that our friends over at the Future of Free Speech Project published a more abridged essay or article-length version of the article that you can also check out there.

I am Nico Perrino. And this podcast is recorded and edited by a rotating roster of my FIREcolleagues, including Sam Li and Chris Maltby. This podcast is produced by Sam Li. To learn more about So To Speak, you can subscribe to our YouTube channel or Substack page, both of which feature video versions of this conversation. We’re also on X, which you can find by searching for the handle freespeechtalk.

And if you have feedback or questions, you can send those to sotospeak@thefire.org. Again, that is sotospeak@thefire.org. And if you enjoyed this episode, please leave us a review on Apple Podcasts or Spotify. Reviews help us attract new listeners to the show. And until next time, I’ll thank you all, again for listening.