Group libel is defined as the depiction of the “depravity, criminality, unchastity, or lack of virtue” of any social group, including a race, which holds the group up to public contempt.
All racial and ethnic insults imply debasement of the individual through the invocation of the stereotypical vices of his or her group.
In Beauharnais v. Illinois, 343 U.S. 250, the Court had upheld an Illinois group libel statute but the majority had warned that “`While this Court sits’ it retains and exercises authority to nullify action which encroaches on freedom of utterance under the guise of punishing libel.” Beauharnais v. Illinois 343 U.S. 250 (1952)
The Court opinion here apparently treats the Beauharnais case as having decided that the Federal Government has power, despite the First Amendment, to pass so-called “group libel” laws. This, I think, is wholly unjustified. The Beauharnais opinion was written on the assumption that the protection afforded the freedoms of speech and petition against state action by the Fourteenth Amendment amounted to something less than the protection afforded these freedoms against congressional action by the First Amendment. Thus, as pointed out in my dissent in that case, the majority in Beauharnais never even mentioned the First Amendment but upheld Page 66 the state “group libel” law on the ground that it did not violate “civilized `canons of decency,’ reasonableness, etc.” See 343 U.S., at 268-269. See also the dissent of Mr. Justice Jackson, at 287-305. Konigsberg v. State Bar 366 U.S. 36 (1961)
The charge of the trial court did not leave the jury free to convert an “impersonal” into a “personal” libel. The court merely instructed the jury that if it interpreted the article as an accusation of misconduct the jury could find for the plaintiff if either he alone was found to be libeled, or he was one of a small group of persons so libeled. This is conventional tort law. “[I]f the group is small enough numerically or sufficiently restricted geographically so that people reasonably think the defamatory utterance was directed to or intended to include the plaintiff, there may be a recovery.” 1 Harper James, Torts § 5.7, at 367 (1956). See also Prosser, Torts § 106, at 767-768 (1964); Riesman, Democracy and Defamation: Control of Group Libel, 42 Col. L. Rev. 727, 759-760 (1942). The Restatement of Torts § 564, Comment c (1938), includes this aspect of defamation in language very similar to that of the charge in this case..Rosenblatt v. Baer 383 U.S. 75 (1966)
While it is true that an important objective of the First Amendment is to foster the free flow of information, identification of speech that falls within its protection is not aided by the metaphorical reference to a “marketplace of ideas.” There is no reason for believing that the marketplace of ideas is free from market imperfections any more than there is to believe that the invisible hand will always lead to optimum economic decisions in the commercial market. See, e. g., Baker, Scope of the First Amendment, Freedom of Speech, 25 UCLA L. Rev. 964, 967-981 (1978). Indeed, many types of speech have been held to fall outside the scope of the First Amendment, thereby subject to governmental regulation, despite this Court’s references to a marketplace of ideas. See, e. g., Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (fighting words); Beauharnais v. Illinois, 343 U.S. 250 (1952) (group libel); Roth v. United States, 354 U.S. 476 (1957) (obscenity). It also has been held that the government has a greater interest in regulating some types of protected speech than others. See, e. g., FCC v. Pacifica Foundation, 438 U.S. 726 (1978) (indecent speech); Virginia Pharmacy Board v. Virginia Citizens Consumer Council, supra (commercial speech). And as this Court stated in Gertz v. Robert Welch, Inc., 418 U.S. 323, 344, n. 9 (1974): “Of course, an opportunity for rebuttal seldom suffices to undo [the] harm of a defamatory falsehood. Indeed the law of defamation is rooted in our experience that the truth rarely catches up with a lie.” The Court similarly has recognized that false and misleading commercial speech is not entitled to any First Amendment protection. See, e. g., ante, at 566. Central Hudson Gas Elec. v. Public Serv. Comm’n 447 U.S. 557 (1980)
My premise is that in the area of obscenity the Constitution does not bind the States and the Federal Government in precisely the same fashion. This approach is plainly consistent with the language of the First and Fourteenth Amendments and, in my opinion, more responsive to the proper functioning of a federal system of government in this area. See my opinion in Roth, 354 U.S., at 505-506. I believe it is also consistent with past decisions of this Court. Although some 40 years have passed since the Court first indicated that the Fourteenth Amendment protects “free speech,” see Gitlow v. New York, 268 U.S. 652; Fiske v. Kansas, 274 U.S. 380, the decisions have never declared that every utterance the Federal Government may not reach or every regulatory scheme it may not enact is also beyond the power of the State. The very criteria used in opinions to delimit the protection of free speech — the gravity of the evil being regulated, see Schneider v. State, 308 U.S. 147; how “clear and present” is the danger, Schenck v. United States, 249 U.S. 47, 52 (Holmes, J.); the magnitude of “such invasion of free speech as is necessary to avoid the danger,” United States v. Dennis, 183 F.2d 201, 212 (L. Hand, J.) — may and do depend on the particular context in which power is exercised. When, for example, the Court in Beauharnais v. Illinois, 343 U.S. 250, upheld a criminal group-libel law because of the “social interest in order and morality,” 343 U.S., at 257, it was acknowledging the responsibility and capacity of the States in such public-welfare matters and not committing itself to uphold any similar federal statute applying to such communications as Congress might otherwise regulate under the commerce power. See also Kovacs v. Cooper, 336 U.S. 77.Memoirs v. Massachusetts 383 U.S. 413 (1966)
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