Could Maryland make it a crime to publish material that defames a whole racial or religious group, like Nazi or Klan hate literature?

Plain-English summary

A member of the Maryland House of Delegates asked the Attorney General to review House Bill 1018, a bill responding to hate literature distributed by groups like the American Nazi Party and the Ku Klux Klan. The bill would have made it a misdemeanor, punishable by up to a year in jail for a first offense and up to three years for a subsequent offense, to knowingly and maliciously distribute written or pictorial material that held the members of any race, color, creed, or religion up to public contempt or hatred. The opinion concluded the bill would violate the First Amendment's Free Speech Clause. It traced how the U.S. Supreme Court's 1952 decision in Beauharnais v. Illinois, which upheld a similar group-defamation law based on a breach-of-the-peace rationale, had been substantially undermined by later decisions like New York Times Co. v. Sullivan, Garrison v. Louisiana, and Ashton v. Kentucky, which together required a showing of knowing or reckless falsity for defamation liability and effectively gutted the vague breach-of-the-peace justification for criminal libel. The opinion found that House Bill 1018, unlike the Illinois statute in Beauharnais, tried to avoid this problem by limiting itself to knowingly or recklessly false statements, but concluded the line between provably false statements of fact and constitutionally protected opinion or ideology was too fine for a criminal statute to draw, especially in the charged context of racial, religious, and political commentary, so the bill would inevitably chill protected speech and could not be justified by any interest strong enough to outweigh that cost.

Currency note

This opinion was issued in 1982. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The opinion's analysis rested on the state of First Amendment defamation doctrine as of 1982, including its own observation that lower federal courts were already divided on whether Beauharnais v. Illinois remained good law after New York Times, Garrison, and Ashton. First Amendment doctrine on hate speech, group defamation, and criminal libel has continued to develop in the decades since. Verify current First Amendment case law before relying on any specific description of what a group-defamation or hate-speech statute may or may not constitutionally prohibit today.

Common questions

Could Maryland have made it a crime to distribute racist hate literature targeting a whole race or religion?
No, according to this opinion. It concluded that House Bill 1018's criminal group-defamation provision would have violated the Free Speech Clause because it could not reliably separate prohibited false statements of fact from constitutionally protected opinion and ideology.

Didn't the Supreme Court once uphold a similar group-defamation law?
Yes, in Beauharnais v. Illinois in 1952, but the opinion explained that later Supreme Court decisions, especially New York Times Co. v. Sullivan, Garrison v. Louisiana, and Ashton v. Kentucky, had substantially undermined Beauharnais by requiring proof of knowing or reckless falsity and by eliminating the vague breach-of-the-peace rationale the Illinois law had relied on.

Why wasn't it enough that House Bill 1018 only targeted knowing or malicious falsehoods, rather than all group defamation?
The opinion found that even a bill limited to "knowingly or maliciously" false statements ran into a deeper problem: in racial, religious, and political commentary, statements of fact are so intertwined with protected opinions, ideas, and beliefs that a criminal statute attempting to punish only the false "facts" would inevitably chill a great deal of protected speech as well.

Did the opinion approve of the hateful material the bill was trying to stop?
No. The opinion explicitly called the knowingly false disparagement of race or creed "despicable" and said the State had an obligation to fight it, but concluded that under the First Amendment, that fight had to happen in the public forum of ideas rather than through the criminal courts.

Background and statutory framework

The opinion traced the constitutional history of criminal group libel starting from Beauharnais v. Illinois, in which a divided Supreme Court upheld an Illinois statute criminalizing publications that exposed racial or religious groups to contempt, reasoning that such speech carried a "tendency to cause breach of the peace" and so fell outside First Amendment protection, over a dissent from Justice Black warning that such laws posed "a constant overhanging threat to freedom of speech, press and religion." The opinion then walked through how the constitutional landscape shifted over the following decades: New York Times Co. v. Sullivan required a showing of "actual malice," knowing or reckless falsity, before a public official could recover for defamation; Garrison v. Louisiana extended that rule to criminal libel of public officials and found that the breach-of-the-peace justification for criminal libel had been "substantially eroded"; and Ashton v. Kentucky struck down a criminal libel statute as unconstitutionally vague for defining the offense in terms of speech "calculated to create disturbances of the peace," a formulation the opinion found difficult to reconcile with Beauharnais's own reasoning. The opinion also drew on Gertz v. Robert Welch, Inc., a civil defamation case, for the principle that "under the First Amendment there is no such thing as a false idea," so that only knowingly or recklessly false statements of fact, not opinions or ideology, could constitutionally be punished, and that even permissible defamation remedies could reach no further than compensating actual injury without triggering an unconstitutional "chilling" or "self-censorship" effect.

Applying these principles to House Bill 1018, the opinion found the bill had tried to sidestep Beauharnais's now-shaky breach-of-the-peace rationale by instead limiting liability to "knowing[] and malicious[]" falsehoods, borrowing scienter concepts from the Court's post-Beauharnais defamation cases and from obscenity law. But the opinion concluded this fix did not solve the bill's constitutional problem, because, as Collin v. Smith and the concurring opinion in Anti-Defamation League of B'nai B'rith v. F.C.C. illustrated, group-directed speech about race, religion, and ideology is inseparably bound up with political and social commentary, so that a criminal statute attempting to isolate and punish only the "false facts" within that speech would inevitably reach protected ideas and opinions as well, and would do so using the "bludgeon" of criminal sanctions rather than the "most sensitive tools" the Constitution demands, citing Speiser v. Randall. Because House Bill 1018 could not be justified as compensating group members for defamatory injury (no individual member of a group has a right of action for group defamation) and because groups, unlike individuals, generally have real opportunities to answer false statements about them in public debate, the opinion concluded the bill's chilling effect on protected speech outweighed whatever interest the State had in suppressing the hateful material it targeted.

Citations

Statutes:

• House Bill 1018 (1982 Maryland General Assembly, proposed new §267A of Article 27, the group-defamation bill reviewed by this opinion)

Cases:

• State v. Browne, 206 A.2d 591, 594-95 (N.J. Sup. 1965)
• Robinson v. State, 108 Md. 644 (1908)
• Norvell v. Safeway Stores, Inc., 212 Md. 14, 22 (1957)
• Garrison v. Louisiana, 379 U.S. 64 (1964)
• Ashton v. Kentucky, 384 U.S. 195 (1966)
• Beauharnais v. Illinois, 343 U.S. 250 (1952)
• New York Times Co. v. Sullivan, 376 U.S. 254 (1964)
• Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)
• Brandenburg v. Ohio, 395 U.S. 444, 447 (1969)
• Collin v. Smith, 578 F.2d 1197, 1205 (7th Cir. 1978), cert. denied, 439 U.S. 916 (1978)
• Tollett v. United States, 485 F.2d 1087, 1094 (8th Cir. 1973)
• Anti-Defamation League of B'nai B'rith v. F.C.C., 403 F.2d 169, 174 n. 5 (D.C. Cir. 1968), cert. denied, 394 U.S. 930 (1969)
• United States v. Handler, 383 F.Supp. 1267, 1277 (D.Md. 1974)
• Time, Inc. v. Hill, 385 U.S. 374, 390 (1965)
• Speiser v. Randall, 357 U.S. 513, 525 (1957)
• Louisiana v. Time, Inc., 249 So.2d 328 (La.App. 1971)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1982/Volume67_1982.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

CONSTITUTIONAL LAW

First Amendment—Free Speech Clause—Criminal Libel—Proposed Group Defamation Statute Violates Free Speech Clause

March 18, 1982

The Honorable Luiz R. S. Simmons
Maryland House of Delegates

You have requested our opinion on the constitutionality of House Bill 1018 (Crimes and Punishments—Group Defamation), which, among other things, would make it a crime to disseminate written material that defames the members of racial or religious groups.

House Bill 1018 would add the following new §267A to Article 27:

"(a) In this section, the following words have the meanings indicated. (1) 'Defamatory matter' means any book, magazine, newspaper, or other printed or written material or any picture, drawing, photograph, motion picture, or other pictorial representation or recording which holds the citizens of any race, color, creed, or religion up to public contempt, shame, disgrace, or obloquy, or causes the citizens of any such group to be shunned, avoided, or injured in occupation and which matter, taken as a whole, arouses, and is intended to arouse, hatred or contempt for the citizens of any such group. (2) 'Person' means any individual, partnership, firm, association, corporation, or other legal entity. (3) 'Distribute' means to transfer possession of, whether with or without consideration. (4) 'Knowingly' means having knowledge of the character and content of the subject matter. (5) 'Maliciously' means having knowledge that the content of the defamatory matter contains false statements or representations or, with the reckless disregard as to the truth or falsity of the statement or representations in the content of the defamatory matter.

(b) Any person who knowingly and maliciously sends or causes to be sent, or brings or causes to be brought, into this State for sale or distribution, or in this State prepares, publishes, prints, exhibits, distributes, or offers to distribute, or has in his possession with intent to distribute or to exhibit or offer to distribute, any defamatory matter is guilty of a misdemeanor, and on conviction shall be subject to: (1) For a first offense, a fine of not more than $1,000 or imprisonment for not more than 1 year, or both; and (2) For any subsequent offense, a fine of not more than $5,000 or imprisonment for not more than 3 years, or both."

We understand that one stimulus to your proposal is the advent of hate literature, distributed by such groups as the American Nazi Party and the Ku Klux Klan and directed at racial and religious minorities. Although we share your disgust with such materials and recognize that your bill was drafted with an eye towards meeting the constitutional objections inherent in any attempt to legislate in this area, we nevertheless think House Bill 1018 would violate the First Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment.

I
Criminal Libel and Evolution of the First Amendment Doctrine

The notion that a person can be criminally prosecuted for defamation has its roots in the common law. See State v. Browne, 206 A.2d 591, 594-95 (N.J. Sup. 1965); Kelly, Criminal Libel and Free Speech, 6 Kan. L. Rev. 295 (1958). In Maryland, criminal libel was a common law offense. Robinson v. State, 108 Md. 644 (1908). For some time, it remained viable in this State [see Norvell v. Safeway Stores, Inc., 212 Md. 14, 22 (1957)], at least until the last two decades, when Supreme Court decisions effectively precluded enforcement of the common law crime [see Garrison v. Louisiana, 379 U.S. 64 (1964); Ashton v. Kentucky, 384 U.S. 195 (1966)].

Group libel or group "villification" is a type of criminal libel that is of more recent vintage, and it has its source in statutory law rather than the common law. Although Maryland has never had such a statute, a few states have.

About 30 years ago, in Beauharnais v. Illinois, 343 U.S. 250 (1952), the Supreme Court, by a 5-4 decision, upheld the constitutionality of an Illinois group defamation law.1 Justice Frankfurter, speaking for the majority, identified the gravamen of the offense to be the prohibition of words "liable to cause violence and disorder"; he noted that the statute thus mirrored the traditional justification for criminally punishing libels, namely, their "tendency to cause breach of the peace". 343 U.S. at 254. Such utterances, he said, were outside the protection of the First Amendment because they "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". 343 U.S. at 257. He added:

"[I]f 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." 343 U.S. at 258.

The majority opinion, after examining the history in Illinois of racial rioting and extreme racial and religious propaganda, concluded that the Illinois legislature was not without reason "in seeking ways to curb false or religious defamation of racial and religious groups made in public places and by means calcu-

1 The Illinois statute provided, in relevant part: "It shall be unlawful for any person, firm or corporation to manufacture, sell, or offer for sale, advertise or publish, present or exhibit in any public place in this state any lithograph, moving picture, play, drama or sketch, which publication or exhibition portrays depravity, criminality, unchastity, or lack of virtue of a class of citizens of any race, color, creed or religion which said publication or exhibition exposes the citizens of any race, color, creed or religion to contempt, derision, or obloquy or which is productive of breach of the peace or riots".

lated to have a powerful emotional impact on those to whom it was presented". 343 U.S. at 261.2

Four justices dissented, most notably Justice Black, who argued that the law of criminal libel had never been permitted to punish defamation against groups, as distinct from individuals, and that the majority's concern for breach of peace could not be extended beyond the face-to-face name-calling of "fighting words" to justify restriction on the various forms of speech. 343 U.S. at 272-73. In addition, Justice Black noted:

"This Act sets up a system of state censorship which is at war with the kind of free government envisioned by those who forced adoption of our Bill of Rights. The motives behind the state law may have been to do good. But the same can be said about most laws making opinions punishable as crimes. History indicates that urges to do good have led to the burning of books and even to the burning of 'witches'. No rationalization on a purely legal level can conceal the fact that state laws like this one present a constant overhanging threat to freedom of speech, press and religion . . . [T]he same kind of state law that makes Beauharnais a criminal for advocating segregation in Illinois can be utilized to send people to jail in other states for advocating equality and nonsegregation." 343 U.S. at 274.3

Twelve years after Beauharnais, the Supreme Court started a revolution in the law of libel by declaring, in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), that "libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment." 376 U.S. at 269. Comparing defamation of official reputation to punishment for seditious libel and libel on government,

2 In addition to holding that the Illinois statute did not offend the First Amendment, the majority also concluded that the legislation was not vague or otherwise violative of due process.

3 The other dissenters were Justice Douglas, who argued that the speech at issue presented no clear and present danger; Justice Reed, who thought the statute to be impermissibly vague; and Justice Jackson, who attacked the purported lack of safeguards in the statute. 343 U.S. at 277-305.

the Court fashioned a constitutional rule requiring the showing of knowing or reckless falsity before a defamation judgment could be obtained for criticism of a public official. 376 U.S. at 276, 279-80, and 291-92.4

Eight months later, the Court applied this new constitutional rule to criminal libel. In Garrison v. Louisiana, 379 U.S. 64 (1964), the justices reversed a conviction for the criminal libel of public officials where that conviction had been obtained without a showing of knowing or reckless falsity. The Court said that, although "calculated falsehood" did not enjoy constitutional protection, if freedom of expression was to have breathing space, even erroneous statements about public officials had to be safeguarded. 379 U.S. at 74-75. In reversing the conviction, the Court noted that a preference for civil libel "had substantially eroded the breach of the peace justification for criminal libel laws", that "except as a weapon against seditious libel, [such] criminal prosecution [had fallen] into virtual desuetude", and that, under modern conditions, "it can hardly be urged that the maintenance of peace requires a criminal prosecution for private defamation". 379 U.S. at 69.5

Two years after Garrison, in Ashton v. Kentucky, 384 U.S. 195 (1966), the Court did more than merely criticize the law of criminal libel: it effectively eviscerated both the common law offense and its primary rationale. It concluded that, by defining the offense as speech "calculated to create disturbances of the peace", the state had established too vague a standard to sustain a criminal conviction.

The effect of the Ashton decision on group libel and on Beauharnais is especially dramatic. If, as post-Beauharnais cases indicate, group libel is not automatically immune from the protection of the First Amendment and could only be justified as involving regulation of speech tending to breach of the peace, how could anyone ever be prosecuted for such defama-

4 In New York Times Co., the Court characterized Beauharnais as a case involving a publication that was "both" defamatory of a racial group and liable to cause violence and disorder. 376 U.S. at 268.

5 In Garrison, the Court described Beauharnais as involving speech "especially likely to lead to public disorder". 379 U.S. at 70.

tion if, as declared in Ashton, the central element of the offense is unconstitutionally vague?6 Thus, in our view, Beauharnais has been substantially undermined even if not expressly overruled.7

This overview of the Supreme Court treatment of criminal or group libel would be incomplete without a discussion of Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), even though that case involved a civil action for defamation of a private individual. In Gertz, the Court held that a state was not prohibited from permitting civil defamation liability of a private individual to be imposed on the basis of negligence, as long as presumed or punitive damages were awarded only on the basis of a showing of knowing or reckless falsity. In so doing, however, the Court significantly narrowed the reach of its former assertion that "calculated falsehood" deserved no constitutional protection.8 The Justices said that only "false statements of fact" are without constitutional value; ideas and opinions were a different matter.

"We begin with the common ground. Under the

6 In 1969, the Supreme Court dealt a further blow to prosecutions for speech related to breach of the peace when it held that the First Amendment did not permit a state "to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action". Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).

7 Indeed, a growing number of courts have suggested that Beauharnais has failed to survive New York Times, Garrison, and Ashton. See, e.g., Collin v. Smith, 578 F.2d 1197, 1205 (7th Cir. 1978), cert. denied, 439 U.S. 916 (1978) (Court doubts that Beauharnais "remains good law at all after the constitutional libel cases"); Tollett v. United States, 485 F.2d 1087, 1094 (8th Cir. 1973) ("[W]ith the advent of Garrison and Ashton, a strong argument may be made that there remains little constitutional vitality to criminal libel laws"); Anti-Defamation League of B'nai B'rith v. F.C.C., 403 F.2d 169, 174 n. 5 (D.C. Cir. 1968) (concurring opinion of Judge Wright), cert. denied, 394 U.S. 930 (1969) ("[F]ar from spawning progeny, Beauharnais has been left more and more barren by subsequent First Amendment decisions, to the point where it is now doubtful that the decision still represents the views of the Court"); United States v. Handler, 383 F.Supp. 1267, 1277 (D.Md. 1974) (Court agrees with the views of the 8th Circuit in Tollett, supra). See also Report on Proposed Federal Group Libel Legislation, H.Jud.Comm., 88th Cong., 1st Sess. (1963) (Committee staff expresses "serious doubt" as to the importance of Beauharnais as precedent).

8 Cf. Garrison v. Louisiana, 379 U.S. at 75; Time, Inc. v. Hill, 385 U.S. 374, 390 (1965).

First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas." 418 U.S. at 339-40.

In addition, the Court engaged in a rigorous analysis of the state interests purportedly served by defamation actions to determine if those interests were "strong and legitimate". 418 U.S. at 348. The Court recognized that the state had an interest in establishing a mechanism for compensating private individuals for the harm inflicted by defamatory falsehood. 418 U.S. at 341. Unlike public officials and public figures, private individuals do not ordinarily have "a realistic opportunity to contest false statements" and, as a consequence, are "more vulnerable to injury". Id. However, the Court held, the state interest extended no further than compensation for actual injury. 418 U.S. at 348-49. Stiffer penalties, such as punitive or presumed damages, are "private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence". 418 U.S. at 350. As such, they exacerbate "the danger of media self-censorship" and are "wholly irrelevant" to any legitimate state interest. Id.

II
Analysis of House Bill 1018

In light of these principles, we turn to an examination of House Bill 1018. Unlike the statute at issue in Beauharnais, House Bill 1018 does not purport to be concerned with breaches of the peace, nor does it incorporate such a standard into the proposed statute. See Collin v. Smith, 578 F.2d 1197, 1204 (7th Cir. 1978), cert. denied, 439 U.S. 916 (1978).9 Rather, it attempts to resolve First Amendment problems by punishing only group defamation that is knowingly or recklessly false.10

9 If the bill did incorporate such a standard, it would suffer from the same constitutional problems as the criminal libel offense invalidated in Ashton.

10 The bill also attempts to circumscribe its scope by specifying a "scienter" requirement and incorporating some of the limitations normally found in obscenity statutes.

The rationale of the bill hinges on the notion that "calculated falsehood" is not part of the "exposition of ideas" protected by the First Amendment. This premise, however, is not entirely true. At best, only the deliberately false statement of fact is constitutionally unprotected, not ideas and opinions. See Gertz v. Robert Welch, 418 U.S. at 339-40; Collin v. Smith, 578 F.2d at 1203.

In this regard, the type of speech that would be reached and affected by House Bill 1018 is more aptly characterized as opinion or ideology. As the courts have indicated, the line between statements of facts and the expression of ideas and opinions is a fine one at best. See Anti-Defamation League of B'nai B'rith v. F.C.C., 403 F.2d 169, 174 (D.C. Cir. 1968) (concurring opinion of Judge Wright), cert. denied, 394 U.S. 930 (1969) ("[T]his kind of speech, detestable as some of its antisemitic and racist aspects may be, approaches the area of political and social commentary. To this extent, it makes a stronger claim for First Amendment protection."); Collin v. Smith, 578 F.2d at 1203 (Court disagrees that a group defamation ordinance can be said to be limited to "statements of fact", false or otherwise: "To the degree that the symbols in question can be said to assert anything specific, it must be the Nazi ideology, which cannot be treated as a mere false 'fact'".).

These cases suggest what we also perceive. In a republic that prides itself on being a "nation of nations", in a pluralistic society in which, for many, ethnic, religious, and racial identification plays a respected part, it is difficult, if not impossible, to quarantine racial and religious commentary from political discourse generally.

Hence, in the context of social, religious, and political group commentary especially, "statements of fact" cannot in any realistic sense be segregated from the constitutionally protected ideas, opinions, and beliefs with which they are necessarily interwoven. All opinion purports in some sense to be derived from putative "facts", be they true or false, impartial or biased, expressed or implied. It is impossible, in our view, to censor the former in a manner such as proposed by House Bill 1018 without effectively censoring or, at best, unduly stifling the latter. Even a legitimate narrow attempt to reach and prevent only the expression of "false facts" necessarily will have a chilling effect on the constitutionally-protected free public ex-

change of ideas, opinions, beliefs, and, especially, political debate.11

In attempting to separate legitimate from illegitimate speech, legislators may use only the "most sensitive tools". See Speiser v. Randall, 357 U.S. 513, 525 (1957). House Bill 1018, in contrast, employs the bludgeon of a criminal sanction to attempt such a separation. Because of the fine distinction between, and the resultant inability to separate, the expression of "facts" from the expression of "opinion", and because the method of criminal sanction proposed by House Bill 1018 to attempt that separation is so harsh, we believe that the bill would, to borrow from the Supreme Court, unnecessarily and unconstitutionally "exacerbate . . . the danger of . . . self-censorship". Gertz v. Robert Welch, 418 U.S. at 350.

Thus, the speech prohibited by House Bill 1018 is not outside constitutional protection. The question then becomes whether, given the broad reaches and effect of the bill, there exist compelling reasons justifying such an abridgment of speech. In other words, are the interests served by House Bill 1018 sufficiently strong and compelling to outweigh the protections and rights guaranteed by the First Amendment? See Gertz v. Robert Welch, 418 U.S. at 348. We think not.

In our view, House Bill 1018 cannot be justified as a mechanism to compensate individual members of racial or religious groups for the harm of defamatory falsehood.12 Indeed, no member of a large class or group presently has an individual right of action for group defamation. See Annot., Right of Individual Member of Class or Group Referred to in a Defamatory Publication to Maintain Action for Libel or Slander, 70 A.L.R.2d 1382, §3 (1960). And, as detestable as the speech sought to be prohibited by House Bill 1018 may be, groups, as distinguished from individuals, cannot be said to be without a

11 It is noteworthy that, in the past, criminal libel has often been used to punish political speech. See State v. Browne, 206 A.2d 591, 596 (N.J.Sup. 1965) (According to a study of criminal libel cases, "[d]uring the period from 1920 to 1955, there were 91 reported cases that charged criminal libel, and approximately half of that number were classified as distinctly political"); Norvell v. Safeway Stores, Inc., 212 Md. 14, 22 (1957) ("[W]e have found no Maryland case where criminal libel has been brought except in cases of public officials".).

12 As indicated earlier, it is apparent that House Bill 1018 cannot be justified on any breach of the peace theory.

realistic opportunity to contest such false statements. See Gertz v. Robert Welch, 418 U.S. at 341. A group, and its supporters, is far more able than an individual to defend itself in the war of ideas, by marshalling public opinion and ultimately directing listeners to the truth.13

III
Conclusion

In summary, even when calculated falsehoods about groups emerge from political, racial, and religious controversies, the First Amendment requires that the resolution of such issues be left to the public forum of ideas rather than to the criminal courts.14 For these reasons, we believe House Bill 1018 would violate the First Amendment.

It should go without saying that the knowingly false disparagement of the race or creed of others is despicable. We have an obligation to fight it. Indeed, our great strength as a free people is our ability to fight such hateful distortions with the truth, and to win. But we have another obligation as well: to remember that freedom of speech and expression is the cornerstone of our liberties.

Stephen H. Sachs, Attorney General
Robert A. Zarnoch, Assistant Attorney General
Avery Aisenstark
Principal Counsel, Opinions and Advice

13 A 1979 Yale Law Journal note suggests that a group defamation statute could still be viable if it only punished false assertion of facts not appealing to the conscious faculties of the listener and causing serious harm to racial, ethnic, or religious groups. See Note, Group Villification Reconsidered, 89 Yale L.J. 308, 325-26 (1979). However, this student note does not make clear how the bludgeon of the criminal law will separate protected "false opinion" from prohibited "false fact".

14 It is noteworthy that in another sensitive area, commentary about government, "knowing or reckless falsity" would not justify civil or criminal punishment of a libel on government. See Louisiana v. Time, Inc., 249 So.2d 328 (La.App. 1971); Annot., Right of Government Entity to Maintain Action for Defamation, 45 A.L.R.3d 1315 (1972).