So to Speak: The Free Speech Podcast – EP. 250

Episode Title: Civil Rights, Hate Speech, and the First Amendment
Date: August 28, 2025
Host: Nico Perrino (FIRE)
Guest: Professor Samantha Barbas (University of Iowa)
Notable New Article: "How American Civil Rights Groups Defeated Hate Speech Laws" (Journal of Free Speech Law, June 2025)

Overview

This episode dives deep into the history, philosophy, and legal landscape of hate speech regulation in America, with a focus on why the U.S. stands alone in broadly protecting hate speech under the First Amendment. Professor Samantha Barbas, author of a new law review article and forthcoming book on the topic, joins host Nico Perrino to trace the evolution of civil rights groups’ strategies—from calls for censorship to fierce defense of speech rights, even for those they abhor.

Key Discussion Points & Insights

1. Why Are There No American Hate Speech Laws?

• Barbas’ Research Motivation: Exploring why laws restricting hate speech are commonplace elsewhere but not in the U.S.
• Historical Arc: Between 1915 and 1950, both culture and law accepted hate speech restrictions, but post-1950, America diverged sharply.
  • "Why are there no hate speech laws in America of the kind that exist pretty much everywhere else in the world? Why did the US take this exceptional path?" – Professor Barbas (02:36)

2. Early 20th-Century Context (1915–1950): Laws and Censorship

• Birth of Hate Speech Laws: The Great Migration and WWI fueled social tensions, prompting early municipal and state hate speech codes.
• Case Study: The Birth of a Nation (1915)
  • Legislators sought to ban the film to quell unrest, not necessarily to protect African-American dignity.
  • The NAACP, though internally divided, pushed for censorship due to lack of ability to respond via counterspeech.
• Censorship's Backfire: Bans led to free speech martyrdom for D.W. Griffith and increased the film’s notoriety—a prototype for the "Streisand Effect."
  • "People went to see the film because they wanted to know what was so controversial and what people were clamoring to suppress." – Barbas (11:54)

3. Civil Rights Groups and the Limits of Regulation

• NAACP’s Shift: Initial censorship advocacy gave way to boycotts and pickets, learning that legal suppression often backfired or was unenforceable.
• Jewish Civil Rights Groups & Ford’s Dearborn Independent: Initial support for hate speech laws and litigation shifted to favor counterspeech and settlements, recognizing the long-term risks to minority advocacy.
  • Lewis Marshall (AJC): Opposed hate speech laws realizing "they will ultimately hurt the cause of civil rights because they will probably be used against the speech of civil rights activists." (14:20)

4. Defamation Law & Group Defamation

• Legal Evolution: Group defamation, akin to hate speech regulation, never took root as a constitutional principle in the U.S.
• Beauharnais v. Illinois (1952) briefly upheld group defamation laws, but this precedent was abandoned post–New York Times v. Sullivan (1964).
• Modern Standards: The requirement to prove “actual malice” for public figures/officials greatly limits successful defamation actions.

5. Quarantine & Immunization: Non-Regulatory Strategies

• Quarantine (‘Silent Treatment’): American Jewish Committee and others adopted a strategy of ignoring hate-mongers, starving them of publicity.
  • "If we don't give any publicity or attention to these hate groups, they will eventually disappear... [It] was really successful." – Barbas (24:57)
• Manual Advice: "Treat the hate peddler as an insignificant rat who does not deserve public attention rather than a powerful personage." (25:28)

6. Civil Rights Era: Defense of Extreme Speech

• Postwar Reversal: Civil rights groups like the NAACP and AJC joined the ACLU in actively opposing hate speech laws, realizing their potential for misuse against their own advocacy.

• Brandenburg v. Ohio (1969): Landmark Supreme Court case, assisted by civil rights lawyers, established the “imminent lawless action” test, nearly eradicating hate speech regulations in the U.S.

  • "Brandenburg does away with the possibility of hate speech laws in America." – Barbas (31:51)

• Notable Quote (Eleanor Holmes Norton, ACLU attorney):
  "When I defend a left winger's right to dissent, I'm not saying very much... but when I'm defending a racist's rights, the object lesson is dramatically clear." (32:24)

7. 1970s: The Reversal—From Defense to Regulation Again

• J.B. Stoner (1972) and Skokie Case (1977-78):
  • ADL and NAACP move to suppress racist campaign ads, petitioning FCC, then fighting Nazi marches in Skokie, IL—a town with thousands of Holocaust survivors.
  • Skokie became a national touchstone regarding tolerance of hateful speech as constitutional principle (39:27–42:12).

Shift from “Quarantine” to “Dignitary Harm”

• Focus shifted from preventing violence to preventing emotional harm and dignitary insults; courts, however, remained wary of these subjective standards.
• "We really see this emphasis on harm... but we don't really see a lot of discussion about the harm that the suppression of speech can cause." – Barbas (39:49)

The Streisand Effect & Publicity:

• Suppression often gave hate speakers a larger national platform, reinforcing the arguments against legal bans.

8. Today: Law, Public Opinion, and the Future

• Law: U.S. remains highly speech-protective; hate speech laws seen as unlikely to survive constitutional scrutiny.
• Public Opinion: Deeply divided; many Americans say they’d support hate speech bans, though support drops when applied to specific cases.
  • "Half of Americans today support hate speech laws." – Barbas (44:13)
• Campus Climate: Students fear social not legal penalties for “wrong” views.
• Educational Gaps: Many young people learn little about why the U.S. adopted such strong First Amendment protections or how civil rights groups shaped this evolution.

Notable Quotes & Memorable Moments

• On Censorship’s Backfire:
  "It gave Griffith an opportunity and a platform to vaunt himself… as a free speech martyr, and to gain even more of a following." – Barbas (10:15)
• Eleanor Holmes Norton on Defending Racists:
  "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?" (31:51)
• On Shifting Motivations for Regulation:
  "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 well being, dignity, psychological well being." – Barbas (37:51)
• "Streisand Effect":
  "[Griffith] was a free speech martyr, and... censorship... made it that commercial success." – Barbas (11:54)
• On “Poison Gas” Laws:
  “[Hate] speech laws are like poison gas… they seem like a good tool… But the wind has a way of shifting.” – Nico, paraphrasing Ira Glasser (44:13)

Timestamps for Key Segments

• 00:00–03:00 – Introduction; overview of hate speech controversy
• 03:00–07:50 – Early hate speech laws, censorship of The Birth of a Nation, and NAACP conflict
• 09:08–12:14 – NAACP shifts away from censorship after experiencing the Streisand Effect
• 13:28–17:27 – Jewish groups, Henry Ford, and evolution from litigation to counterspeech
• 17:45–18:39 – Supreme Court’s Beauharnais v. Illinois and its legacy
• 21:07–23:08 – The risks of hate speech laws being turned on minority activists
• 23:51–25:35 – Quarantine/silent treatment policy against hate groups, success stories
• 26:55–31:51 – WWII/Cold War era: civil rights coalitions defend free speech; Brandenburg case
• 33:26–39:49 – Shift away from defense (Stoner and Skokie); rise of “dignitary harm” rationale
• 41:42–47:31 – Skokie’s lessons and today’s public opinion versus legal doctrine
• 47:31–51:17 – Campus climate; lack of civics education; dangers of social versus legal penalties
• 51:17–54:53 – Who would administer hate speech laws? Reflections; closing book/personal recommendations

Recommendations and Resources

• Read: "How American Civil Rights Groups Defeated Hate Speech Laws" (Barbas, Journal of Free Speech Law)
• Watch: Documentary on Skokie (recommended by Barbas; see show notes)
• Book: "Actual Malice" (Barbas) on New York Times v. Sullivan and first amendment history

Tone Summary

Thoughtful, informed, cautiously optimistic about free speech, with historical rigor and a personal, conversational touch. Both Perrino and Barbas display deep respect for the complexity of the subject, citing vivid examples from the past to illuminate urgent questions today.

Final Takeaway

America’s unique path toward robust First Amendment safeguards—championed by groups who themselves were frequent victims of hate speech—holds vital lessons: that laws meant to protect can be double-edged, that censorship often empowers those it means to silence, and that the defense of hateful speech has, paradoxically, been a tool for marginalized groups’ liberation.