[*PG213]RACIAL AND ETHNIC GROUP DEFAMATION: A SPEECH-FRIENDLY PROPOSAL

Michael J. Polelle*

Abstract:    In AIDA v. Time Warner Entertainment Company, currently before the Illinois Supreme Court, the American Italian Defense Association (AIDA) alleges that the television series “The Sopranos” portrays the criminal and psychopathically depraved character of the Mafia underworld as the dominant motif of Italian and Italian-American culture. The author, drawing upon his experience as co-counsel to AIDA, submits that the law should provide a remedy for racial and ethnic group defamation. It is paradoxical for the law to only allow a remedy for individual defamation. The current civil damage lawsuit for defamation is inapplicable because courts consistently deny damages for group defamation by refusing to recognize the individual harm caused by group defamation. Likewise, criminal defamation statutes are now found in fewer than half the states and rarely used by prosecutors. This Article proposes enacting a declaratory judgment statute at the state level to remedy group racial and ethnic defamation. This suggested remedy takes the form of model legislation in the Appendix to this Article.

I’m in the process of dealing with these Guido motherfuckers.

—Will Smith, in Enemy of the State (Touchstone Pictures 1998)

Introduction

Freedom of speech and freedom from racial and ethnic discrimination are two fundamental values in American society that stem from both democratic governance and a population of increasingly [*PG214]diverse racial and ethnic groups. As the United States shifts symbolically from a melting pot to a mosaic, the necessity of respect for all racial and ethnic groups takes on increasing importance. Social harmony depends on peaceful co-existence and respect while at the same time, the spirit of open discussion and public debate remains an essential part of our constitutional heritage.

This Article proposes that the law should provide a remedy for racial and ethnic defamation because it is paradoxical for the law to allow a remedy for individual defamation but no effective remedy for group defamation. In Only Words, Professor MacKinnon attacks the distinction between a recovery for individual defamation but not for group defamation by pointing out that the distinction is in conflict with our equal-protection jurisprudence.1 When a discriminatory act is involved, courts readily perceive that an invidiously discriminatory attack on a racial or ethnic group affects everyone within the group. In such cases, courts readily accept that the individual is only injured precisely because of his or her affiliation with a racial or ethnic group, unlike the group-defamation scenario.2 To rigidly distinguish individual harm in such cases from group harm would be the equivalent of always considering crimes as isolated facts in a criminal law context and never as part of a group conspiracy despite any evidence to the contrary. An individual’s social autonomy or subordination is inextricably linked to the mass stereotype of the individual’s racial or ethnic group.

The suggested remedy for group racial and ethnic defamation, which takes the detailed form of model legislation in the Appendix to this Article, is a declaratory judgment procedure. This procedure avoids the constitutional and policy problems of monetary damages, injunctive relief, or criminal penalties. Furthermore, it reflects the reality that the Federal Communications Commission (FCC), applying a laissez-faire ethic, is increasingly unwilling to regulate the electronic media. The need for a remedy arises because classic counterspeech as a remedy is largely illusory in an age of multi-billion-dollar media megacorporations which are on the verge of becoming the media landlords of the marketplace of ideas.

[*PG215]I.  AIDA v. Time Warner Entertainment Company

The genesis of this Article is the author’s experience as co-counsel for the American Italian Defense Association (AIDA) in a civil action filed in the Chancery Division of the Circuit Court of Cook County, Illinois against Time Warner Entertainment Company, L.P., a subsidiary of AOL Time Warner Entertainment Company, for violation of Article I, Section 20 of the Illinois Constitution (entitled “Individual Dignity”). AIDA claimed that Time Warner’s distribution through Home Box Office (HBO) of The Sopranos, a cable television miniseries, in whole or part violated this section of the Illinois Constitution. AIDA filed its lawsuit solely for a declaratory judgment, without any ancillary request for damages or injunctive relief.3

Article I, Section 20 of the state Bill of Rights provides: “To promote individual dignity, communications that portray criminality, depravity or lack of virtue in, or that incite violence, hatred, abuse or hostility toward, a person or group of persons by reason of or by reference to religious, racial, ethnic, national or regional affiliation are condemned.”4 The prototype for this constitutional provision was an Illinois criminal libel statute that had punished publication or portrayals of “depravity, criminality, unchastity, or lack of virtue of a class of citizens of any race, color, creed or religion.” The United States Supreme Court in Beauharnais v. Illinois upheld the constitutionality of this statute in affirming a $200 fine against Beauharnais for distributing leaflets which attributed criminal proclivities to African-Americans.5 Imputations of criminality are one of the most common [*PG216]categories of defamation.6 In addition to being defamatory, imputations of a criminal offense historically have been considered as slander per se because of their serious threat to reputation and, therefore, do not require proof of special damage.7

The AIDA complaint alleged that the Individual Dignity Clause of the Illinois Bill of Rights was violated in that one or more episodes of The Sopranos portrayed the criminal and psychopathically depraved character of the Mafia underworld as the dominant motif of Italian and Italian-American culture.8 AIDA’s contention was that the Italian-American characters in The Sopranos were almost unanimously portrayed as lacking in civility, respectability, or virtue, or as condoning Mafia attitudes and misdeeds, even when they were not directly portrayed as Mafia members. More specifically, the complaint alleged that a particular episode of The Sopranos represented either expressly or by implication that criminality is “genetical” [sic] or in the blood of Italian-Americans.9 The filing of the lawsuit generated a controversial public debate about the merits of either The Sopranos or the lawsuit, and as a result, the author made a number of media appearances.

It must be emphasized that without the lawsuit, the author and representatives of AIDA, as this Article will show, would have had no effective access to the marketplace of ideas in daring to criticize a show as well-advertised as The Sopranos and a media enterprise as dominant as Time Warner Entertainment Company. AIDA, a not-for-profit corporation, had a membership just over one hundred persons at the time the lawsuit was filed. It was organized for charitable purposes and specifically for the education of the public regarding the social contributions of Italian immigrants and “the opposition by lawful means of all forms of negative stereotyping, and defamation of [*PG217]Italian Americans.”10 On the other hand, the defendant, Time Warner Entertainment Company, held consolidated assets of $85 billion as of December 31, 2001. It is also a subsidiary of AOL Time Warner, the world’s largest provider of Internet services and the world’s leading media and entertainment company, with over $208 billion in consolidated assets. Time Warner Entertainment Company’s cable network business involves chiefly its ownership and management of the HBO Division, the nation’s most widely distributed pay television service. HBO, together with its sister service, Cinemax, accounted for about 38.1 million subscribers as of December 31, 2001.11

HBO is known for the exhibition of pay television original movies and especially for the television series known as The Sopranos. There is no doubt that The Sopranos has been both popular and widely acclaimed by a number of media critics.12 But the passing popularity of racial or ethnic depiction says little or nothing about the stereotypical or defamatory nature of the depiction. The Birth of a Nation, for example, originally entitled The Clansman, was acclaimed as a cinematic masterpiece and its creator, D.W. Griffith, was seen as a visionary film artist when the film was released in 1915, even though the film depicted African-Americans as villains and the Ku Klux Klan as the South’s savior.13 Despite street protests and opposition by the NAACP due to the racist and stereotypical nature of this popular movie, the Directors Guild of America continued to bestow the “D.W. Griffith Award” upon twenty-eight directors for distinguished motion picture direction from 1953 until 1999, when the award was finally retired because of its unsavory connection to racial stereotyping.14

Without expressly deciding any First Amendment issue, the Chancery Division of the Circuit Court of Cook County granted the motion of Time Warner Entertainment Company to dismiss the com[*PG218]plaint with prejudice. The court granted the motion both on the basis that AIDA lacked standing, even though the company never raised the issue, and on the more fundamental basis that the legislative history of Article I, Section 20 proved this section of the Illinois Bill of Rights was “purely hortatory” and merely a “constitutional sermon,” without any legal meaning or effect.15 On June 28, 2002, the Illinois Appellate Court affirmed the dismissal of the complaint on the ground that AIDA lacked standing to assert the claim and on the ground that the Individual Dignity Clause of Article I, Section 20 was purely hortatory. The case is now before the Illinois Supreme Court on a petition for leave to appeal.16

II.  The Group Harm of Racial and Ethnic Stereotyping

The following section summarizes the modern development of mass media by the Nazis as a tool of stereotypical indoctrination and social manipulation. Studies have indicated that the mass media does have an impact on the way ethnic and racial groups are perceived, even in democratic states. Because of the horrific effects of Nazi racist propaganda, both contemporary national and international laws have condemned and punished group defamation based on race and ethnicity. Aside from the significant exception of the United States, major democratic nations have seen no conflict between freedom of expression and a prohibition against speech that incites racial or ethnic hatred or that defames a racial or ethnic group. Like other immigrant groups, Italian Americans have been stereotyped and discriminated against. Contrary to fact, the Italian-American has become the criminal archetype of contemporary American society through the power of the mass media.

A.  A Brief History of Racial and Ethnic Stereotyping
and Current Recognition of the Harm

It is a cultural commonplace that Nazi Germany used the defamatory art of racial and ethnic stereotyping to make the imprisonment and death of Jews acceptable to public opinion. Generations of stereotyping existed, thus laying the groundwork even before Nazis arrived on the scene. Going back to the Middle Ages, the so-called [*PG219]“blood libel” spread that gentile blood was necessary for the baking of Passover matzah. In the eighteenth and nineteenth centuries, anti-Semitic political groups in Europe used this defamatory myth to justify their prejudice against Jews.17 The Protocols of the Elders of Zion was a tract, probably concocted by the Czarist secret police, to circulate a fabricated account of a Jewish plot to take over the world. Since 1920 more than one hundred editions, reprints, and new versions of this ethnic attack have appeared in the English-speaking world. The Nazis admired Henry Ford for his endorsement of the views in this pamphlet, even though Ford later recanted under pressure of a libel lawsuit.18

Building on this history of group defamation, the Nazis used the new technology of film to dehumanize Jews in the cinemas of Germany. The best example of this genre of group vilification is a classic propaganda film cleverly crafted in a documentary style, which depicted Jews as a plague spreading across the world. The film drew an explicit parallel between rats and Jews, as the camera panned to a pack of swarming rats.19 Adolf Hitler provided the psychological insight for the effectiveness of group libel based on racial or ethnic origin by the concept of the “big lie.”20 In Mein Kampf, Hitler adopted the principle that a “big lie” is more effective than a petty lie, explaining that a nation’s masses are more easily taken in by big lies because they find it difficult to believe that anyone would be impudent enough to fabricate on such a massive scale.21 Even when facts are [*PG220]marshaled to counter the big lie, an aura of truth still lingers around the lie.22

No reasonable person would suggest that the racial and ethnic malevolence shown by the Nazi media toward the Jews in the pursuit of political objectives exists in the United States. Even though an evil ideology does not motivate American media interests as it did in Nazi Germany, the American electronic media nonetheless exert a powerful influence on the perception of Americans. One advertising study of the psyche of the American public found that television holds “an absolutely central place in people’s lives,” with 68% of the national sample finding more pleasure and satisfaction in watching TV than in being with friends, helping others, taking vacations, or pursuing hobbies.23 The study found television to be the prime method of unwinding in America, surpassing relaxation, vacations, music, or reading.24 Ninety-nine percent of American homes are equipped with television; the average television is on for over seven hours per day.25 The millions spent by advertisers attest to the belief that the media affects personal attitudes toward products and services. It is unlikely that the media have no similar effect on racial and ethnic perceptions.26

Recognizing the harm of perpetuating these stereotypes, international law provides that racial or ethnic group defamation and com[*PG221]munications that foment racial hatred are not protected speech.27 Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination considers group defamation a categorical exception to the right of free expression.28 Furthermore, a number of nations have found laws restricting racial hatred and group defamation to be compatible with their democratic principles of government. By use of a criminal code amended in 1960, Germany makes it a criminal offense to insult a group of people or to maliciously cause the group to be vilified or defamed.29 Since the 1970s, France has extensively applied laws, both civilly and criminally, prohibiting racial incitement, group libel, and racial injury.30

Even nations that share the common law tradition with the United States, such as Great Britain, Canada, India, and Nigeria, prohibit defamatory speech affecting racial groups. Each nation typically requires a mens rea of one sort or another, probably because these regulations are found in the penal laws of each of the four common law nations.31 In Regina v. Keegstra, the Canadian Supreme Court upheld the validity of a statute that punished the defendant for disseminating hate propaganda.32 The defendant, Keegstra, had called Jews [*PG222]“money-loving” and “child killers” and claimed that Jews fabricated the Holocaust.

These nations recognize from bitter historical experience, not fully shared by the United States, that defamatory racial and ethnic stereotypes harm people and can even lead to their destruction. Until recently, one might have assumed that the only harm to the stereotyped group came from the diminished respect that other groups in society had for the stereotyped group. A stereotype, such as that Gypsies are liars and thieves, can permeate a society and result in diminished cultural, political, and economic opportunities for the stereotyped group, which is then invidiously discriminated against by the social consequences of stereotypical discourse.

It is possible, however, that the most insidious harm caused by stereotypes is not the diminished respect of others who are taken in by the stereotype, but the internalized acceptance of the stereotype by the targeted victim. A study found that students taking academic tests perform worse if confronted with cultural stereotypes prior to the test.33 This negative result occurred even when the tested group was not a racial or ethnic minority chronically targeted by social stereotypes.34 Referred to by Professor Claude M. Steele, one of the authors of the study, as “stereotype threat,” this concept encompasses the extra pressure members of a stereotyped group feel in test situations, with the result that the group members, despite their individual abilities, tend to fulfill the stereotyped expectations of how their racial, ethnic, or gender group is expected to perform on such tests. To be affected by the stereotype the stereotyped person need not believe the stereotype nor even take it personally.35

B.  The Italian-American Experience: Past Discrimination
and Current Ethnic Stereotyping

Like other ethnic groups from southern and eastern Europe, Italian-Americans have suffered discrimination because of a difference in culture and language. The Supreme Court specifically noted in University of California Regents v. Bakke that immigrants from southern, middle, and eastern Europe, including Italian-Americans, continued [*PG223]to be shunned in the upper levels of corporate America because of their ethnic origins.36 Another court has recognized that Italian-Americans in particular suffer from a history of “stereotyping, invidious ethnic humor and discrimination.”37 This sometimes led to bigoted violence against Italian-Americans, such as the lynching of eleven Italians in New Orleans in 1891, which remains the largest single lynching in United States history.38

World War II was also a traumatic experience for Italian-Americans. In the Wartime Violation of Italian-American Civil Liberties Act, Congress found that more than 600,000 Italian immigrants in the United States had been branded enemy aliens.39 Government measures during the war required these Italian immigrants not only to carry identification cards but also to endure travel restrictions and seizure of their personal property.40 More than 10,000 immigrants on the West Coast were forced to leave their homes and prohibited from entering coastal zones solely because of their ethnicity. Although not on the same massive scale as Japanese-Americans, thousands of Italians were arrested and hundreds interned in military camps similar to those that housed Japanese-Americans. The full extent of the civil rights violations remains unknown, and consequently, Congress has ordered the Attorney General to conduct a comprehensive review of the treatment of Italian-Americans by the United States government.41

Another example of discrimination against Italian-Americans was addressed when the chancellor of the City University of New York included Italian-Americans as an affirmative action group, because of [*PG224]the widespread belief that the university discriminated against Italian-Americans.42 After the discovery of evidence that the university had discriminated against Italian-Americans, both on an individual and class basis, a judge later issued a preliminary injunction, which resulted in a settlement.43 More broadly, judicial precedent indicates that Italian-Americans, like other Caucasians, can be considered a “race” for purposes of a civil rights action under 42 U.S.C.  1981.44

Nevertheless, the media emits a stream of discriminatory and stereotypical Italian-American roles. Given that violence, lust, and anti-social characters attract audiences, the temptation exists to find the stock “villain” who symbolizes these qualities and whose villainy will help attract and keep audiences. In the film Enemy of the State, the hero actor, Will Smith, psychologically links the disgusting Mafia characters with Italian-Americans by expressly referring to those “Guido motherfuckers.”45 This hardcore ethnic slur is addressed not to the criminal element, as would be appropriate, but to the Italian-American community, with the almost subliminal assumption the two concepts are substantially interchangeable. The raised consciousness of the film industry would most likely not permit a comparable slur of African-Americans, Hispanics, or perhaps any other racial or ethnic group.46 Given that the celluloid image of the savage Native American [*PG225]or menacing African-American is no longer politically correct, it is understandable that a less politically cohesive group, such as Italian-Americans, should be nominated for the role of media villain. The forbidden attributes of violence, lust, and criminality projected onto the Mafia with a capital M becomes mythologized like the Noble Savage or Childlike Negro and becomes the archetype of the Criminal Italian. That fewer than 1% of Italian-Americans are involved in organized crime, according to the FBI’s own statistics, is irrelevant to a media-massaged public perception because racial and ethnic generalizations have a far more powerful hold on public imagination than any fact.47

One Italian-American academic finds a Faustian bargain made by earlier Italian-American immigrants who, unlike African-Americans and Jewish-Americans, withdrew from public discourse in exchange for being let alone. The early Italian-American immigrants developed a sheltered sense of identity that required a low profile, a shedding of cultural roots, and social passivity regarding racial and ethnic discrimination in the larger society.48 The poverty of southern Italians who came in waves of immigration and the shame of Fascist Italy, at war with the United States, triggered an urgency to become more American than the Pilgrims and a highly developed defense mechanism of denial in the face of public stereotyping.49 The author recalls a respected Italian-American judge with a name that ended in vowel who observed during a public lecture how hard it was to get elected with a name unlike the “American” name of an Irish-American candidate. The irony of this social conditioning is that the names of an[*PG226]other immigrant ethnic group in a multicultural and multiethnic society are assumed to be “American” names while one’s own name is not. Much as other Americans were surprised to find out that African-Americans were not really happy behind the blackface of another generation, it may also surprise some that Italian-Americans are increasingly unwillingly to fatalistically accept their ethnic profiling as gangsters.

In resisting what it felt to be the latest in a barrage of defamatory stereotyping of Italian-Americans exemplified by The Sopranos, AIDA and its members discovered that the media have a powerful role to play in the way racial and ethnic minorities view themselves and are viewed by others. The National Italian Foundation commissioned a survey by Zogby International to determine the impact of televised ethnic stereotyping on teenagers. When asked to identify the role a person of a particular ethnic or racial background would most likely play in a movie or on television 34.3% said Italian-Americans would be cast as crime bosses, the highest percentage of all ethnic stereotypes.50 The more television these teenagers watched the more likely they were to cast Italian-Americans in the role of crime boss.51 The study concluded that: (1) teens learn the worst parts of their heritage from entertainment industry stereotyping; and (2) the perception that teens have of other racial, ethnic, or religious groups is shaped by entertainment industry stereotypes.52

Although the results highlighted may be those affecting Italian-Americans, this is not to deny the stereotyping that occurs with other racial and ethnic groups. A respected consortium of medical professionals has concluded that, with the average American child watching television as much as twenty-eight hours a week, well over one thousand studies point overwhelmingly to a causal link between media violence and aggressive behavior in some children.53 A more recent study [*PG227]found a noteworthy association between the time spent watching television and the likelihood of subsequent aggressive acts toward others, even when other possible causes were taken into account.54 It is unlikely that television has any less of an exacerbating affect on racial stereotyping.

Media stereotyping of Italian-Americans and other racial and ethnic groups affects not only the next generation, but the current one. The Response Analysis Corporation studied the public image of Italian-Americans on behalf of the Commission for Social Justice of the Order of Sons of Italy in America. Among the negative characteristics, the most glaring was that 74% of the sample perceived Italian-Americans as involved with organized crime, far more than attributed criminal tendencies to other racial and ethnic groups.55 This high percentage suggests a persistent and emphatic reinforcement of this negative stereotype by films, television, depictions, and other mass media treatments. Concerned that the media and, specifically, television shows like The Sopranos were unfairly damaging the collective reputation of 20 million Italian-Americans, the fifth largest ethnic group in the United States, Congressional Representative Marge Roukema has sponsored a concurrent resolution of Congress calling on the entertainment industry “to stop the negative and unfair stereotyping of Italian-Americans” and to undertake “an initiative to present Italian-Americans in a more balanced and positive manner.”56

Research by the Italic Studies Institute supports this suspected connection between the false public stereotype of generalized Italian-American criminality and the role of the film industry in perpetuating that myth. The Image Research Project of the Italic Studies Institute surveyed films produced in the United States during the years 1928 [*PG228]through 1999.57 After four years of research, the project found a consistently negative portrayal of Italian-Americans and Italian culture in 74% of the films produced in that period.58 Images of Italian-Americans as violent criminals predominated in 41% of the films surveyed, followed closely by 33% of the films in which those of Italian heritage are depicted as boors, buffoons, bigots, or socially undesirable. Ethnic images that were multifaceted, rather than stereotyped, or positive or heroic constituted only 26% of the films.59 The influence of The Godfather (1972) was dramatic. Of all Italian mob films, only a quarter were produced before 1972, and three quarters after The Godfather opened the floodgates of copycat Mafia films.60 The ability of the movie industry to fictionally shape public perceptions of an ethnic group is illustrated by a finding of the Institute that from 1928 through 1999, only 14% of Mafia movies were based on real characters or events. The remaining 86% were based on fictionalized characters or events.61

III.  Counterspeech in a Mass Media Marketplace of Ideas

Defamation occurs when a communication harms the reputation of another person so as to lower that person in the estimation of the community or as to deter other persons from associating or dealing with that person.62 One of the most persistent rationales for freedom of speech and press has been the marketplace-of-ideas metaphor invoked by Justice Oliver Wendell Holmes in the dissenting opinion of Abrams v. United States: “[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market.”63 [*PG229]AIDA’s attempt to negotiate some kind of accommodation with Time Warner Entertainment Company, a corporation with consolidated assets of $24.8 billion and part of an even larger AOL Time Warner, Inc. conglomerate, bordered on the ludicrous. With under two hundred members, AIDA had no bargaining power to insist on any disclaimers or clarifications related to the symbolic representation of Italian-Americans in The Sopranos. The opportunity of AIDA and similar citizens’ groups to enrich public debate through counterspeech in the mass media marketplace is virtually nonexistent. The framers of the United States Constitution could not have foreseen the technological developments and economic barriers to market entry that ensure not only that freedom of the press belongs to those who can afford a modern printing press, but also that freedom of speech in the electronic media market belongs to those who can buy their own cable or television system.

In his now classic work, The System of Freedom of Expression, Professor Emerson observed even then that the most significant threat to freedom of expression was “the overpowering monopoly over the means of communication acquired by the mass media.”64 In 1967, he noted that out of 1547 cities with daily newspapers, only sixty-four cities had a competing daily newspaper, and three huge networks controlled what was seen on television.65 With the exception of ABC, the other two major television networks of CBS and NBC were purchased by companies with little or no experience in television programming and whose executives were unaccustomed to doing business under the public-interest limitations of television programming.66 More than just newspapers and television are at stake. Six companies now control the entirety of American mass media: General Electric, Viacom, Disney, Bertelsmann, Time Warner, and Rupert Murdoch’s News Corporation.67 Even before AOL’s merger with Time Warner, the six had [*PG230]more annual media revenues than the next twenty media firms combined. Now, with the historic merger of the world’s largest Internet provider AOL and Time Warner, the resulting AOL Time Warner Inc. has become a corporation worth $350 billion.68

Time Warner Entertainment Company, L.P., the defendant in the AIDA lawsuit, persuaded the United States Court of Appeals to hasten the media consolidation of cable systems and television by striking down as arbitrary and capricious the FCC cable/broadcast cross-ownership rule in Fox Television Stations, Inc. v. F.C.C..69 This rule prohibited a cable television system from carrying the signal of any television broadcast station if the cable system owned a broadcast station in the same local market.70 The stage is now set for the consolidation of [*PG231]cable and traditional broadcasting, which many originally saw as competitors in the marketplace of ideas. Additionally, a second stage is set for the future consolidation of television networks themselves. On April 19, 2001, the FCC announced that it had amended its dual network rule to permit any one of the four major television networks—-ABC, CBS, Fox, and NBC—-to own and control any emerging network, such as UPN and WB.71 A parallel drive toward consolidation is also occurring at the local station level. Effective November 16, 1999, the FCC revised its duopoly rule to permit any entity to own, operate, or control two television stations licensed in the same designated market area under certain conditions.72

The FCC safeguards of the fairness doctrine, the political editorial rules, and the personal attack rule were designed to ensure that viewpoint diversity had some minimal respect in the monopolistic setting of the mass media. The Supreme Court in Red Lion Broadcasting Company v. F.C.C. upheld the right of the FCC to adopt by regulation the fairness doctrine and its derivative political editorial rules and personal attack rule.73 The decision was based on the language and legislative history of the Federal Communications Act, which, since 1927, required broadcasters to operate in the “public interest.”74 The fairness doctrine generally required broadcasters to devote a reasonable amount of time to the discussion of controversial issues by providing fair coverage of opposing positions. When a federal court of appeals stated that the fairness doctrine was not codified in the 1959 amendments to the Federal Communications Act, the FCC re-evaluated its fairness doctrine regulation and concluded that the doctrine contravened the First Amendment and disserved the public interest.75

[*PG232] The derivative political editorial rules and political attack rules thereafter lived on borrowed time. The FCC abandoned the fairness doctrine in favor of a deregulated electronic media industry at a time when the industry was becoming increasingly centralized. The political editorial rules provided that when a broadcaster endorsed or opposed a legally qualified political candidate, the broadcaster had to notify the other candidates and give them a reasonable chance to respond.76 The personal attack rule, of particular importance to those countering racial and group defamation, provided that if in the course of broadcasting a controversial issue an attack was made “upon the honesty, character, integrity or like personal qualities of an identified person or group,” the broadcaster had to notify the person or group attacked no later than a week after the attack, provide a transcript of the attack or accurate summary if not available, and offer a reasonable opportunity to respond over the broadcaster’s facility.77

The personal attack rule provided extremely limited protection to groups alleging attacks based on race or ethnicity. Infrequent and insubstantial racial slurs were not enough to deny a television broadcast license.78 Even where the Polish American Congress properly processed a substantial complaint, both on fairness and personal-attack grounds, through the FCC procedures, a federal appellate court found the personal attack rule unavailable to the Polish-American community, despite a series of “Polish jokes” told on the [*PG233]Dick Cavett show sponsored by the ABC network. The appellate court concluded that, since no controversial issue of public importance existed, neither the fairness doctrine nor its corollary, the personal attack rule, could be invoked.79 A federal appellate court finally dismantled the personal attack rule by granting a mandamus against the FCC to compel repeal of both the personal attack rule and the political editorial rules. Instead of deciding the merits of the rules or whether they even violated the First Amendment, the court negated the rules for the simple reason that the FCC had unreasonably delayed its own decision for over two decades.80 Without such rules, the Supreme Court has made it clear that no one has a constitutional or statutory right of access to a broadcast station and that the electronic media are not common carriers required to broadcast contrary views.81

IV.  The Failure of Civil Actions for Group Defamation

Those who attempt to use the civil law of defamation to recover damages for group defamation based on race or ethnicity encounter an enormous doctrinal barrier. Generally, defamation of a large group is almost never actionable, either by the group itself or by any individual within the group.82 What constitutes a “large” group, as distinct from a “small” one, is uncertain.83 The larger the group, the less [*PG234]likely it is that the individual plaintiff can establish that he or she was identified personally by the group defamation. One writer has flatly stated that a member of a political party, a race of people, or other large group that has been defamed will not be able to establish the individual identification necessary for personal defamation.84 This leads to a legal paradox: the more expansive the defamation, the more likely it is that the defamer will totally escape any civil liability. The perverse lesson to the would-be defamer is to defame largely.85

Possibly to mitigate the relativistic notions of “large” and “small,” the Restatement (Second) of Torts arguably creates more confusion because it keeps the concepts of “large” and “small” groups, but does not require that this distinction be absolutely determinative. The Restatement (Second) of Torts  564A provides:

One who publishes defamatory matter concerning a group or class of persons is subject to liability to an individual member of it, but only if,

(a) the group or class is so small that the matter can reasonably be understood to refer to the member, or

(b) the circumstances of publication reasonably give rise to the conclusion that there is a particular reference to the member.86

[*PG235] In commentary, the Restatement (Second) of Torts acknowledges the impossibility of setting a definite limit between a “large” and “small” class or group but then notes that cases permitting a plaintiff’s recovery involved “numbers of 25 or fewer.”87 The result is a type of self-fulfilling prophecy because most authorities now rather rigidly agree the group must consist of twenty-five or fewer members in order for a member of the group to sue.88 Sometimes the group is considered small, but it is not clear exactly how many members were in the small group.89 Other times courts have tweaked the “small” group rule a bit by extending it to thirty members.90 At the other extreme, a defamation action brought by more than one million American cattle farmers against television talk-show host Oprah Winfrey, exceeded the [*PG236]unusually generous 740-person line of demarcation between a “large” and “small” group set by the Texas courts.91 The only hope for a member of an obviously large group is to claim that he or she is a member of an identifiable small subset within the large group.92 In the classic case of Neiman-Marcus v. Lait, a group of 382 saleswomen was too large to permit any one of the saleswomen to sue, even though the entire class may have been defamed.93

Ultimately though, the decisive factor under the Restatement (Second ) of Torts is not the size of the group, but whether the group defamation reasonably implicates the individual plaintiff. Usually the very nature of a small group means that a defamatory statement as to all or fewer can reasonably apply to the plaintiff member, such as a defamatory statement that all but one person out of a group of twenty-five are thieves. This is not, however, always inevitable. For example, a defamatory statement that one out of a group of twenty-five has stolen an automobile may not sufficiently defame any particular member of the group under the Restatement (Second) of Torts test.94 Conversely, it is possible for even a member of a so-called large group to sue in an unusual situation. The statement, “All lawyers are shysters,” may be defamatory as to an individual lawyer if the words are published when the lawyer is the only lawyer present and the context indicates the speaker is making a personal reference to that lawyer.95

[*PG237] This is small solace to a member of an ethnic or racial group, which by any definition is large. One can imagine, for instance, a situation in which an Albanian is the only known Albanian present and a speaker looks at the Albanian from a few feet away and says, “All Albanians are horse thieves.” Even then, any recovery by the individual plaintiff Albanian is only for personal damage; it does nothing to protect the group reputation of all Albanians. Further, if the “all” is reduced to “some” or “most,” even this rarefied hypothetical of linkage between the group and individual plaintiff most likely fails.96 Although there may be a different legal result for an unnamed individual circumstantially harmed by the vilification of the group to which the individual belongs (who may not recover), as opposed to an unnamed but circumstantially identifiable individual who is defamed personally (who may recover), the question is ultimately one of circumstantial degree rather than bright-line rules. The problem is the same: do the circumstances reasonably identify the plaintiff as a target of the defamation?97 The repeated use of the word “reasonably” in both subsections (a) and (b) of Restatement (Second)  564 A is a verbal clue that “smallness” or “largeness” of a group is but a matter of circumstantial degree rather than the stuff from which black-letter rules are made.98

[*PG238] A minority view, called the “intensity of suspicion” test, de-emphasizes the size of the group at least marginally more than the majority view of the Restatement (Second).99 This minority view emphasizes the extent to which a group defamation focuses on each individual member of the group, whether large or small. Oklahoma pioneered the “intensity of suspicion” test in Fawcett Publications Inc. v. Morris.100 In Fawcett, a well-known plaintiff was an alternate fullback on the University of Oklahoma football team, which consisted of sixty or seventy persons. Without reference to any individual team member, the defendant published an article claiming that the entire Oklahoma football team took illegal drugs. Since the plaintiff was “well known and identified” with the group, the court found no reason why the size of the group alone should be conclusive.

The Oklahoma Supreme Court later held in McCullough v. Cities Service Co. that the “intensity of suspicion” test uses group size as only one factor to be considered along with others, such as the prominence of the group and the prominence of the individual within the [*PG239]group.101 Therefore, an alleged defamation of some 19,686 osteopaths in the United States failed the “intensity of suspicion” test as to a claim brought by one Doctor of Osteopathy among many.102 The Court explained that the action failed the “intensity of suspicion” test on the ground that impersonal reproach of an indeterminate class, such as 19,686 Doctors of Osteopathy, is not actionable because the larger the group libeled, the less likely a reader would take the libel to refer to a particular individual. Furthermore, the justices concluded that frank discussions of matters of public concern are protected by the First Amendment, and thus, incidental or occasional injury to a person resulting from defamation to a large group is offset by the public’s right to know.103 This indicates that, although size alone is not controlling under the “intensity of suspicion” test, it can be the critical factor that leads to the same non-liability result as the majority view of the Restatement (Second) of Torts. The New York judiciary adopted this Oklahoma minority test in Brady v. Ottaway Newspapers, Inc.104 While agreeing that group size is not controlling, the court added further balancing factors, including the definiteness of the group in composition and number and its degree of organization. The New York judiciary has acknowledged, however, that group variations are too great for an exclusive list of balancing factors.105

In reality, the difference between the majority Restatement (Second) test and the minority “intensity of suspicions” test is simply a matter of degree. Neither test makes size controlling. Yet neither excludes size from consideration, even though the Restatement (Second) test appears to make the difference between “small” and “large” groups more significant. A New York court of review concluded that under the Restatement (Second) test, a member of a large group can only sue if there is a “special allusion to a particular member of the group or the circumstances surrounding publication give rise to the inference that there is a particular reference to a specific individual.”106 The reference under the majority test is to the individual plaintiff under the [*PG240]guise of an attack on the group, and thus no need exists to ask whether the “intensity of suspicion” focuses on the individual plaintiff. Even though the minority view seems more favorable to plaintiffs, the difference is scant. The differences resemble mere quibbles about the relevant strength of circumstantial evidence needed to justify a reference to an individual plaintiff, as well as the importance of group size as one of those circumstantial factors.

The importance of policy in determining whether group defamation should be allowed is illustrated by Auvil v. CBS 60 Minutes, a class action for a product disparagement claim brought on behalf of 4700 Washington apple growers as the result of a 60 Minutes program that implied that red apples across the United States were tainted with a carcinogen.107 The federal court acknowledged that the group defamation doctrine, possibly applicable to the product disparagement case, was justified by two reasons: (1) dilution and (2) lack of plaintiff’s identification. If a class is sufficiently large, no one person in the group suffers personal injury because the injury is diluted.

Even though this made sense in a defamation case, the court paradoxically concluded that, where “pecuniary interests” are at stake in a product disparagement case, no dilution exists.108 Somehow the court saw intangible defamation harm as different from tangible product disparagement harm, even though a group of 4700 is large by any standard. As for the absence of a specifically identifiable plaintiff, the court theorized that when defamation of an entire large group occurs, the defamation cannot reasonably be taken to include each member of the group.109 Yet, again the Washington court suggested the lack of a specifically identifiable plaintiff was more of a problem in the defamation of a large group rather than in a trade disparagement of a product, such as apples, involving a large group, such as Washington apple growers. The moral seems to be that when courts consider group defamation based on race or ethnicity at least as harmful as the Washington court considered the trade disparagement of red apples, the law of group defamation will likely change.

Neither the so-called majority Restatement (Second) test nor the “intensity of suspicion” minority test is useful to a plaintiff of a particular racial or ethnic group who sues on the basis of group defamation. The Prosser treatise acknowledges that even though group defama[*PG241]tion has been a “fertile and dangerous weapon of attack” on racial, religious, and political minorities, so far a civil remedy for “broadside defamation” does not exist.110 A class action brought on behalf of over 600 million Muslims for defamation to recover damages for the showing of the film Death of a Princess was not actionable.111 Even with the benefit of the presumably more liberal “intensity of suspicion” test, a Nigerian was not allowed to bring a defamation action against CBS for damages on his own behalf and on behalf of more than five hundred Nigerians engaged in international business with the United States.112 Apparently only one federal case has intriguingly suggested in dictum that group defamation might exist in Illinois. This case, dealing with “Polish jokes” in the film Flashdance, stated that if the defamation could be said with certainty to include every member of the group, a cause of action would lie for group defamation because a stereotypical Polish-American who is the butt of “Polish jokes” may be said to represent every individual in the ethnic group.113

One treatise writer suggests that group defamation is disfavored because “much group abuse is meaningless invective.”114 But obviously much non-group defamation is also meaningless invective that does not meet the definition of defamation.115 Neither proposition logically excludes, however, the harmful defamation of either a group or an individual where meaningless invective is not involved. The difficulty with a too facile dismissal of racial and ethnic group defamation is more than just the opportunity for demagogues to induce a population to adopt defamatory attitudes toward a disfavored or subordinate group, as the treatise writer himself concedes. Rather, the difficulty lies with the assumption that the marketplace-of-ideas metaphor functions in the mass media in the same way that it functions in the public square, where all citizens have equal access. Accordingly, the usual reasons given for not allowing a civil action for group defamation are questionable at best.

[*PG242] One concern is that any kind of group defamation action will set loose an unacceptable flood of litigation.116 The fear that lawsuits for defamation of a racial or ethnic group will open the floodgates of litigation is pure speculation. A North Dakota statute provides that if a defamation is uttered as to “an entire group or class of agricultural producers or products,” a cause of action for damages, actual and exemplary, in addition to injunctive relief, arises in favor of each producer in the group and any association representing an agricultural producer, “regardless of the size of the group or class.”117 No floodgate of litigation appears to have opened in North Dakota or in any other state with a similar law.118 The technique of class actions removes the fear that a large number of plaintiffs will automatically create insurmountable procedural difficulties.119

[*PG243] The law already permits group defamation actions in a covert fashion. Corporations, partnerships, and even unincorporated associations, as long as they have legal capacity to sue as an entity, may sue for defamation without regard to whether they are “large” or “small” in terms of capitalization or number of shareholders.120 The reality is that the legal entity’s officers, employees, and shareholders all benefit if the legal entity prevails in the lawsuit, even though they cannot directly sue for defamation to the legal entity.121 A not-for-profit corporation of African-Americans, having thousands of members in a state, can be defamed and can sue for that defamation, but if those same African-Americans are merely a large group, they cannot sue for group defamation, either as a group or as members of the group. It is curious, to say the least, that one corporation may sue for defamation to itself, though it has a huge number of employees and shareholders, but that a group of corporations, more than twenty-five and defamed as a corporate group, is not allowed to sue. The group of corporations is too large a group under the Restatement (Second) majority test even though the individual corporations may hypothetically be sole or family corporations with only a few shareholders underneath the corporate veils.

The problem with defamation suits based on race or ethnicity is not the common view that the defamation fails to cause generalized harm to the group or specifically to all persons within the group. The Supreme Court in Beauharnais v. Illinois acknowledged that prejudice based on race could affect the social prospects of all members within the group.122 Rather, the fundamental problem with these suits, and one not commonly noted, is that the larger the group, the more at[*PG244]tenuated the chain of causation linking the defamation to specific persons within the group.123 Thus, there is an institutional inability of the law to parcel out the damages among members of the defamed group in any satisfactory manner. Even if a defamation proximately causes harm to a group, the law must still apportion the monetary damages among the plaintiffs according to some rational principle.124

This apportionment problem is compounded by the fact that, absent proof of special damages, the typical general per se damages of defamation law are intangible concepts of reputation, honor, standing in the community, humiliation, and emotional suffering that are much harder to put in terms of dollars and cents, let alone apportion among members of the defamed group.125 At least where a defendant falsely defames all apple growers in the United States by implying that they use a carcinogen on the red apples, an individual grower of red apples can show loss of profits or other monetary losses.126 But how does one calculate, for example, the real but non-economic harm of a racial or ethnic community that is unable to elect members of its group to office because of a continuous defamatory barrage directed against the group?

There is no reason, moreover, to suppose that the monetarily compensable damage to members of a defamed group will be equal. A publication that “the Italian-American members of the Democratic party in State X are Mafia fellow travelers” could affect two Italian-Americans quite differently. For example, an Italian-American of Democratic persuasion in State X, who is fired because his employer read the publication and fired the employee in order to protect the company from Mafia fellow travelers, is more harshly affected by the publication than a Democratic Italian-American from State X who has lived abroad for ten years and plans to do so indefinitely. Furthermore, monetary compensation becomes totally unrealistic when a group, like any racial or ethnic group, is somewhat porous and not rigidly defined. Members of a racial or ethnic group may not be full-blooded members of the group or may not consider themselves psychologically members of the group, even if historically murky pedigrees could be ascertained with reasonable certainty. Conversely, indi[*PG245]viduals who are not members of the racial or ethnic group by blood may consider themselves such by cultural choice. This would inject courts into the daunting task of determining whether a particular individual is properly aligned with a particular race or ethnic group for the purpose of receiving his or her apportioned damage.

Injunctive relief also does not provide a feasible alternative solution to the insoluble problem of apportioning damages among members of the defamed group. Injunctive relief cannot remedy past defamation, but only future harm. And even as to intended defamation not yet uttered, the traditional rule of equity, though questioned, has been that equity will almost uniformly reject injunctive relief against a libel that damages personal reputation.127 Additionally, the judiciary in the United States has resoundingly rejected injunctive relief in defamation cases as a prior restraint on the First Amendment guarantees of free speech and a free press.128 Although some sparse authority suggests an injunction might lie against further repetitions of a defamation once the plaintiff has secured a jury verdict,129 it ap[*PG246]pears that there has been no case in which emergency conditions were ever found sufficient to justify injunctive relief against a threatened defamation not yet published.

In the final analysis, the traditional remedies of damages or injunctive relief for group defamation are totally unworkable from theoretical and practical standpoints. It would indeed be strange for a system of monetary compensation, which has been so strongly questioned when only an individual sues for non-group defamation, to be less defective when group defamation is at issue. And injunctive relief, which is effectively barred by the combined prohibitions of equity tradition and constitutional prior restraint doctrine in cases of individual non-group defamation, becomes no more tenable if group defamation is involved. In sum, civil law group defamation has remained a harm without a workable remedy.

V.  Criminal Defamation Statutes

Criminal defamation statutes avoid the intractable problem of allocating monetary recovery according to the harm caused each member of the group in a civil defamation action. By use of the criminal law, society punishes antisocial conduct without the necessity of compensating for harm to the victim. As AIDA discovered in its lawsuit, the Individual Dignity Clause of Article I, Section 20 of the Bill of Rights in the Illinois Constitution is based on a former Illinois criminal statute that made it unlawful to manufacture, publish, exhibit, or distribute in any public place any “lithograph, moving picture, play, drama or sketch” that portrayed “depravity, criminality, unchastity or lack of virtue of a class of citizens, of any race, color, creed, or religion” and that exposed those citizens to “contempt, derision, or obloquy or which is productive of breach of the peace or riots.”130

The landmark case of Beauharnais v. Illinois upheld the constitutionality of this former Illinois statute in a 5–4 decision, when the statute was used to impose a $200 criminal fine on Beauharnais, the president of the racist White Circle League, who had passed out bundles of leaflets to League members for distribution at Chicago’s downtown street corners.131 The leaflets set forth a petition calling on city officials to halt the Negro invasion of white persons and their neighborhoods. The Supreme Court noted a key phrase in the leaflet, [*PG247]which asserted that the “rapes, robberies, knives, guns and marijuana of the negro” would surely unite the white race.132 No actual violence or bodily injury was charged or proved in relation to the distribution of the pamphlets.

In upholding the conviction, the Supreme Court rejected the argument that this criminal libel statute violated the First Amendment speech and press protections implicit in the Due Process Clause of the Fourteenth Amendment. The specific issue was whether a criminal libel statute could constitutionally be used to protect racial groups.133 In answering affirmatively, Justice Frankfurter, writing for the Court, observed that, not only was libel a common law crime and punishable in the American colonies, but that, at the time of the Beauharnais decision, every American jurisdiction had a criminal libel statute.134 His opinion also reasoned that, even though it was not completely clear to what degree these statutes extended beyond individual libel to criminal group libel, it would be “arrant dogmatism” for the Court to second-guess the Illinois legislature’s policy determination that a person’s job, educational opportunities, and other social benefits may depend as much on the reputation of the racial group to which the person accidentally belongs as on the person’s own merits. Thus, speech punishable if directed at an individual also logically could be punishable if directed at the racial group with which a person is inextricably connected. 135

Following Beauharnais, however, the Seventh Circuit Court of Appeals in Collin v. Smith upheld the First Amendment right of neo-Nazis to march in Skokie, Illinois, a village with a large Jewish population, including several thousand Holocaust survivors.136 The appellate court interpreted “the rationale” of Beauharnais to mean that the criminal libel statute in that case, which was substantially the same as the Skokie village ordinance, turned for its validity “quite plainly on the strong tendency of the prohibited utterances to cause violence and disorder.”137 Because the village did not urge the possibility of a violent reaction to the neo-Nazi march, the group libel ordinance was [*PG248]not strong enough to act as an exception to the First Amendment rights of the neo-Nazis.138

This interpretation is questionable because it ignores aspects of the Beauharnais opinion that indicate criminal libel is punishable in itself, without the necessity of a violent reaction.139 Furthermore, the Collin view runs counter to the well-researched case of State v. Browne, which established that, although early common law criminal libel cases depended on a concomitant breach of the peace, this was not true of later criminal libel law development.140 Instead, the Collin court relied on the 1925 Illinois Supreme Court opinion of People v. Spielman, cited in Beauharnais, wherein the Illinois Supreme Court had actually interpreted a different Illinois criminal libel statute from the one involved in Beauharnais. Furthermore, when the Illinois Supreme Court in Spielman noted in passing that “[c]riminal liability for libels rests upon their tendency to provoke breaches of the peace,” it cited early common law cases and not the later development.141 In any [*PG249]event, the Spielman observation was more likely intended as a truism of general public policy than as an essential statutory or constitutional requirement, which would inject an element of uncertainty into every libel case. A “tendency” to provoke a breach of the peace is not the same as an indispensable element of a crime.

To make the constitutional validity of a criminal libel statute depend on the “heckler’s veto” leads to the unacceptable result that any group of rowdies can turn an otherwise unconstitutional application of a criminal defamation statute into a constitutional application for the protection of the group reputation, provided only that the group protests loudly and violently enough.142 Recent decisions have dismissed the yardstick of the “heckler’s veto” as the measure of a law’s constitutionality.143 If the Collin view is ultimately correct, however, then the usefulness of criminal libel statutes is hobbled at the outset because of the difficulty in ascertaining how much clairvoyance of a violent reaction the First Amendment requires.

Criminal defamation statutes are faced with a dilemma. If they are not designed to protect against a violent reaction to the defamation uttered, they may be struck down as a violation of the First Amendment by those courts that follow the Collin approach of limiting the defamation exception to the First Amendment, with the overlay of a historically separate “fighting words” exception. On the other hand, if a criminal defamation statute explicitly incorporates protection against public disorder or breaches of the peace, it runs the high risk of violating the First Amendment by an unconstitutionally vague standard as to what constitutes public disorder, breach of the peace, or similar generic crime. In Ashton v. Kentucky, the Supreme Court struck down a Kentucky criminal libel statute that prohibited “any writing calculated to create disturbances of the peace” because the [*PG250]statute vaguely required a defendant to calculate the emotional reactions of an audience to which the libel was addressed.144 To follow the Collin approach is likely to place criminal defamation statute in a no-win position where it will either be struck down because it was not designed to protect public tranquility or because it was so designed but is inherently vague in its design.

Aside from the cloud cast by the view that a criminal defamation exception to the First Amendment can only be justified if combined with another historically separate “fighting words” exception, traditional criminal defamation statutes must also meet the constitutional requirement of “actual malice” established in New York Times Co. v. Sullivan.145 “Actual malice” denotes knowledge of the defamatory falsity or reckless disregard for whether the statement was true or false.146 In such cases, the truth of the defamatory words is absolutely protected under the First Amendment without any qualifications, such as those requiring the uttering of truth for good motives and justifiable ends. 147 Thus, even a criminal libel statute that simply refers to a defendant’s “malicious intent” is both overbroad because it permits the prosecution of speech protected by New York Times actual malice and inherently vague because it creates a potential confusion between common law “malice” and New York Times “actual malice” definition.148

[*PG251] Several cases have gone beyond the New York Times “actual malice” limitation, however, to find group defamation of public officials absolutely protected by the First Amendment.149 Because impersonal criticism of government in general is often intermeshed with group defamation of public officials, some group defamation of public officials is absolutely protected by the First Amendment. To allow the group defamation action under such circumstances would open “a back door to official censorship.”150 Even if a group defamation of public officials can be disentangled from a protected criticism of government in general, such public officials, as well as all public figures who are the victims of a defamatory attack must at least still establish “actual malice” for liability.

Some authority stops here and refuses to hold that a criminal defamation statute invoked to punish the defamation of private persons, who are neither public officials nor public figures, must also require proof of New York Times actual malice.151 Under this view, a truthful statement, if uttered without good motives or justifiable ends, can still amount to criminal defamation as long as it involves the defamation of a private person who is neither a public official nor a public figure.152 Other authority has taken a bolder path, however, beyond the clear holdings of Supreme Court precedent, by deciding that the First Amendment prohibits a conviction of criminal libel for defamation uttered in public without New York Times actual malice on a matter of public concern, even if the victim is a private person.153 This more expansive view is based on the premise that, because Gertz v. Robert Welch, Inc. precludes private plaintiffs who are involved in a matter of public concern from recovering punitive damages without [*PG252]proof of New York Times actual malice, analogous reasoning should apply to private-person victims of a criminal defamation, because between punitive damages and criminal fines, both chill First Amendment rights.154 Since Garrison, the Supreme Court has declined to resolve this split.155

Constitutionally under attack at the fringes, criminal libel statutes are also under attack as broadly unconstitutional due to the void-for-vagueness doctrine. Application of the doctrine, especially potent in matters involving criminal statutes and the First Amendment, strongly suggests that the common law and statutory definitions of defamation are incapable of reasonably informing citizens of what is prohibited and encourage arbitrary enforcement of the law. In Tollett v. United States, a federal appellate court struck down as unconstitutional a federal statute that punished the mailing of any “libelous, scurrilous, defamatory, and threatening” matter on the outside of envelopes or on postcards.156 Aside from a barrage of criticisms directed to a lack of clarity in the statute concerning its application to private libel, the truth defense, the role of “malice,” the role of fault, and whether and to what extent a “breach of the peace” was required, the appellate court observed that the “Act [did] not in any way attempt an objective definition of ‘libelous’ and ‘defamatory.’”157 The appellate court in Tollett cited approvingly Ashton for Justice Douglas’ broad dictum that the English common law of criminal libel was inconsistent with constitutional principles and too indefinite and uncertain for enforcement as a criminal offense.158 In addition, the court in Tollett found the governmental interests supporting the statute insufficient, including the argument that criminal libel laws usefully supplement civil libel laws [*PG253]by protecting the dignity of the individual.159 Another court, which reached the same result, found that, although this federal criminal statute might rationally deter potential defamers who would not be frightened of a civil law judgment, this reasoning still did not satisfy the compelling governmental interest required by the First Amendment.160

The Alaska Supreme Court has reached much the same conclusion. Alaska had a misdemeanor criminal defamation statute that punished the willful publication of “defamatory or scandalous matter” concerning another with “intent to defame.” In Gottschalk v. State, the statute was applied against a citizen who had accused a state trooper of having taken money from the citizen’s vehicle.161 The Supreme Court in Gottschalk, besides reversing the prosecution on narrower grounds, took the broader position found in Ashton and Tollett that the concept of defamation was inherently vague. After noting that the statute did not define what was “defamatory” or “scandalous,” the Supreme Court turned to the common law definition, which it also found lacking in sufficient precision.162 The Supreme Court was influenced by Dean Leflar’s study, in which Leflar found that nearly half of all criminal defamation cases brought between 1920 and 1955 were basically political in that they were filed against unsuccessful political candidates, the candidate’s supporters, or against private citizens who had offended those who were politically powerful.163

Even though the Supreme Court has never overruled Beauharnais, the continued validity of that case remains in considerable doubt because of basic changes in the law of defamation relating to freedom of expression.164 The Court of Appeals for the Seventh Circuit has [*PG254]concluded that Beauharnais is no longer good law.165 A number of other cases have also questioned the current validity of Beauharnais.166 Yet the United States Supreme Court has in at least two cases assumed the continued vitality of Beauharnais.167

Whatever the remaining constitutional validity of Beauharnais, a more fundamental reason remains for the inefficacy of criminal defamation law as a remedy for group defamation based on race or ethnicity. Since Beauharnais, the trend of legislation and public policy has moved decisively against the continuation of criminal defamation statutes. The Beauharnais opinion noted that, at the time of that decision, every one of the then forty-eight states, the District of Columbia, Alaska, Hawaii, and Puerto Rico punished criminal libels of individuals.168 Furthermore, some of these statutes were even used to punish group libel.169 To the extent Beauharnais relied on this unbroken pattern of support for criminal libel laws, the reliance as constitutional authority has been gravely undermined by subsequent events. At the time of this Article, the author could only find nineteen states that still had some form of criminal libel or criminal defamation, either by statute or common law.170 Nevada was not included because, even [*PG255]though it has a criminal libel statute, no one has ever been prosecuted under the statute, and in an unpublished order, the United States District Court approved an agreement by the parties that the Nevada statute was unconstitutional.171 Of those nineteen states, Kentucky’s statute is limited to defamation actions brought by judges against those who defame the judiciary in the course of its duties.172 Moreover, several of those nineteen states have statutes or common law that have been invoked minimally or sometimes not at all since the nineteenth or early twentieth centuries.173 Others have only limited criminal defamation statutes targeted to specialized problems without general application.174 The irony is that Illinois has repealed not only the group criminal libel statute upheld by the Supreme Court in Beauharnais but also a general criminal defamation statute.175

[*PG256] In addition, what the majority in Beauharnais failed to note was the infrequency with which these laws were invoked, even around the time of the Beauharnais decision. Professor Robert A. Leflar conducted a study of 110 reported criminal defamation cases between years 1920 and 1955 in which he found a declining number of cases in each ten-year period. Leflar found fifty-eight cases reported in the ten-year period of 1920–1929, thirty-four in the twelve-year period of 1930–1941, and only eighteen in the fourteen years from 1942 through 1955. Nearly half of all cases were political in the sense that they involved public officials or candidates for public office. Only 10 of the 110 involved group libel, typically involving attacks on religious or racial groups, such as Jews, African-Americans, or Catholics.176

In updating Leflar’s study from 1956 through 2001, the author of this Article found the declining trajectory of prosecutions for criminal defamation even more remarkable. The author found sixteen reported cases of criminal defamation from 1956 through 1966, fourteen cases from 1966 through 1976, a sharp fall-off to five cases from 1976 through 1986, just one case from 1986 through 1996, and then only two cases from 1996 through 2001. Of the total number of thirty-eight cases reported in the Decennial Digests during this period, only one involved racial group libel and twenty--almost two-thirds--were political in the sense of involving alleged defamatory attacks on political candidates or public officials, such as judges, district attorneys, an attorney general, a police chief, a sheriff, a presidential candidate, and both a senator and a town.177 A hypothesis for this decline since Leflar’s study is that prosecutors have heeded the cumulative impact of Garrison in 1964, Ashton in 1966, and Gertz in 1974 by not bringing defamation actions. It is unlikely that public discourse has become more courteous and less defamatory in this period.

[*PG257] The Supreme Court has probably doomed criminal defamation law, not by a sudden-death thrust of inherent unconstitutionality, but rather by the ultimately mortal wounds of New York Times actual malice and the void-for-vagueness doctrine. At some point, the Supreme Court may constitutionally snuff out criminal defamation altogether by invoking the coup-de-grace of reverse-Beauharnais reasoning--namely that, because so few states have criminal defamation laws and because few are effective in those states that do have them, no compelling state interest justifies the consequent prohibition on freedom of expression. This is particularly true inasmuch as approximately two-thirds of the cases decided between 1956 and the present involve political officials or political candidates who tried to invoke criminal libel law against their opponents. This borders on the criminalization of criticism directed toward government. Ever since Sullivan denounced the Alien and Sedition Acts of 1798, which had punished defamation against the federal government and federal officials, this confusion between government and individual officeholders has been considered an unconstitutional abridgement of the First Amendment.178

Criminal libel law, therefore, is a useless and increasingly unconstitutional remedy for the redress of racial or ethnic group defamation. The author has found only one case since 1956 that applied a criminal libel statute to protect racial and ethnic groups against scurrilous defamation.179 Criminal defamation is not recognized in the Model Penal Code or by a leading criminal law treatise.180 Even though racial and ethnic defamation affect the public weal and not [*PG258]merely individual interests, the criminal law of libel is no longer effective to redress that group wrong.

VI.  Declaratory Relief: A Solution

There is substantial support for declaratory relief as a general solution to the haphazard First Amendment dangers of a traditional defamation action for monetary relief. Generally, a declaratory judgment is a traditional remedy that provides an authoritative declaration of rights disputed by the parties in cases of actual controversy.181 Any such declaration has the full force of law and the effect of a final judgment by itself, whether or not a further remedy is sought. The Restatement (Second) of Torts discusses a number of advantages that a declaratory judgment action has over a traditional damages action for defamation.182 Former Supreme Court Justice White expressed the view that declaratory relief, with damages banned or curtailed, might better serve both First Amendment interests and a plaintiff’s interest in reputation than an action for damages as limited by the Supreme Court in Gertz v. Robert Welch, Inc.183 In Gertz, the Supreme Court held that the First Amendment precluded the imposition of defamation liability without fault where the defamation defendant is a private individual.184 Then U.S. Representative Charles Schumer proposed to the 99th Congress a bill that would have protected “the constitutional right to freedom of speech by establishing a new cause of action for defamation,” in which a public official or public figure who was the subject of a publication or broadcast by print or electronic media may sue for a declaratory judgment that such publication was false and defamatory. Proof of defendant’s state of mind was not required, but, [*PG259]on the other hand, no damages were awardable under this action.185 The Libel Reform Project of the Annenberg Washington Program also recommended a declaratory judgment action for any defamation lawsuit as an alternative option to a lawsuit for damages. Under this declaratory approach the defendant’s state of mind was also not an element of proof.186

Furthermore, the constitutional concern of the Supreme Court regarding civil defamation involves the chilling effect of monetary damages on the First Amendment rights of freedom of speech and press.187 The holdings of New York Times and Gertz, which used First Amendment concerns to delimit the traditional law of defamation, were related to a traditional action for damages. Declaratory relief, however, does not require an ancillary request for damages or injunctive relief, even though oftentimes one of these two alternative remedies is also requested.188 Unlike other judgments, a judgment of declaratory relief is not coercive and does not compel the parties against whom it is entered to take or refrain from taking any action. Except for this difference, no other exists between a declaratory judgment and any other kind of judgment.189 Yet, a declaratory judgment differs from an advisory opinion in that it is a binding determination on the merits and, by reason of res judicata, may preclude re-litigation of the same issue.190

[*PG260] It is probable that the quagmire of New York Times actual malice would not be a constitutional requirement of a declaratory action brought to determine whether a communication was defamatory at law. An action for declaratory judgment is also better than an alternative variation that would unconstitutionally force a media defendant to publish a correction or retraction in its own medium of communication.191 Because of First Amendment concerns, the FCC and the judiciary have changed course and no longer force an electronic media defendant to open up a station to outsiders under the fairness doctrine, the political attack rule, or the political editorial rules.192 A declaratory action, on the contrary, does not hypothetically trench on the First Amendment by forcing a media defendant to publish state-dictated content in its media communications or to spend its own finances to publish a state-dictated retraction.

A declaratory remedy for racial and ethnic group defamation is also attractive because it circumvents the First Amendment objection that criminal libel statutes are unconstitutional because they are facially vague and overbroad.193 The juxtaposition of the First Amendment and the criminal law raises vagueness and overbreadth challenges to their maximum effectiveness.194 Because a declaratory [*PG261]judgment action is not a criminal action, however, the vagueness objection is less stringent.195 It would be startling for the Supreme Court to now declare over two hundred years of civil defamation law, which has permitted damages, to be unconstitutionally vague, particularly when only a declaratory remedy is sought without damages or injunctive relief.

A declaratory remedy for racial and ethnic group libel may be more seriously attacked as improperly chilling freedom of speech and the press, such as when government uses a declaratory judgment to brand a communication defamatory. The paradox of such a position, however, is that it would ban a declaratory judgment without damages under the First Amendment, even though the Supreme Court has generally refused to invoke the First Amendment to limit civil defamation lawsuits for damages, aside from the Sullivan and Gertz doctrines. The Supreme Court has instead indicated that a governmental right to speak does not necessarily violate the First Amendment rights of those affected by government speech.

In Meese v. Keene, the Supreme Court upheld the statutory authority of the federal government to label three Canadian films “political propaganda” without violating the First Amendment rights of a California senator who wanted to show the films.196 The Court noted that Congress did not by means of the statute prohibit, edit, or restrain the distribution or exhibition of the films and left the senator free to critically comment on the federal government’s action. Conversely, the district court’s injunction against the government’s speech narrowed the marketplace of ideas by eliminating the government’s views.197 In Pestrak v. Ohio Elections Commission, a federal appellate [*PG262]court upheld an Ohio statute insofar as it allowed a state commission to declare the truth or falsity of statements made by candidates during an election.198 The Sixth Circuit Court of Appeals observed that the “truth-declaring” function of the commission was comparable to other activities carried on by government, such as federal officials declaring the truth or falsity of inflation statistics and the unemployment rate or U.S. Representatives declaring the truth or falsity of information in the course of discussing public policy alternatives.199

Ever since Milkovich v. Lorain Journal Company, the Supreme Court has clearly expressed that opinions, as well as factual assertions, can be grounds for defamatory harm without any violation of the First Amendment.200 The only opinions that are protected are those that constitute “rhetorical hyperbole” or “imaginative expression” or that are based on a complete set of disclosed and true facts so that a reader or listener has sufficient information to independently evaluate the credibility of the defendant’s opinion inferred from the facts.201 Opinions that imply false statements of fact without stating them or that are based on incompletely disclosed facts, however, may still be actionable without violating the First Amendment.202 Aside from the fact that they involved claims for damages and not declaratory relief, earlier defamation cases, which suggest that a civil action for group libel might automatically violate the First Amendment, are even more broadly undercut by the Milkovich decision, so as to permit some actions for defamatory opinions.203

[*PG263] A declaratory action for defamation is squarely within a traditional exception to the First Amendment. Such a declaratory action would not affect lawful speech but only defamation—a historically recognized exception to the First Amendment. More importantly, the action would not prohibit a defendant’s speech, regardless of whether the speech is considered protected under the Constitution.204 Finally, a declaratory judgment action could be drafted to avoid the viewpoint discrimination found in the Indianapolis ordinance.205 A declaratory approach also effectively circumvents the problematic premises of critical race theory that either prohibits racist and bigoted insults as a new exception to the First Amendment or provides monetary damages for a new tort of racial insult.206

In the author’s role as AIDA co-counsel, one tactical advantage of a declaratory judgment action became apparent. By not requesting monetary or injunctive relief, a plaintiff assumes the high ground of principle over suspected mercenary or censorious motives. With a pure declaratory judgment action, the plaintiff is simply trying to correct the defamatory stereotyping of the racial or ethnic group in the public mind. The judiciary has shown some recognition of the fact that words and images, unless rebutted, can condition a society to accept falsity as truth.207 Thus far, the most comprehensive study done on the subject of defamation law has found that some plaintiffs see themselves as “winners” by the very act of suing for defamation, even though they have little chance of obtaining damages in a traditional defamation suit.208 Since groups like AIDA are often more concerned about public vindication, they are most likely to use a declaratory [*PG264]remedy, particularly since alternative methods of relief are basically illusory.

Beyond vindication, a declaratory judgment of defamation could be used by the racial or ethnic group to counter the social forces that feed the defamation. Such declaratory judgments, for example, could be used at shareholders’ meetings to prevent corporate assets from being wasted on defamatory activity. Or they could conceivably be used as evidence that a broadcaster has not served the public interest when that broadcaster seeks a license renewal. There is even some dicta for the view that once a jury has found defamation after a full trial, the doctrine of prior restraint does not prevent a court of equity from enjoining repetitions of the same or similar defamation.209 In sum, the declaratory judgment could have practical consequences beyond the moral implications of community judgment.

Furthermore, a declaratory action could still significantly deter racial or group defamation, even though it lacks the teeth of money damages, injunctive relief, or criminal penalties. Deterrence has never been the sole justification of criminal law. In fact, it has always been highly questionable as to what extent the death penalty deters murder or to what extent the criminal law itself deters crimes of passion, economic necessity, or crimes resulting from sociopathic behavior. The determination of how any legal norm prevents antisocial conduct from occurring eludes scientific certainty. But the utilitarian reality is that a declaratory judgment mechanism, like the criminal law, would publicly affirm a minimal standard of communal civility -- a civic ritual of cohesion indispensable to any society, no matter how great or little the deterrent effect of the standard.

Conclusion

In summary, the major nations of the world have recognized that racial and ethnic defamation is a harm that requires some form of remedy, just as individual defamation is remedied. Unlike these nations, however, the United States has historically accorded freedom of speech and press greater weight in balancing the harm to be remedied against the infringement on free expression caused by the legal remedy. Aside from any constitutional issues, the current civil damage lawsuit for defamation is inapplicable because courts have consistently denied damages for group defamation by simply refusing to recognize [*PG265]the individual harm caused by group defamation. Even if courts did recognize the harm and award damages, the perplexing problems of apportioning class damages among a racial or ethnic group would lead to arbitrariness and unworkable complexity. Likewise, criminal defamation statutes, whatever constitutional validity Beauharnais may still have, are now found in fewer than half of the states in the United States. Even in states that have criminal defamation statutes, prosecutors have rarely brought actions within the last thirty years. When actions have been brought, the alleged victims are usually public officials or public figures, rather than powerless private citizens who most need the protection of such statutes.

The solution is to enact a declaratory judgment statute at the state level to remedy the specific problem of group defamation based on race or ethnicity. The declaratory theory would provide some remedy where at present none realistically exists because of constitutional and policy concerns. Such a statute should be carefully crafted to avoid any possible collision with the First Amendment and to remedy the most serious wrongs perpetrated by the mass media. The floodgate must not be opened so that every trivial charge of backyard group defamation streams into the courts. Rather, the statute should focus on the most harmful kind of group defamation. Further, the action should be controlled by a state official in such a way as to avoid any clouded issues of standing in order to bring the declaratory lawsuit.

The proposal and commentary found in the Appendix are intended to show how a draft of a model statute incorporating these principles might look. The proposed statute is a composite of various earlier suggestions combined with the thoughts of the author, whose major goal was to provide a durable statute that would focus on the most serious kind of defamation and that would not be open to frivolous misuse. Of course, the statute could be otherwise expanded or modified in the light of experience. If the declaratory action works well in the limited area of group defamation based on race and ethnicity, it could then be expanded to cover other classes, such as gender or even individual defamation cases, as respected authorities have already suggested. Declaratory relief provides a way for the United States to join the major nations of the world in asserting communitarian values of minimal decency without abridging its robust heritage of free expression and thought.

[*PG266]APPENDIX

“RACIAL AND ETHNIC GROUP DEFAMATION ACT”

PREAMBLE

The purpose of this Act is to provide a remedy for a certain kind of defamation of unincorporated racial or ethnic groups and the derivative defamation of natural persons within such defamed groups. The Act is not intended to replace or modify the civil or criminal law relating to the direct defamation of specific and identifiable persons, whether natural or artificial, who claim to have been defamed in their individual capacity rather than by membership in a racial or ethnic group. The Act is to be construed in such a way as to avoid wherever possible any conflict with the freedom of speech and press guaranteed by either the First Amendment of the United States Constitution or the constitution of this state.

SECTION 1:  SCOPE OF COVERAGE

This Act provides an action and remedy for group defamation only insofar as an identifiable racial or ethnic group is the subject of the defamation and for no other groups.

Comment:Because the Act is novel, the goal is to concentrate on race and ethnicity, which have a special importance because of social tensions created by an increasingly multicultural society. Once the Act takes hold it could be extended to other groups in need of protection from other forms of defamation, such as defamation based on gender.

SECTION 2:  ACTIONABLE DEFAMATION

(A) Only defamation, as defined under the law of this jurisdiction, which attributes or imputes criminality to any race or ethnic group by virtue of or by reason of the race or ethnicity of the group is actionable under this Act.

Comment:False attribution of criminal conduct is such a serious form of defamation under traditional law that it has been considered defamation in itself without the need to allege or prove special damages. In addition, this subclass of defamation has a precise meaning because criminal conduct is defined by the criminal laws of the juris[*PG267]diction in which this Act takes effect and by centuries-old precedent refining the meaning of this subclass. It is arguably undesirable, both for possible constitutional and practical reasons, to extend a cause of action to language substantially more vague in content, such as “depravity” or “lack of virtue,” as set out, for example, in Art. I 20 of the Illinois Constitution (Individual Dignity Clause). Given that the void-for-vagueness doctrine generally has been used only in criminal cases or in First Amendment cases involving prohibition or limitation of speech, however, a jurisdiction might plausibly extend coverage to other defamatory statements besides criminal conduct.

(B) Statements of fact that constitute defamation under Section 2 (A) of this Act are automatically actionable.

(C ) Statements of opinion, as defined by the law of this jurisdiction or federal constitutional law, may only constitute defamation under Section 2 (A) if they are based either expressly or implicitly on false facts. If they are so based on false facts, defamation may exist under this Act even though consideration of the opinion in conjunction with such facts is necessary to construe a defamatory meaning. If they are expressly or implicitly based on true facts, defamation does not exist under the Act, whether or not the facts are reasonably sufficient to support the opinion.

(D) Rhetorical hyperbole or pure invective, whether classified as fact or opinion, is not actionable.

(E) Defamation of an individual based on race or ethnicity shall not be considered group defamation unless the number of individuals defamed is reasonably sufficient to infer an express or implied defamation of the entire race or ethnic group or unless the individual defamation, whether based on a real or fictionalized individual, is reasonably construed as a symbolic defamation of the entire race or ethnic group.

Comments:Subsections 2(B), (C), and (D) are based on the constitutional demarcation between actionable defamatory opinions and non-actionable defamatory opinions set out by the Supreme Court in Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990). The distinction should remain because it existed at common law even apart from later First Amendment doctrine. See also Hustler Magazine v. Falwell, 485 U.S. 46 (1988). Subsection 2(C) would protect researchers, such as Dr. William Shockley, if their controversial or even loathsome conclusions or opinions are based on true facts. As long as a third-party reader or listener can evaluate the reasonableness of the [*PG268]conclusion or opinion based on the disclosed true facts, the marketplace of ideas needs no state intervention. Subsection (E) is designed to protect against disingenuous attempts to disguise group defamation as individual defamation, such as the symbolic use of “The Wandering Jew” to represent all Jews. Yet, most individual defamation will not amount to group defamation, such as the accusation that a particular Italian-American is a “Mafia hitman.”

SECTION 3:  PROPER PLAINTIFFS

(A) The Attorney General of this State is authorized to bring an action under this Act.

(B) The only other party, or parties, authorized to bring an action under this Act is a proper representative, or representatives, expressly selected from the aggrieved racial or ethnic group by the Attorney General in his or her sole discretion and only if the Attorney General expressly relinquishes his or her primary authority to bring an action.

(C) Any representative or representatives selected by the Attorney General pursuant to Section 3 (B) shall have the same standing to bring an action under this Act as would the Attorney General.

Comment:This is based in part on a Massachusetts criminal libel statute, which provides that statutory actions for libel based on “race, color or religion” are instituted “only by the attorney general or by the district attorney for the district in which the alleged libel was published.” M.G.L.A. 272  98 C. Since the reforms of 1990, French law permits certain associations in existence for five years and organized to defend the Resistance and concentration camp inmates to initiate criminal proceedings involving war crimes, crimes against humanity, criminal collaboration, and legal proceedings brought against those who deny the Nazi Holocaust against Jews. UNDER THE SHADOW OF WEIMAR 47 (Louis Greenspan & Cyril Levitt eds., 1993). This Act attempts to combine both approaches by allowing the Attorney General to control the action so as to prevent frivolous or borderline claims but also to allow representatives of the affected racial or ethnic group, who would be the most motivated, to bring the action. Political realities might also lead an Attorney General to turn the action over to designated racial or ethnic representatives.

[*PG269]SECTION 4:  SOLE REMEDY

(A) The sole and appropriate remedy under this Act shall be an action for declaratory judgment, whether or not such a remedy would be appropriate under any other law of this state, and no other relief, including monetary damages, temporary restraining orders, or injunctions either permanent or temporary, shall be awarded.

(B) Either party shall have the right to a jury, and if such right is invoked, the judge shall enter a declaratory judgment in accordance with the jury verdict.

(C) This Act does not abolish or restrict any remedies that might otherwise exist under the common law or statutory law of this state.

Comment:The Restatement (Second) of Torts 623, the Libel Reform Project of the Annenberg Washington Program, H.R. 2846, 99th Congress (1985), and other reforms in the 1980s offered a declaratory approach as an alternative to money damages in a civil defamation action, even though they were not concerned with group defamation. As for Subsection 4 (B), the predominant view is that declaratory actions historically preceded equitable actions and are largely governed by statutes in modern times. 1 Walter H. Anderson, Actions for Declaratory Judgments, 1, at 1 (“older than the equitable system of jurisprudence”). Thus, no tradition would suggest that a jury not be available. Indeed, the community sense of what constitutes a discrediting statement to reputation, whether individual or group, is particularly suitable for jury resolution. Defamation is one of a few tort actions where England still normally permits juries. 37 Halsbury’s Laws of England para. 1075 (4th ed. Reissue, Butterworth Lexis Nexis 2001)(juries permitted to hear claims of fraud, defamation, malicious prosecution, and false imprisonment). In case of a bench trial, the judge would, of course, need to find defamation before issuing a declaratory judgment.

SECTION 5:  TRUTH

Substantial truth shall constitute a complete defense to any alleged defamation under this Act, but the burden of proving the truth of the alleged defamation shall be borne by the defendant.

Comment:Public officials and public figures who sue for defamation must allege and prove the falsity of the statement. Even private plaintiffs who are a subject of public concern must prove falsity. Philadephia Newspapers v. Hepps, 476 U.S. 767 (1986). Whether [*PG270]or how the Supreme Court would classify a racial or ethnic group within these categories of plaintiffs is not completely clear. But this constitutional mandate requiring such plaintiffs to prove falsity rather than a defendant to prove truth as an affirmative defense arose only in the context of a defamation action for money damages with a potential chilling of First Amendment rights. Section 5 represents the traditional common law unaffected by First Amendment considerations.

SECTION 6:  STATE OF MIND

The defendant’s state of mind at the time of uttering any defamation under this Act, whether it be with knowledge or reckless disregard of a defamatory statement’s falsity or negligence in failing to use reasonable care before uttering any defamation or any other state of mind, is irrelevant under this Act and shall constitute neither an element of a claim nor of a defense.

Comment:New York Times “actual malice” has spawned extensive litigation. Since this constitutional rule has only been applied to defamation lawsuits seeking damages, the disadvantages of the rule can be avoided. For example, editors will no longer be forced to reveal their internal thought process in depositions seeking to establish “actual malice” and to that extent will enjoy greater freedom of thought and expression. Herbert v. Lando, 441 U.S. 153 (1979) (money damages).

SECTION 7:  CLASSIFICATION OF DEFAMATION

The common law categories of defamation per se or defamation per quod are abolished insofar as this Act is concerned, and only the general meaning of defamation under the common law is to be used.

Comment:The sometimes bizarre and historically hoary distinctions between defamation per se and defamation per quod, which have generated much criticism, would be bypassed. Like the bypassing of New York Times “actual malice,” this will expedite the trial of a defamation action under this model statute. The distinctions should still be kept in the typical defamation action involving individuals.

[*PG271]SECTION 8:  PRIVILEGES

Any privileges, be they absolute or conditional, that exist under the common or statutory law of this state remain as defenses under this Act, except that any defense based on the common law of fair comment is subject to Section 2 (C) of this Act.

Comment:Because money damages are not involved under this Act, it might be argued that the privileges should not apply. However, the privileges typically represent social interests that are considered to offset what otherwise would be a defamatory statement. It would seem that these social interests should still be paramount, even where only a declaratory judgment is requested. The privilege of fair comment has been virtually swallowed up by New York Times v. Sullivan, 376 U.S. 254 (1964), Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), and their numerous offspring. But given that New York Times and Gertz do not apply under this Act, the qualified privilege of fair comment may spring back into use. Its use, however, is modified in Section 2 (C) as required by Lorain Journal Co. v. Milkovich, 497 U.S. 1 (1990) in its constitutional parsing of actionable and non-actionable opinions.

SECTION 9:  DEMAND FOR RETRACTION, CORRECTION, OR RIGHT OF REPLY

(A) No action for defamation shall be commenced against any defendant unless the complaint alleges that a timely demand for a full and fair retraction or a timely demand for a correction or a timely demand for a full and fair opportunity to reply on behalf of the affected racial or ethnic group was reasonably made and either refused or ignored.

(B) If a defendant agrees to provide an opportunity to reply to the alleged defamation, as provided in Section 9 (A), this agreement shall include the right of access to and use of the defendant’s facilities that were originally used to communicate the alleged defamation to the end that the reply may as far as possible reach the same audience that heard the alleged defamation, unless the Attorney General or the representatives designated by the Attorney General waive this right of access and use.

(C) It is an absolute defense that a defendant has reasonably offered a full and fair opportunity to reply under Section 9(A) when an opportunity to reply has been demanded or has reasonably offered or [*PG272]made the demanded correction or a mutually agreed correction when a correction has been demanded.

(D) It is an absolute defense that a defendant has offered or made a full and fair retraction, whether the Plaintiff has demanded either a retraction, a correction, or an opportunity to reply.

Comment:This section is based on the Uniform Correction Or Clarification Of Defamation Act and the North Dakota version of that Act. N.D. Cent.Code 32–43–05 (1995). By counteracting any harm by the devices of retraction or correction, litigation can be reduced. The right of reply and use of a media defendant’s facilities avoids the constitutional limitations of Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241 (1974) because the right to reply would remain the choice of the media defendant. This avoids the prohibited forced intrusion into editorial judgment and editorial control over media publications. See Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241 (1974).

SECTION 10:  LEGAL ENTITIES

(1) Corporations, partnerships, and all legal entities other than natural persons, whether for profit or not-for-profit, shall not be deemed a racial or ethnic group, even though the protection of such groups may be within their corporate purpose

(2) Such corporations, partnerships, and all other artificial persons at law retain whatever rights they have under the common or statutory law of this state to sue for defamation of the corporate person, and they may be designated as a representative of an affected racial or ethnic group at the sole discretion of the Attorney General.

Comment:This avoids the claim that the Act will protect a single legal entity organized for racial or ethnic purposes on the ground that, though legally it is one artificial person, it actually represents a racial or ethnic group, such as Operation Push or the Polish National Alliance. The Act should protect living individuals from the indignity and insult of racial or ethnic defamation, whether or not they are organized into a legal entity.

SECTION 11:  STATUTE OF LIMITATIONS

Any cause of action brought under this Act shall be brought within one year after the cause of action accrues.

[*PG273]Comment:A one-year limitation is common for defamation actions. The short period is further protection against less meritorious claims or evidence impaired by the passage of time. A “discovery rule,” which would extend the time for filing to a period within one year after knowledge of the defamation or after knowledge should reasonably have been acquired, has been omitted. It is most unlikely that a racial or ethnic defamation of any significance would escape the attention of the Attorney General, given the numerous interested members of a racial or ethnic group who would immediately report the defamation to the Attorney General. In any case, the discovery rule generally has been confined to medical malpractice cases.

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