Beauharnais upheld an Illinois statute making it a crime to publish libelous statements directed at any race, color, creed, or religion.
The decision was based upon the idea that "Libelous utterances [are not] within the area of constitutionally protected speech." (p. 1315)
Does Beauharnais survive Sullivan? Is it consistent with Phelps?
Most constitutional lawyers believe that Beauharnais is not good law. As one commentator puts it: "While Beauharnais has never been expressly over-ruled, a number of cases have so weakened its rationale that its holding would not likely survive if tested."
But now consider this hypo. Suppose a long time ago in a galaxy far, far away, there was an election for President. And suppose (bear with me, I know this would never happen) that prominent members of the media often characterized the supporters of one candidate as "fascists and Nazis." Actionable as a group libel? Should it be?
Now this zinger from Prof. Adrian Vermeule of Harvard Law: "One feels the day is soon coming when people will no longer even bother to mock the intellectuals shrieking about “fascism,” any more than one would mock the ravings of addicts and madmen on the streets."
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