Just published as the first article in volume 2, issue 2 of the Journal of Free Speech Law, and available here; here's the Introduction:
What harms are caused by hate speech? How can we assess those harms? Does hate speech lead to violence? Do racial, ethnic, and religious groups have reputations that can be injured? Do the benefits of hate speech laws outweigh the harms that might be caused by restricting speech?
Americans grappled with these questions since the early twentieth century, which saw the first calls for "hate speech" laws. Advocates of those laws championed them as essential to promoting social order, civility, and civil rights, while critics denounced them as vague, ineffective, and possibly unconstitutional. The passage of hate speech laws in states and municipalities during the World War II era did little to resolve the debate.
The uncertain First Amendment status of hate speech laws loomed large in the late 1940s as the Supreme Court expanded protections for offensive speech in a series of landmark cases. The question of the constitutionality of hate speech laws finally came before the Court in 1952, in Beauharnais v. Illinois, involving the conviction of a white supremacist leader under an Illinois group defamation law. Beauharnais highlighted questions central to the hate speech law debate: Are hate speech laws valid prohibitions of insult and defamation, or are they unconstitutional restrictions on political speech? When can freedom of speech be limited in the interest of equality, civility, and dignity? The Supreme Court considered these issues against a contentious backdrop—the onset of the Cold War, the shadow of Nazi Germany, and violent race riots in the Midwest. In an opinion by Felix Frankfurter, a five-Justice majority upheld the Illinois statute, marking the first and only time that the Supreme Court validated a hate speech law.
Observers expected that Beauharnais would lead to the passage of hate speech or group libel laws nationwide, but that did not happen.
