During the Second World War, the United States confronted a surge of hate literature. A “systematic avalanche of falsehoods,” as one commentator put it, swept the nation. Homegrown fascist organizations and Nazi agents circulated pamphlets and magazines bearing titles such as America Preferred, The Cross and the Flag, The Defender, Patriotic Research Bulletin, and X-Ray. Literature that was vicious in nature, attacking minority groups on racial and religious grounds, circulated extensively in major cities. Crude leaflets filled with racist, antisemitic, and anti-Catholic invective were handed out in war factories and at Army and Navy installations. The aim of this “hate literature” was to erode the morale and unity needed for the war effort by stoking violence between races and faiths.
This “hate propaganda” appeared to achieve its intended effects. It was blamed for significant riots in munitions plants in Boston, Los Angeles, and Harlem, with deaths and property damage running into the millions. A June 1943 race riot in Detroit, which killed thirty-four people in the war-production hub, was linked to material distributed by Nazi sympathizers. In New York, attacks on Jews had been incited by Father Coughlin’s Social Justice magazine. Antisemitic gangs roamed the streets, demanding to know whether passersby were Jewish and beating those who admitted it. Gangs desecrated nearly every synagogue in Washington Heights.
In Boston, bands of Irish Catholic youths, aligned with Coughlin’s Christian Front, assaulted Jews in the streets with blackjacks and vandalized stores and homes. Youths deliberately ventured into neighborhoods to carry out “Jew hunts.” The New York newspaper PM described the situation as a “reign of terror.”
Faced with these conditions, many argued that drastic measures were needed to curb “hate propaganda.” The defamation of racial and religious groups was said to pose “clear and immediate dangers” to the production of munitions and to the war effort. Defaming minority groups tugged at the consciences of Americans who embraced the democratic ideals of equality and tolerance for which the nation was fighting. Many held that in a period of war and social unrest, restricting the defamation of groups mattered more than halting the defamation of individuals.
Between 1940 and 1945, the United States undertook a historic experiment with group libel and “race hate” legislation. Hate-speech laws were enacted, most of which imposed criminal liability for statements about racial and religious groups that caused breaches of the peace or that damaged those groups’ reputations. The declared purpose of these laws was to protect domestic peace and the war effort by preventing attempts to pit labor against management, race against race, and religion against religion.
During World War II, several prominent lawyers and scholars urged the adoption of hate-speech laws, presenting them as a means to foster democracy and social order in a world scarred by prejudice and conflict. One of the most notable proponents was a law professor named David Riesman.
At Harvard Law School, Riesman had been mentored by Felix Frankfurter and later worked as a clerk for Supreme Court Justice Louis Brandeis. In the late 1940s, he shifted from law to sociology. It was his subsequent work, The Lonely Crowd (1950), that made him a household name, a critique of American consumer culture that defined a generation and even graced the cover of Time magazine.
In mid-1941, Riesman accepted a one-year fellowship at Columbia Law School. During that year, he authored a trio of articles published in The Columbia Law Review under the heading “Democracy and Defamation.” This trilogy would become a foundational basis for the law and theory of group defamation.
Riesman observed that defaming minority groups was not a novel phenomenon, but what was new and especially perilous was the spread of group hatreds through mass media. He described how the Nazis used media-driven propaganda against Jews to justify their annihilation. “In the fascist tactic, defamation becomes a form of verbal sadism, to be used in the early stages of the conflict, before other forms of sadism are safe,” he wrote. He pointed to the rise of Father Coughlin and noted that America was far from immune to the struggle between democracy and fascism.
Riesman believed that carefully crafted group-defamation laws could curb the spread of fascist movements and enable minority groups to defend themselves against their attackers. He drew inspiration from Karl Loewenstein, a German émigré political scientist who advocated the notion of “militant democracy.” In a series of articles published in American law journals, Loewenstein argued that democracies must become “militant.” When faced with existential threats, such as the rise of internal fascist groups, democracies should adopt antidemocratic laws to safeguard democracy itself. Since fascists appealed to emotion rather than reason, Loewenstein contended that democracies could not rely on counterspeech to defeat fascist propaganda. Only by denying fascists freedom of speech and press could democracies “fight fire with fire.” He maintained that European nations with the strongest commitments to free speech were often those where fascism had found footholds, and that only those nations that suspended civil liberties had succeeded in defeating fascism. By depriving fascists of freedom of speech and press, democracies removed their most powerful tools to generate popular support.
Riesman supported adopting group-defamation laws but acknowledged potential obstacles. The American tradition of free speech was not the only barrier; another challenge was the tendency to view reputation as belonging to individuals rather than to groups. Libel laws punished the defamation of individuals and could not be used against “group hatreds.” Embracing group-defamation statutes would require a fundamental rethinking of “the role of groups in the social process,” Riesman wrote. He suggested that personal reputation mattered less in the United States than in Europe, where it was tied to dignity and honor. In the United States, where the economy favored capitalism over feudal loyalties, reputation was treated as an asset like goodwill and not an intrinsic virtue to be pursued for its own sake, according to Riesman. Lawyers who treated reputation as a market asset were unlikely to strike effective blows at the fascist strategy of conquering communities by division, he argued.
Foreshadowing later debates about hate speech, Riesman argued that liberals, with their usual caution about enlarging state power, had underestimated the potential of group-defamation laws as a democratic instrument. Such statutes could prevent fascism from seizing control of democracy and, additionally, offer defamed groups a means to restore their reputations and dignity. Riesman maintained that group-defamation laws were not merely restraints on speech but tools for liberals to defend democratic values. His writings would later inform the majority opinion in Beauharnais v. Illinois, the 1952 Supreme Court decision upholding the Illinois hate-speech statute drafted by his mentor, Felix Frankfurter.
Excerpted from Hate Speech: The Legal and Cultural History of an American Dilemma by Samantha Barbas, courtesy of the University of California Press. Copyright © 2026.
