The 1940s: "A Systematic Avalanche of Falsehoods"

During the Second World War, America was flooded with "hate literature." A "systematic avalanche of falsehoods" besieged the nation, in the words of one commentator. Native fascist groups and agents of Nazi Germany circulated pamphlets and periodicals with titles like America Preferred, The Cross and the Flag, The Defender, Patriotic Research Bulletin, and X-Ray. "Vicious literature … assailing minority groups on racial and religious grounds" was being spread in large quantity in major cities. Crude leaflets containing racist, antisemitic, and anti-Catholic invective were being distributed in war factories and at Army and Navy camps. The purpose of this "hate literature" was to undermine the morale and unity that was needed for the war effort by fomenting violence between races and religions. This "hate propaganda" seemed to be having its intended effects. "Hate propaganda" was said to be responsible for major riots in munitions plants in Boston, Los Angeles, and Harlem that resulted in deaths and property damage running into the millions. A June 1943 race riot that killed thirty-four in the war production center of Detroit was tied to material distributed by Nazi sympathizers. In New York, attacks on Jews had been provoked by Father Coughlin's Social Justice magazine. Antisemitic gangs confronted people on the streets, demanded to know if they were Jewish, and beat them if they said they were. Gangs desecrated nearly every synagogue in Washington Heights. In Boston, bands of Irish Catholic youths, members of Coughlin's Christian Front, assaulted Jews in the streets with blackjacks and vandalized stores and homes. Youths deliberately entered neighborhoods to go "Jew hunting." The New York newspaper PM described it as a "reign of terror." Under these circumstances, many believed, America had to take drastic steps to curb "hate propaganda." The defamation of racial and religious groups was said to present "clear and immediate dangers" to the production of munitions and carrying out the war effort. Defamation of minority groups tugged at the consciences of Americans who embraced the democratic ideals of equality and tolerance that the nation was fighting for. Many believed that in the context of war and social unrest, it was more important to curtail the defamation of groups than it was to halt the defamation of individuals. Between 1940 and 1945, the United States embarked on a historic experiment with group libel and "race hate" legislation. Hate speech laws were passed, with most of them imposing criminal liability for statements about racial and religious groups that caused breaches of the peace or that defamed those groups. The stated purpose of the laws was to protect domestic peace and the war effort by thwarting attempts to "set … labor against management, race against race, [and] religion against religion." … … During World War II, several prominent lawyers and academics advocated hate speech laws, portraying them as a means of fostering democracy and social order in a world that was wracked by prejudice and conflict. One of the most noted advocates of hate speech laws was a law professor named David Riesman …. At Harvard Law School, Riesman had been a protégé of professor Felix Frankfurter. He later served as a clerk for Supreme Court justice Louis Brandeis. In the late 1940s, he left the field of law for sociology. It was only then that Riesman became a household name with his bestselling book The Lonely Crowd (1950), a critique of American consumer culture that defined a generation and that was so renowned that it made the cover of Time magazine. In mid-1941, Riesman took a one-year fellowship at Columbia Law School. During that year, he wrote a series of three articles that were published in The Columbia Law Review, under the title "Democracy and Defamation." His trilogy would go down in history as foundational writings on the law and theory of group defamation. Defamation of minority groups was hardly a new phenomenon, Riesman observed. What was new and especially dangerous was the dissemination of group hatreds through the mass media. He described how Nazis were using mass-mediated 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," Riesman wrote. Pointing to the rise of Father Coughlin, he noted that America was hardly immune to the struggle between democracy and fascism. Riesman believed that carefully crafted group defamation laws might curb the spread of fascist movements and permit minority groups to fight back against their attackers. He was inspired by the work of German émigré political scientist Karl Loewenstein, who advocated the concept of "militant democracy." In a series of articles published in American law journals, Loewenstein, who fled the Nazis in the mid-1930s, argued that democracies must become "militant." When faced with existential threats, such as the rise of internal fascist groups, democracies must adopt antidemocratic laws as a means of saving democracy. Because fascists played to people's emotions rather than reason, democracies could not rely on counterspeech to dispel fascist propaganda, Loewenstein argued. Only by denying fascists freedom of speech and press could democracies "fight fire with fire." Loewenstein contended that European countries with the most extensive commitments to free speech were those where fascism had taken root. Only those nations that had suspended civil liberties had been successful in defeating fascism, according to Loewenstein. By denying fascists freedom of speech and press, democracies removed their opponents' most powerful tools for raising popular support. Riesman advocated the adoption of group defamation laws but noted potential obstacles to their passage. The American tradition of freedom of speech was not the only hurdle. Another difficulty was the American tendency to see reputation as something belonging only to individuals and not to groups. Libel laws punished only the defamation of individuals and could not be used against "group hatreds." The adoption of group defamation laws would require a fundamental reassessment of "the role of groups in the social process," Riesman wrote. He speculated that personal reputation was not as important in the United States as it was in Europe, where it was tied to dignity and honor. In the United States, where tradition is "capitalistic rather than feudalistic," reputation was viewed as "an asset like goodwill, and not an attribute to be sought after for its intrinsic value," according to Riesman. Lawyers who viewed reputation in these market-oriented terms were "not likely to strike effective blows" at the fascist 'conquer by division' tactic of disingenuous assaults upon the Catholics, Jews, and other convenient minorities," he argued. Foreshadowing dialogues around hate speech that would take place more than a half century later, Riesman contended that liberals, with their traditional fear of the state, had underestimated the potential of group defamation laws as "a weapon for democracy." Such laws could prevent the takeover of democracy by fascism, and secondarily, permit a means for defamed groups to vindicate their reputations and their dignity. Group defamation laws, Riesman asserted, were not merely a restraint on speech but a tool that liberals could use in defense of democratic values. His articles would provide the intellectual basis for the majority opinion in Beauharnais v. Illinois, the 1952 Supreme Court decision upholding the Illinois hate speech law that was authored 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.