Group libelling - March 18, 1944

By Jean-Yves Gilg

From the Massachusetts Law Quarterly for December, 1943, we gratefully cull an extract from the Boston Herald of 28th May, 1943, on a subject which is bound to exercise the minds of all thinking lawyers on both sides of the Atlantic for many years to come. The frightfully disintegrating factor of racial and religious hatred with which Hitler, his satellites and friends succeeded in infecting most countries of the world will be bound to leave its effects for many years to come. The shocking pass to which this can bring any country which allows it to proceed unchecked is best illustrated by the present condition of the states now opposing the United Nations. The extract states: “Massachusetts has now become one of the few states which have enacted statutes penalizing the libel of groups of persons. It is important that the nature of this law should be clearly understood. It provides that 'whoever publishes any false written or printed material with intent to maliciously promote hatred of any group of persons in the Commonwealth because of race, color, or religion shall be guilty of libel.' The prescribed penalties are a maximum fine of $1000 or imprisonment of not more than a year, or both. (St. 1943 c. 223.) The drastic nature of this act is relieved by two additional provisions. A defendant may offer in defence that no malice was involved. That, of course, is usual in libel laws. What is most unusual is that only the attorney-general ?or a district-attorney can institute prosecutions. This is a necessary safeguard. Such a law without a similar provision might easily lead to unfortunate conditions.” It is significant that Massachusetts, one of the New England states colonized by some of the earliest refugees from tyranny in Western Europe, should be in the vanguard of the struggle to find the right answer to this terrible weapon of tyranny. So far as the law of civil actions for defamation in England is concerned, it has been said by Willes, J., that “if a man wrote that all lawyers were thieves, no particular lawyer could sue him unless there is something to point to the particular individual” (Eastwood v. Holmes, 1 F. & F. 340). If the class libelled is definitely limited, for example the members of a particular club, then any member may sue (Hamson v. Thornborough, 10 Mod. 196). The matter, in view of the grave social consequences of group libel, is more appropriate for treatment by the criminal law. In this country group libels seem to come under the head of sedition, as practices which “directly tend or have for their object… to excite ill-will between different classes of the King's subjects” (Archbold's “Criminal Pleading, Evidence and Practice,” 1943 ed., p. 1115). If they come under this heading, all that remains is that the law should be rigidly enforced. The problem is indeed grave, and the State of Massachusetts must be congratulated for its courage in tackling it.