In recent years, the tension between the values of the First Amendment Free Speech doctrine and the desire to protect minority communities against the destructive effects of hateful speech has been investigated extensively. A recent example is the compelling discussion provided by Professor Nadine Strossen in her 2018 book, Hate Speech: Why We Should Resist It with Free Speech, Not Censorship. Her book was one of the focal points of a 2019 conference on free speech at Mitchell Hamline School of Law. Another focal point was the Supreme Court’s landmark 1931 decision, Near v. Minnesota. In this decision, the Supreme Court established the now-familiar rule against prior restraints, thereby invalidating an infamous injunction issued against a Minneapolis newspaper ninety years before the date of the conference.
The Near decision is mostly known for the rule against prior restraints. But in ways unremarked upon at the time of its issuance as well as today, it also provides an early example of the tension between free speech values and the potential harms of hate speech. This is because most of the very newspaper articles that were the subject of the injunction were notably antisemitic. In protecting the newspaper against the state court’s injunction, the U.S. Supreme Court was also protecting the rights of the publishers to engage in the propagation of antisemitic discourse, some of it genuinely hateful.
This Article now appears in the context of the closing months of the presidential administration of Donald Trump and the early months of that of Joe Biden. During the months before and after the conference, President Trump and other politicians of both parties have engaged in antisemitic discourse. And those same months also saw some of the worst antisemitic violence in the United States in recent memory; one of the attacks probably being the worst in U.S. history.
The era of the Near decision, shortly before the outbreak of World War II, was a time when the full extent of the destruction possible as an outgrowth of antisemitic rhetoric was still being established. Our own era has involved recent escalation of antisemitism in the United States during and since the Trump administration. This could well further escalate after particular followers of that administration now become frustrated as they find themselves in opposition. The lessons of the Near era may provide guidance for courts today.
This Article addresses the discourse of courts and judges when considering U.S. antisemitism, and in so doing, posits the existence of an “Ignominy Threshold.” During the 1920s and 1930s, U.S. society was advancing more and more closely to the Ignominy Threshold but had not crossed it by the time Near was decided in 1931. Accordingly, the Supreme Court exercised restraint through its minimal acknowledgment of the antisemitism underlying the Near facts. The horrors of World War II and the Holocaust pulled the United States back from the brink of this Threshold. And so, the Supreme Court’s virtual silence on antisemitism in Near caused no great harm. But it may well be that the challenges of the coming months, in light of recent events, could bring us close again. In that event, the restraint exhibited by the Justices in Near, should analogous situations arise again, would be ill-advised.