Beauharnais v. Illinois eText - Primary Source

Primary Source


Supreme Court decision

By: Felix Frankfurter, Hugo L. Black, William O. Douglas

Date: April 28, 1952

Source: Frankfurter, Felix, Hugo L. Black, and William O. Douglas. Beauharnais v. Illinois. 343 U.S. 250 (1952). Available online at ; website home page: (accessed February 28, 2003).

About the Authors: Felix Frankfurter (1882–1965) was a Harvard Law professor and advisor to President Franklin D.

Roosevelt (served 1933–1945). A longtime friend of justices Louis D. Brandeis and Oliver Wendell Holmes, he served on the Supreme Court 1939–1962 and was known for his vigorous defense of civil rights and his scholarly writings.

Hugo L. Black (1886–1971) served two terms as a U.S. senator from Alabama and was known as a New Deal liberal. His 1937 appointment to the Supreme Court roused controversy when his past membership in the Ku Klux Klan became public, although he had long ago left the group. His term was generally distinguished by his support of civil rights.

William O. Douglas (1898–1980) chaired the Securities and Exchange Commission in 1939, when he became, at forty, one of the youngest men ever appointed to the Supreme Court. He served over thirty-six years, the longest of any justice, retiring in 1975. Many thought Douglas would be pro-business, but he devoted himself to the defense of the Bill of Rights and freedom of speech.


Freedom of expression, in speech and press, has a long history as one of America's most valued—and protected—rights. The First Amendment was added to the Constitution with the Bill of Rights in 1791, stating "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

Freedom of the press in the United States, like freedom of speech, has never been absolute. Nearly all states at the time of the Constitution excluded libel, or the defamation of an individual, from First Amendment protection. Over the years other exceptions to the protection of speech and press from First Amendment rights have arisen. Most of the early examples were obscenity cases. Later, freedom of the press was infringed during World War I (1914–1918) when the Supreme Court allowed the censorship of certain newspapers and periodicals as a part of the war effort. In 1925, the Supreme Court upheld the conviction of Benjamin Gitlow for his role in publishing a document called "The Left-Wing Manifesto," ruling that it presented a "clear and present danger" to the government. Gitlow was notable as the first time that the Supreme Court had held that First Amendment protection of speech and press applied against state laws as well as federal, since the Fourteenth Amendment stipulates that no state can make any law that limits the rights assured to individual citizens by the federal government. In 1942, in Chaplinsky v. New Hampshire, the Supreme Court held that "fighting words" were not protected under the First Amendment, stating that words that inflict injury or incite an immediate breach of the peace are not protected.

Hate speech or press has traditionally been protected under the First Amendment, but this has generated considerable debate. Could hate speech—which is similar to libel but directed at a group—be excluded from protection under the First Amendment in the way that libel against an individual is excluded? Speech advocating issues such as segregation of the races, though, falls into the category of political discussion. Protecting the right to freely discuss ideas is vital under the Bill of Rights. This debate arose in 1950, at a time of great racial tension in Illinois. Joseph Beauharnais, the president of a white supremacy group, distributed a leaflet calling for white people to unite in an all-out effort to stop African Americans from residing and intermingling with whites. Beauharnais was arrested under an Illinois criminal libel law which prohibited any published material that "portrays depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, creed, color, or religion which said publication or exhibition exposes the citizens of any race, color, creed, or religion to contempt, derision, or obloquy or which is productive of breach of the peace or riots." When the Illinois courts upheld Beauharnais's conviction, the case went to the Supreme Court to determine whether the Fourteenth Amendment restricted the power of Illinois to prohibit speech or press that promoted friction among racial groups.


The Supreme Court narrowly upheld the Illinois criminal libel law in Beauharnais v. Illinois. Frankfurter argued that since an individual can be prohibited from using fighting words against an individual, he or she can also be prohibited from using them against a group. His decision used a sort of "balancing" test, balancing the rights of the individual against the rights of the state to keep peace. The dissent, however, argued that the First Amendment either allowed no infringements, or should only be abridged when no other way could be found to achieve the government's vital interest. Although Beauharnais has never been overturned, the decision was heavily criticized, particularly because Frankfurter's argument was so heavily based on the historical circumstances of racial conflict in Chicago at the time of the case. Later cases did not follow its lead.

Since Beauharnais, protection of hate speech under the First Amendment has been upheld in several cases. In Collin v. Smith (1978), for example, the U.S. Court of Appeals affirmed that the village of Skokie could not deny a group of Nazis the right to march through the town or prohibit the dissemination of materials that would promote hatred toward persons on the basis of their heritage. In the 1992 case R.A.V. v. City of St. Paul, which involved the burning of a cross in an African American family's yard, the Supreme Court struck down a city ordinance that outlawed symbolic speech, specifically including cross burning and swastikas.

Fears about limiting freedom of expression were somewhat assuaged in the 1964 case of The New York Times v. Sullivan. The New York Times had been sued for an advertisement that it ran containing some false statements about police treatment of civil rights protesters in Alabama. L.B. Sullivan, a county commissioner, had taken the Times to court and won a $5 million settlement. The Supreme Court overturned the verdict, holding that Sullivan must prove that the statement had been published by the Times "with knowledge that it was false or with reckless disregard of whether it was false or not." Thus, libel was "not categorically excluded from constitutional protection." This ensures individuals and publications the right to freely criticize public figures, in speech or in publication, as long as what they express about these figures is not knowingly false. This rule has generally been sustained by courts.

Primary Source: Beauharnais v. Illinois [excerpt]

SYNOPSIS: In his majority opinion, Justice Felix Frankfurter states that Illinois can punish speech that creates racial hatred. Justice Hugo L. Black dissents, holding that the court's decision allowing the abridgment of freedom of speech threatens all freedoms. Justice William O. Douglas dissents as well, arguing that the founding fathers wanted the United States to have free speech.

Mr. Justice Frankfurter delivered the opinion of the Court.…

The precise question before us, then, is whether the protection of "liberty" in the Due Process Clause of the Fourteenth Amendment prevents a State from punishing such libels … directed at designated collectivities and flagrantly disseminated.… We cannot say, however, that the question is concluded by history and practice. But if an utterance directed at an individual may be the object of criminal sanctions, we cannot deny to a State power to punish the same utterance directed at a defined group, unless we can say that this is a willful and purposeless restriction unrelated to the peace and well-being of the State.

… we would deny experience to say that the Illinois legislature was without reason in seeking ways to curb false or malicious defamation of racial and religious groups, made in public places and by means calculated to have a powerful emotional impact on those to whom it was presented.…

We are warned that the choice open to the Illinois legislature here may be abused, that the law may be discriminatorily enforced; prohibiting libel of a creed or of a racial group, we are told, is but a step from prohibiting libel of a political party. Every power may be abused, but the possibility of abuse is a poor reason for denying Illinois the power to adopt measures against criminal libels sanctioned by centuries of Anglo-American law. "While this Court sits" it retains and exercises authority to nullify action which encroaches on freedom of utterance under the guise of punishing libel. Of course discussion cannot be denied and the right, as well as the duty, of criticism must not be stifled.…

We find no warrant in the Constitution for denying to Illinois the power to pass the law here under attack. But it bears repeating—although it should not—that our finding that the law is not constitutionally objectionable carries no implication of approval of the wisdom of the legislation or of its efficacy. These questions may raise doubts in our minds as well as in others. It is not for us, however, to make the legislative judgment. We are not at liberty to erect those doubts into fundamental law.


Mr. Justice Black, with whom Mr. Justice Douglas concurs, dissenting.…

That Beauharnais and his group were making a genuine effort to petition their elected representatives is not disputed.… Without distortion, this First Amendment could not possibly be read so as to hold that Congress has power to punish Beauharnais and others for petitioning Congress as they have here sought to petition the Chicago authorities.… And we have held in a number of prior cases that the Fourteenth Amendment makes the specific prohibitions of the First Amendment equally applicable to the states.

In view of these prior holdings, how does the Court justify its holding today that states can punish people for exercising the vital freedoms intended to be safeguarded from suppression by the First Amendment? The prior holdings are not referred to; the Court simply acts on the bland assumption that the First Amendment is wholly irrelevant. It is not even accorded the respect of a passing mention. This follows logically, I suppose, from recent constitutional doctrine which appears to measure state laws solely by this Court's notions of civilized "canons of decency," reasonableness, etc.… Under this "reasonableness" test, state laws abridging First Amendment freedoms are sustained if found to have a "rational basis." …

It is now a certainty that the new "due process" coverall offers far less protection to liberty than would adherence to our former cases compelling states to abide by the unequivocal First Amendment command that its defined freedoms shall not be abridged.

The Court's holding here and the constitutional doctrine behind it leave the rights of assembly, petition, speech and press almost completely at the mercy of state legislative, executive, and judicial agencies.… My own belief is that no legislature is charged with the duty or vested with the power to decide what public issues Americans can discuss. In a free country that is the individual's choice, not the state's. State experimentation in curbing freedom of expression is startling and frightening doctrine in a country dedicated to self-government by its people. I reject the holding that either state or nation can punish people for having their say in matters of public concern.…

This statute imposes state censorship over the theater, moving pictures, radio, television, leaflets, magazines, books and newspapers. No doubt the statute is broad enough to make criminal the "publication, sale, presentation or exhibition" of many of the world's great classics, both secular and religious.

The Court condones this expansive state censorship by painstakingly analogizing it to the law of criminal libel.…

Prior efforts to expand the scope of criminal libel beyond its traditional boundaries have not usually met with widespread popular acclaim.…

Unless I misread history the majority is giving libel a more expansive scope and more respectable status than it was ever accorded even in the Star Chamber.…

This Act sets up a system of state censorship which is at war with the kind of free government envisioned by those who forced adoption of our Bill of Rights. The motives behind the state law may have been to do good. But the same can be said about most laws making opinions punishable as crimes. History indicates that urges to do good have led to the burning of books and even to the burning of "witches."

No rationalization on a purely legal level can conceal the fact that state laws like this one present a constant overhanging threat to freedom of speech, press and religion. Today Beauharnais is punished for publicly expressing strong views in favor of segregation. Ironically enough, Beauharnais, convicted of crime in Chicago, would probably be given a hero's reception in many other localities, if not in some parts of Chicago itself. Moreover, the same kind of state law that makes Beauharnais a criminal for advocating segregation in Illinois can be utilized to send people to jail in other states for advocating equality and nonsegregation. What Beauharnais said in his leaflet is mild compared with usual arguments on both sides of racial controversies.

We are told that freedom of petition and discussion are in no danger "while this Court sits." This case raises considerable doubt. Since those who peacefully petition for changes in the law are not to be protected "while this Court sits," who is? I do not agree that the Constitution leaves freedom of petition, assembly, speech, press or worship at the mercy of a case-by-case, day-by-day majority of this Court. I had supposed that our people could rely for their freedom on the Constitution's commands, rather than on the grace of this Court on an individual case basis. To say that a legislative body can, with this Court's approval, make it a crime to petition for and publicly discuss proposed legislation seems as farfetched to me as it would be to say that a valid law could be enacted to punish a candidate for President for telling the people his views. I think the First Amendment, with the Fourteenth, "absolutely" forbids such laws without any "ifs" or "buts" or "whereases." Whatever the danger, if any, in such public discussions, it is a danger the Founders deemed outweighed by the danger incident to the stifling of thought and speech. The Court does not act on this view of the Founders. It calculates what it deems to be the danger of public discussion, holds the scales are tipped on the side of state suppression, and upholds state censorship. This method of decision offers little protection to First Amendment liberties "while this Court sits."

If there be minority groups who hail this holding as their victory, they might consider the possible relevancy of this ancient remark:

Another such victory and I am undone.

Mr. Justice Douglas, dissenting.

Hitler and his Nazis showed how evil a conspiracy could be which was aimed at destroying a race by exposing it to contempt, derision, and obloquy. I would be willing to concede that such conduct directed at a race or group in this country could be made an indictable offense. For such a project would be more than the exercise of free speech. Like picketing, it would be free speech plus.

I would also be willing to concede that even without the element of conspiracy there might be times and occasions when the legislative or executive branch might call a halt to inflammatory talk, such as the shouting of "fire" in a school or a theatre.

My view is that if in any case other public interests are to override the plain command of the First Amendment, the peril of speech must be clear and present, leaving no room for argument, raising no doubts as to the necessity of curbing speech in order to prevent disaster.

The First Amendment is couched in absolute terms—freedom of speech shall not be abridged. Speech has therefore a preferred position as contrasted to some other civil rights. For example, privacy, equally sacred to some, is protected by the Fourth Amendment only against unreasonable searches and seizures. There is room for regulation of the ways and means of invading privacy. No such leeway is granted the invasion of the right of free speech guaranteed by the First Amendment.…

In matters relating to business, finance, industrial and labor conditions, health and the public welfare, great leeway is now granted the legislature, for there is no guarantee in the Constitution that the status quo will be preserved against regulation by government. Freedom of speech, however, rests on a different constitutional basis. The First Amendment says that freedom of speech, freedom of press, and the free exercise of religion shall not be abridged. That is a negation of power on the part of each and every department of government. Free speech, free press, free exercise of religion are placed separate and apart; they are above and beyond the police power; they are not subject to regulation in the manner of factories, slums, apartment houses, production of oil, and the like.

The Court in this and in other cases places speech under an expanding legislative control.… The Framers of the Constitution knew human nature as well as we do. They too had lived in dangerous days; they too knew the suffocating influence of orthodoxy and standardized thought. They weighed the compulsions for restrained speech and thought against the abuses of liberty. They chose liberty. That should be our choice today no matter how distasteful to us the pamphlet of Beauharnais may be. It is true that this is only one decision which may later be distinguished or confined to narrow limits. But it represents a philosophy at war with the First Amendment—a constitutional interpretation which puts free speech under the legislative thumb. It reflects an influence moving ever deeper into our society. It is notice to the legislatures that they have the power to control unpopular blocs. It is a warning to every minority that when the Constitution guarantees free speech it does not mean what it says.

Further Resources


Bollinger, Lee C., and Geoffrey R. Stone. Eternally Vigilant: Free Speech in the Modern Era. Chicago: University of Chicago Press, 2002.

Heumann, Milton, Thomas W. Church, and David P. Redlawsk. Hate Speech on Campus: Cases, Case Studies, and Commentary. Boston: Northeastern University Press, 1997.

Hockett, Jeffrey D. New Deal Justice: The Constitutional Jurisprudence of Hugo L. Black, Felix Frankfurter, and Robert H. Jackson. Lanham, Md.: Rowman & Littlefield, 1996.

Simon, James F. The Antagonists: Hugo Black, Felix Frankfurter, and Civil Liberties in Modern America. New York: Simon and Schuster, 1989.

Urofsky, Melvin I. Felix Frankfurter: Judicial Restraint and Individual Liberties. Boston: Twayne, 1991.

Walker, Samuel. Hate Speech: The History of an American Controversy. Lincoln, Nebr.: University of Nebraska Press, 1994.


Neely, Alfred S. "Mr. Justice Frankfurter's Iconography of Judging." Kentucky Law Journal 83, no. 2, 1993–1994, 535–573.


"Hate Speech." American Library Association. Available online at ; website home page: (accessed February 28, 2003).