This article canvasses the traditional techniques for the control of defamation, and analyzes what these have accomplished and what they have to offer for the control of defamation against groups. The author concludes that the Courts remain reluctant to provide any protection in cases of group defamation for fear of unconstitutionality of their decisions.

The group defamation rule specifies that when a group is defamed, an individual plaintiff cannot sustain an independent defamation lawsuit except in certain cases. This article argues that rule is illogical, unfair, and no longer necessary. It proposes abolishing the rule restricting defamation suits by group members. It argues that group members should be permitted to proceed in accordance with the general standards of defamation law.

This article submits that the law should provide a remedy for racial and ethnic group defamation. It is paradoxical for the law to only allow a remedy for individual defamation. The current civil damage lawsuit for defamation is inapplicable because courts consistently deny damages for group defamation by refusing to recognize the individual harm caused by group defamation. Likewise, criminal defamation statutes are now found in fewer than half the states and rarely used by prosecutors. This Article proposes enacting a declaratory judgment statute at the state level to remedy group racial and ethnic defamation.

This Article defends the characterization of hate speech as group defamation. It argues that hate speech impugns its victims’ standing as equal members of society.  It describes hate speech regulation as the protection of a fragile public good: the assurance offered by each member of society to all of its members that they can live free of fear, discrimination, violence, and the like. The article argues that with sufficient safeguards the loss is vanishingly small, and well worth the concomitant gains. As well, prohibitions on hate speech should only extend to issues that are “settled,” such as race, rather than issues that are currently controversial, which should further allay concerns that hate speech regulation will foreclose freedom or democratic debate.