Racial and Ethnic Group Defamation: A Speech-Friendly Proposal

Abstract

In AIDA v. Time Warner Entertainment Company, currently before the Illinois Supreme Court, the American Italian Defense Association (AIDA) alleges that the television series 'The Sopranos" portrays the criminal and psychopathically depraved character of the Mafia underworld as the dominant motif of Italian and Italian American culture. The author, drawing upon his experience as cocounsel to AIDA, 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 suggested remedy takes the form of model legislation in the Appendix to this Article.