In 1791, South Carolina’s court of last resort held that falsely describing an individual as a mulatto was actionable “because, if true, the [plaintiff] would be deprived of all civil rights.”

Posted in Excerpts/Quotes on 2012-11-28 01:46Z by Steven

The use of defamation law to reinforce privately held class-based animus traces back at least to the eighteenth century. In 1791, South Carolina’s court of last resort held that falsely describing an individual as a mulatto was actionable “because, if true, the [plaintiff] would be deprived of all civil rights.” False imputations that white persons were nonwhite or otherwise racially “impure” remained actionable in parts of the United States well into the twentieth century, particularly across the South. In 1957, South Carolina, for example, reaffirmed the precedent set in 1791. In Bowen v. Independent Publishing Co., the South Carolina Supreme Court held that allegations of racial impurity remained per se defamatory because, in light of the “social habits and customs deep-rooted in this State, such publication [alleging nonwhite lineage] is calculated to affect [one’s] standing in society and to injure [one] in the estimation of [one’s] friends and acquaintances.” Bowen and other decisions like it used the judicial arm of the state to reinforce Jim Crow under the guise of “neutrally applied” common law. By sanctioning these causes of action, the state reinforced notions of white supremacy and “affirmed the honor of whites by authoritatively denying status to blacks.”

Anthony Michael Kreis, “Lawrence Meets Libel: Squaring Constitutional Norms with Sexual-Orientation Defamation,” The Yale Law Journal Online, Volume 122, Issue 2 (November 2012):125-141. http://www.yalelawjournal.org/forum/lawrence-meets-libel-squaring-constitutional-norms-with-sexual-orientation-defamation.

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The Negro Defined

Posted in Articles, Law, Media Archive, United States on 2011-12-17 20:10Z by Steven

The Negro Defined

The Yale Law Journal
Volume 20, Number 3 (January, 1911)
pages 224-225

In many of the states where a considerable portion of the population is colored, statutes define the term negro and establish his status where the same is considered, because of local conditions, as essentially different from that of Caucasians. Where legislatures have either negligently or intentionally left the terms “negro” and “colored” undefined, courts have faced difficulty in reaching exact decisions on the point of just what proportion of negro blood in a person of mixed racial descent will constitute him or her a “negro” or “colored.” The question is purely academic, and its settlement lies largely in the discretion of the court, in combining technical definitions of ethnological experts and accepted public opinion on the subject.

In the recent case of State of Louisiana v. Treadway, 52 So., 500, an exhaustive review of statutory and judicial law resulted in a divided court on the question in issue. Here the defendant, a male octoroon, was indicted, charged with having lived in concubinage with a female member of the Caucasian race. The statute governing the alleged offense made criminal, concubinage between members of the Caucasian race and members of the negro or black race.

The decision hinged on the question in issue: “Was an octoroon a member of the negro or black race?” The court decided, three to two, that the defendant, an octoroon, was not a negro within the meaning of the statute…

Read the entire article here.

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