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.