That liberal vision, of Jews flourishing as individual citizens living in voluntary communities, neatly matched the egalitarian ideals of the young republic. It worked well in a country where Jews remained a negligible percentage of the population, and where there were virtually no Jews of color. In Washington’s day, the 1790 census counted a mere 1,500 Jews, most of whom came from Sephardic backgrounds in western Europe, amounting to 0.05 percent of the total American population. A century later, despite another wave of immigration, this time from German-speaking Central Europe, the number had risen only to 0.5 percent.
Then, in the late 19th century, millions of Yiddish-speaking eastern-European Jews began to pour into American society. Their arrival coincided with the post-Reconstruction rise of modern American nativism, Jim Crow laws, and a new current of racial anti-Semitism. Suddenly, formal religious equality was not enough to stop active discrimination from WASP elites in the urban North, or rippling threats of violence from Southern Ku Klux Klan members. New kinds of anti-Semitic mass media and populist demagogues targeted wealthier, acculturated Jews and their unwashed immigrant cousins alike. They blamed successful Jewish entrepreneurs for the ills of capitalism and poorer newcomers for their racial deviancy. Almost overnight, America decided that Jews might not count as fully white after all.
In May 1907, the management of the Marlborough-Blenheim Hotel in Atlantic City, New Jersey, turned away the family of a Jewish widow from Baltimore named Bertha Rayner Frank with a curt line: “We don’t entertain Hebrews.” In response, Louis Marshall, a renowned constitutional lawyer and the president of a newly established Jewish civil-rights organization, the American Jewish Committee, proposed an anti-discrimination law for New York State. When finally passed in 1913, the New York Civil Rights Act banned denial of service to people at restaurants, hotels, and all manner of other commercial venues based on race, color, or creed. Yet in a twist, it also prohibited any advertising that even mentioned denying accommodations to certain groups. Now it was a legally punishable offense to discriminate in deed or to defame in words.
That same year, the Anti-Defamation League launched as a second Jewish civil-rights organization. Its stated mission was “to stop, by appeals to reason and conscience and, if necessary, by appeals to law, the defamation of the Jewish people.” Over the next decade, at the behest of Jewish civil-rights groups, six more states followed New York’s lead, drafting laws that outlawed advertising and other published expressions of discrimination directed at a specific group. At root, these laws relied on a concept of group defamation, or, as it was alternately known, group libel. For hundreds of years, English common law had recognized the individual citizen’s right to sue for personal libel. Now state legislatures began to experiment with civil-rights statutes that allowed for the prosecution of individuals who defamed or injured the reputation or property of members of a minority group. Marshall even helped sponsor a draft federal law before World War I to ban the dissemination of hate literature by U.S. mail.