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Howard Dean: “Hate Speech Is Not Protected By the First Amendment”

Howard Dean: “Hate Speech Is Not Protected By the First Amendment”

“No, Gov. Dean, there is no ‘hate speech’ exception to the First Amendment.”

https://legalinsurrection.com/wp-content/uploads/2015/06/Howard-Dean-on-Gruber.jpg

One of the fondest dreams of the radical (and not-so radical) left is to undermine the First Amendment and ultimately to control speech.  Democrats have advocated the DOJ’s investigation and even prosecution of climate “skeptics,” condemned “hate” speech formally in the House, supported the criminalization and ban of “hate” speech, and as we see play out on college campuses across the nation, resorted to violence as a response to speech with which they disagree.

This assault on one of our nation’s most cherished foundational principles is ongoing and has most recently manifested in a tweet by former governor and former Democrat presidential candidate Howard Dean.

Needless to say, this resulted in a storm of rebuttal both on Twitter and across the internet.

https://twitter.com/drawandstrike/status/855388712078856193

Heck, even PolitiFact managed to get this one right.

Eugene Volokh, writing at the Washington Post, responds, “No, Gov. Dean, there is no ‘hate speech’ exception to the First Amendment.”

There is no hate speech exception to the First Amendment. Hateful ideas (whatever exactly that might mean) are just as protected under the First Amendment as other ideas. One is as free to condemn, for instance, Islam — or Muslims, or Jews, or blacks, or whites, or illegal immigrants, or native-born citizens — as one is to condemn capitalism or socialism or Democrats or Republicans. As the Supreme Court noted in Christian Legal Society v. Martinez (2010), the First Amendment’s tradition of “protect[ing] the freedom to express ‘the thought that we hate’ ” includes the right to express even “discriminatory” viewpoints. (The quote comes from the four liberal justices, plus Justice Anthony Kennedy, but the four more conservative justices would have entirely agreed with this, though also extended it to university-recognized student groups’ freedom to exclude members, and not just their freedom to express their thoughts.)

To be sure, there are some kinds of speech that are unprotected by the First Amendment. But those narrow exceptions have nothing to do with “hate speech” in any conventionally used sense of the term. For instance, there is an exception for “fighting words” — face-to-face personal insults addressed to a specific person, of the sort that are likely to start an immediate fight. But this exception isn’t limited to racial or religious insults, nor does it cover all racially or religiously offensive statements. Indeed, when the City of St. Paul tried to specifically punish bigoted fighting words, the Supreme Court held that this selective prohibition was unconstitutional (R.A.V. v. City of St. Paul (1992)), even though a broad ban on all fighting words would indeed be permissible.

Volokh is not alone.

Charles Cooke writes at the National Review:

This is incorrect, and dramatically so. There is no such thing as “hate speech” in American jurisprudence, nor is there any associated or comparable principle that comes close to it. Whatever moral determinations an individual might make about the hatefulness of a given set of words, there is simply no mechanism by which the government can back him up with force. In the United States, there is speech, and then, at the bleeding edge, there are incitement, obscenity, and libel.

Contrary to Dean’s implication, none of this country’s “beyond-free-speech” categories are defined by subjective judgments such as “hatefulness,” “cruelty,” or “divisiveness,” and for good reason: If they were, we would all suffer under an effective Heckler’s Veto, and there would be no point in our having protections in the first instance.

Defensive about the backlash, Dean today doubled-down on this nonsensical statement.

Again, the response was fast and furious.

https://twitter.com/ishapiro/status/855623783255871489

That case covered “fighting words” as explained by Volokh in a second column at the Washington Post.

I’m pleased to say that I have read Chaplinsky v. New Hampshire (1942), which is usually cited as recognizing a “fighting words” exception to the First Amendment — personally addressed face-to-face insults that are likely to start an imminent fight are not constitutionally protected. But that has little to do with “hate speech” as most people tend to use the phrase: (1) Such personal insults are constitutionally unprotected entirely without regard to whether they are bigoted. (2) Bigoted expressions of opinion that don’t involve such personally addressed face-to-face insults are constitutionally protected. (3) Indeed, statutes that target only bigoted “fighting words” for special punishments are constitutionally unprotected, even if they are limited to such personally addressed face-to-face insults, see R.A.V. v. City of St. Paul (1992).

Sometimes, I’ve seen people cite Chaplinsky for the proposition that even general expressions of opinion are unprotected simply because they might yield a violent reaction. But while one can read Chaplinsky itself this way, later precedents make clear that this is not the law. Cohen v. California (1971) is the clearest example: Cohen was convicted for wearing a jacket that said “Fuck the Draft,” but the Court rejected the view that the conviction could be upheld on the grounds that the statement was “fighting words.”

Indeed, not only is “hate speech” (currently) devoid of legal meaning, but the specific “hate speech” to which Dean originally referred is not supported by the Chaplinsky decision.

Volokh continues:

Moreover, the particular statement to which Dean was apparently referring — Ann Coulter’s 2002 statement quoted as, “My only regret with Timothy McVeigh is he did not go to the New York Times Building” — would not constitute “fighting words,” whether if said in a speech at Berkeley (the apparent occasion for Dean’s quote), in the initial interview with the Observer, or most other contexts. So I don’t think that Chaplinsky does anything to support Dean’s initial statement.

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Comments

I have always thought howard was an idiot, but he PROVES it every time he opens his mouth.

the problem is who determines what constitutes hate speech or for that matter what are ‘fighting words’. is seems to me using Dean’s definition of hate speech, most if not all of the ‘antifa’ protest could be charged under that.

    Gremlin1974 in reply to ronk. | April 22, 2017 at 9:07 pm

    The actual problem is that there is no such thing as “Hate Speech” there is just Speech. It may be speech and you don’t like or disagree with, but like it or not even the most horrid idea’s of the KKK are protected.

Since everything that comes out of Howard Dean is hateful, I am surprised he does not recognize the value of protecting hate speech.

    Tom Servo in reply to EBL. | April 22, 2017 at 11:08 pm

    You reference what I think would be the PERFECT response to Howard Dean: “Yes Dr. Dean, Hate Speech should not be protected, and the person who should define Hate Speech is that person elected to the Highest Executive Office in the land, so Howard, don’t you agree that the only speech that should be allowed is speech which is approved by President Donald Trump?

Actually I am not surprised because Howard Dean is an idiot.

For your listening pleasure, 200 minutes of Howie Dean making sense….https://youtu.be/LE2Eevurn3w

Howard Dean’s the kind of person that lies to promote the liberal cause, yet also believes that other liberals are telling the truth. (See his defense of Clinton’s claims of ISIS using Trump campaign videos to recruit.)

How the heck did this dolt ever get to be an M.D.? I thought the standards were higher than that.

Perhaps Dr. Dean gets his legal advice from licensed attorney Chris Cuomo, of CNN fame, who tweeted, “Hate speech is excluded from protection. Don’t just say you love the Constitution … read it.”
Or maybe they’re both idiots.

So Howard, does this mean we can jail anyone who says or implies they don’t like Trump? We’re going to need a lot of paddywagons. First stop, Harvard University.

It seems to me that “fighting words” is best seen as a special case of incitement. Incitement, as the Supreme Court defines it, means speech that is both calculated and likely to temporarily deprive its audience of free will and turn them into robots who, as a direct reaction to ones words, immediately attack some third party. Fighting words, as the Supreme Court defined them in Chaplinsky, are the same thing, but instead of causing the audience to attack a third party they cause them to attack the speaker.

Either way, the reason for their lack of protection is that they are the same thing as hitting someone’s patellar ligament, causing him to kick someone in front of him; the person holding the hammer is the assailant, and the person whose leg did the actual kicking is merely his weapon.

    Tom Servo in reply to Milhouse. | April 23, 2017 at 11:24 am

    Like the famous example of shouting “fire!” in a crowded theater. Your shout is likely to cause a panic for the exits, which will likely cause harm. So, speech that is not allowed is that speech which is likely to cause *immediate* physical harm in the direct vicinity of the speaker, as a direct response to the words spoken.

    And that is a reasonable restriction.

      Gremlin1974 in reply to Tom Servo. | April 23, 2017 at 4:09 pm

      Exactly, it is not the speech itself that is actionable, it is the call to action that is the problem.

        Milhouse in reply to Gremlin1974. | April 24, 2017 at 1:20 am

        Calls to action are protected speech too. Protection ends only when the speech is not a call to action, i.e. mere advocacy, but is both calculated and likely to directly cause action, by bypassing the audience’s free will.

          Gremlin1974 in reply to Milhouse. | April 24, 2017 at 6:23 pm

          Ok, I get it so certain calls to action. But my question is how do you “bypass someone’s free will” with words? It seems impossible to me.

There are 4 justices on the Supreme Court that seem unable to comprehend that their opinion and politics are neither law nor the Constitution.

Every time some idiot tries to claim to me that ‘hate speech’ isn’t protected, the conversation flows along the following lines

1) I ask them to give me the legal definition of hate speech

2) They can’t (or they BS some vague crap, in which case you demand they reference the actual law, which they can’t because it doesn’t exist)

3) Tell them in order to outlaw ‘hate speech’, it has to be legally defined in a law passed by Congress

4) Ask them if they want Trump and the Republicans defining ‘hate speech’ for them.

5) They shut their mouths

The 1st amendment protects “hate” speech because it is offensive, via SCOTUS Larry Flint vs Jerry Falwell. It also protects the likes of Howard Dean to speak freely and be wrong on a consistent basis, placing no burden of proof on anything said in the public square. Dean should be thankful for that.

The idea that someone can arbitrarily label what I say as offensive and therefore condemn or even imprison me for my words to me is intrinsically the epitome of hate speech itself because it seeks to harm be simple because they do not like what I say. If that is not the definition of hate , then I do not know what is.

buckeyeminuteman | April 23, 2017 at 8:33 am

Byyyaaaaahhhhhwwwww!

and to think that he almost made a serious attempt to run for the office of President… He’d have never made it out of the oval office!

There’s nothing wrong (illegal, unethical, immoral, illegal …) with “hate speech”.

For that matter, there’s nothing wrong with hate. We have agriculture because some ten thousand years ago some people hated being perpetually on the verge of starvation. We have Western civilization because some twenty five centuries ago the citizens of the Greek states of Sparta and Athens hated the idea of being overrun by Persians. We have vaccines for yellow fever because a century ago some financiers hated being unable to recruit laborers for construction projects in the tropics fast enough to replace the ones who dropped dead.

Hate is a wonderful thing; one of the most constructive motivators known. There are others, but hate is the one which really gets people out of bed and inspires them to attempt prodigies.

MaggotAtBroadAndWall | April 23, 2017 at 11:36 am

The term “hate speech” is just another political phrase invented by Democrats to manipulate the passions of their fanatically emotional base. They have many of these words/phrases in the toolbox.

All they have to do is utter “NRA”, “Koch Brothers”, “Citizens United”, “voter ID”, “climate change”, “Trump” or “Russia” and their base is conditioned to salivate more than Pavlov’s dog did when it heard the bell ring signaling a treat was coming.

Howard Dean had better hope “stupid speech” is never banned.

    Gremlin1974 in reply to dcnrmn. | April 23, 2017 at 4:11 pm

    Actually my first thought would be to “outlaw” the practice of politicians lying and/or knowingly making false statements.

Char Char Binks | April 24, 2017 at 6:18 pm

What if I say I hate Howard Dean? Is that a hate crime?

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