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

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

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.

Hate speech is not protected by the first amendment. https://t.co/DOct3xcLoY

— Howard Dean (@GovHowardDean) April 21, 2017

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

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

Can you help me out and explain what things you would jail people for saying?
I assume nothing on the Democrat platform.

— Kurt Schlichter (@KurtSchlichter) April 21, 2017

Go sell civic ignorance someplace else. We're all stocked up here.https://t.co/DBhMmdaGM8

— CeaseAndDesistHat (@Popehat) April 21, 2017

Heck, even PolitiFact managed to get this one right.

This tweet is False. Our report: https://t.co/tNOeDXphmY https://t.co/mieSRXAw7N

— PolitiFact (@PolitiFact) April 21, 2017

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.

Why don't you read the 1942 Chaplinsky decision from Scotus. https://t.co/1nGuRlrAOQ

— Howard Dean (@GovHowardDean) April 22, 2017

Again, the response was fast and furious.

For God’s sake do some reading.

— Charles C. W. Cooke (@charlescwcooke) April 22, 2017

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

That decision is about "fighting words" directed by one individual to another, specific, individual. You may want to stick to medicine.

— By the numbers ????? (@TheRealFixNow) April 22, 2017

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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