Howard Dean’s First Amendment

By Jim Geraghty

Monday, April 24, 2017

On MSNBC yesterday, former Vermont Governor and DNC Chair Howard Dean elaborated on his argument that Ann Coulter’s upcoming speech at Berkeley does not have to occur because “hate speech” is not protected by the First Amendment:

Okay, several things to think about. One, the United States has the most far-reaching protections on speech of any country in the world. Two, it’s not absolute. Three, there are three Supreme Court cases you need to know about. One, the most recent, a John Roberts opinion, the Phelps people, that church out in Kansas, had a right to picket horrible offensive signs at military funerals. Well, two, in 2002, the Supreme Court said cross burning was illegal because it could incite violence. And three, Chaplinsky, the Chaplinsky case in 1942 said that speech was not permitted if it included fighting words that were likely to incite violence.

This is not a clear-cut carrying on the way the Right does. The Right loves to be able to say anything they like, no matter how offensive it is. Well, Ann Coulter has used words that you cannot use on television to describe Jews, blacks, gays, Muslims immigrants, and Hispanics. I think that there’s a case to be made that that invokes the Chaplinsky decision, which is “fighting words,” likely to cause violence. I think Berkeley is within its rights to make the decision that it puts their campus in danger if they have her there. I’ll be the first to admit it’s a close call.

Actually, it’s not a close call; Dean is making the wrong call under the Constitution. Dean’s entire answer piles wrong argument atop wrong argument until he completes a Dagwood sandwich of wrong.

Dean cites three court cases, and he mischaracterizes the decisions in all of them. The first case he references, Snyder v. Phelps, was an 8 to 1 decision in favor of the Westboro Baptist Church’s freedom to chant the horrible slogans and hold up the horrible banners it favors at a military funeral. If the church is free to protest at a military funeral, it makes no sense to argue that Ann Coulter is not free to give a speech at Berkeley. Dean is perhaps unknowingly citing a case that argues the reverse of his position.

The second case Dean cites, Virginia v. Black, struck down a state law that deemed cross-burning a prima facie attempt at intimidation. The decision was complicated, with multiple justices concurring in part and dissenting in part, but its upshot was that if prosecutors wanted to charge someone with a crime for burning a cross, they had to prove that the cross-burner intended his action as a threat.

“Criminal threats”, “intimidation” and criminal harassment are already crimes on the books in many states. If Ann Coulter explicitly threatens an individual in her speech, she can be charged with a crime for that. But whatever her flaws, Coulter is unlikely to make an explicit incitement to violence in a speech at Berkeley.

The third case Dean cites, Chaplinsky v. New Hampshire, has come up a bit more frequently as of late. Eugene Volokh points out that while the Chaplinsky precedent hasn’t yet been struck down, subsequent decisions have drastically narrowed its definition of “fighting words.” In 1971, the court ruled that a vulgar phrase on a jacket didn’t fall within said definition because it was unlikely that any “individual actually or likely to be present could reasonably have regarded the words” to be “a direct personal insult.” In R.A.V. v. City of St. Paul, the Court struck down a hate-crime statute, decreeing that the state can restrict speech to a certain “time, place, or manner,” but only if those restrictions were “justified without reference to the content of the regulated speech.” (I.e., the government can ban flag-burning by, say, banning all outdoor fires in certain areas, but not explicitly because it dishonors the U.S. flag.)

Without knowing what Coulter would say in her speech, Dean suggests that it would contain “fighting words,” given her history of using “words you can’t say on television” to describe minorities. Given the “words you can’t say on television” have no bearing on the constitutionality of an (as-yet-undelivered) speech at Berkeley, the one-time front-runner for the Democratic presidential nomination seems to be insisting that just by being offensive, Coulter’s words incite violence and must be restricted and banned. It is fair to ask Dean and his ilk why they are so focused on restricting and punishing speech that supposedly “incites” violence and much less focused on punishing those who actually commit violent acts.

If Dean’s real desire is to ban speech that he doesn’t like, he should just say so.