Former Vermont Governor and failed 2004 Democratic Presidential candidate Howard Dean recently decided to jump into the UC-Berkeley controversy surrounding Ann Coulter. He offered his thoughts on Twitter last Thursday, making the entire nation forever grateful that he was not elected President.
Hate speech is not protected by the first amendment. https://t.co/DOct3xcLoY
— Howard Dean (@GovHowardDean) April 21, 2017
This should concern every American who claims to care about the First Amendment. The problem with “hate speech” is not whether it is a good thing or a bad thing, but who gets to decide on the definition of “hate.” Are we going to have the DOJ demanding the sermons of local pastors? If you think that is far-fetched, in 2014 the city of Houston demanded that five preachers turn over their sermon notes on homosexuality, because they might have violated an equal rights ordinance.
To the everyone’s amazement, Dean doubled down after he was called out on this First Amendment illiteracy by citing Chaplinsky v. New Hampshire.
Why don't you read the 1942 Chaplinsky decision from Scotus. https://t.co/1nGuRlrAOQ
— Howard Dean (@GovHowardDean) April 22, 2017
This is NOT protected speech under the first amendment. Check Chaplinsky V New Hampshire SCOTUS 1942. https://t.co/wr3rMaRnAB
— Howard Dean (@GovHowardDean) April 23, 2017
The 1942 Chaplinsky case was the notable case in which the Supreme Court unanimously held that “fighting words” are not protected by the First Amendment. If Dean wants to say that Coulter is inciting violence with “fighting words” then anybody who has ever said anything controversial, provocative, or inflammatory was engaging in unprotected speech. The Court’s definition of “fighting words” does not conform to Dean’s interpretation. The Court ruled for better or for worse:
“… [appellant] addressed to the complainant, that is to say, ‘You are a God damned racketeer’ and ‘a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists,’ the same being offensive, derisive and annoying words and names.
“damned racketeer” and “damned Fascist” are epithets likely to provoke the average person to retaliation, and thereby cause a breach of the peace.
In other words, saying something directly to somebody’s face is different from saying it on Twitter, TV, or in a speech on campus. The Court has ruled accordingly in cases since 1942, that Dean conveniently either ignores or misinterprets.
Ironically, if “Fascist” was considered to be the original fighting word, does that mean that everybody the self-proclaimed anti-fascists have labeled a fascist get to freely assault the “anti-fascists” without fear of legal repercussions?
Regardless, in 1977 in National Socialist Party of America v. Village of Skokie the Court ruled that Illinois had violated the First Amendment rights of the Nazi Party to hold a march in the predominately Jewish village of Skokie. The mayor had argued that such a march was likely to incite violence, but the Court ruled that was insufficient to deny the Nazis the right to hold their march.
In an 8-1 decision in 2011 the Court ruled in Snyder v. Phelps that the First Amendment protects the right to picket a military funeral. The Snyder family had said that the Westboro Baptist Church had intentionally inflicted emotional distress in the wake of the death of Lance Corporal Matthew Snyder, who was killed in a non-combat related incident in Iraq.
To everybody’s astonishment Dean, proceeded to triple down. In an interview with MSNBC he said the following
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 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.
Dean butchered the Court’s ruling in Snyder and also cited Virginia v. Black, which he did not exactly interpret correctly either. Regardless, Dean has staked his entire case around Chaplinsky. Dean was referring to Federal Communications Commission v. Pacifica Foundation when he was talking about “words that you cannot use on television.” He probably means that if someone, say Ann Coulter, was to call somebody one of the “filthy words” (see link), then that would constitute “fighting words,” which is not what the Court ruled.
Using Dean’s own logic, Mitt Romney was well within his rights to punch Barack Obama in the face in a 2012 debate after it was revealed that Obama had referred to Romney as a “bull******.”
Dean finally seemed to acknowledge that offensive speech “should not be banned.” He still maintains that there is no right to incite violence, but he has developed an extremely broad definition of “incite.”
Yes, offensive speech should not be banned. But incitement to violence is not protected and that has been litigated multiple times. https://t.co/vJkgt8VylD
— Howard Dean (@GovHowardDean) April 24, 2017
Dean’s logic not only excuses violence among supposed adults, it also means that the First Amendment does not apply to you if somebody does not like what you have to say. If Dean had his way, anybody could shut down anybody they disagree with by threatening by citing Chaplinsky.