Howard Dean: The Constitution Does Not Protect Hate Speech

We have been discussing how the left has fallen out of love with free speech and how free speech is now being treated not as the defining right of liberty but the very threat to liberty.  Indeed, the most existential threats to free speech around the world are now coming from the left, which has embraced speech codes and the criminalization of speech with a passion.  There are exceptions like Bernie Sanders who recently declared that Ann Coulter should be allowed to speak at Berkeley — a position that I obviously have shared on this blog.   However, that principled position was countered by the most common response of former Vermont Gov. Howard Dean who declared that hate speech is not protected by the Constitution.  He is obviously wrong but his inclination — even eagerness — to limit free speech is now a mainstream idea among liberals who once were the champions of this defining right.  Notably, Dean has shown increasing intolerance in other areas.  He recently denounced a member of Congress after she simply asked for evidence to support the culpability of the Syrian regime in the recent chemical attack.

Dean dismissed free speech concerns over the increasing control of the mob on our campus, particularly at Berkeley where conservative speakers like Coulter have been effectively barred.  Dean offered the sweeping rationale that anything deemed “hate speech” was immediately outside of the first amendment. That is the same position of student editors at Wellesley in a chilling indication of the rise of a new generation of censors in America.  They appear to have their leader in Howard Dean.

While it would be a convenient thing if, as Dean tweeted on April 20, “Hate speech is not protected by the First Amendment,” we still have protections for unpopular speech in this case and have not handed over the regulation of speech to those who would designate hateful and permissible speech. However, Dean is right in one sense. We could be heading in that direction.

The first amendment does not distinguish between types of speech: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

While the court has distinguished “fight words,” criminal threats and other narrow categories, it does not bestow the government the open right to strip protection of speech because it has deemed “hateful.”  Indeed, in Brandenburg v. Ohio (a 1969 case that we can discussed much in terms of “violent speech”), the Court struck down an Ohio law prohibiting public speech that was deemed as promoting illegal conduct. It supported the right of the KKK to speak even though it is a hateful organization.  Likewise, in R.A.V. v. City of St. Paul in 2011, it struck down a ban on any symbol that “arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.” Most recently, in Snyder v. Phelps in 2011, the Court said that the hateful protests of Westboro Baptist Church were protected.

As I have stated before, these cases still have dangerous ambiguities on the edges for some types of “violent speech” but they clearly reject Dean’s view of the first amendment.  He can however take solace that his own speech is protected whether it is a yipe or a yell.  However, some claims (whether of political success or constitutional demise) are facially premature.

91 thoughts on “Howard Dean: The Constitution Does Not Protect Hate Speech

  1. The only speech in need of protection by the First Amendment is unpopular speech… It exists only to prevent the censorship of the offensive, the vile and the subversive communication of the minority as defined by the majority.

    There is no need to protect popular speech or ideas from censorship.

    • Especially for H. Dean. Frankly, Heretic, to my ear, Anne Coulter is less hateful and less unpopular than Black Lives Matter. But somehow she’s the one whose speech is under threat, at least at Berkeley. On the other hand, she can go on Fox News pretty much as often as she wants.

      If Berkeley only allows speech that is in tune with their institutional values, then their interest in free speech is equivalent to that of North Korea.

      Even if we agree with the notion that “hate speech” (or “fighting words” in first amendment parlance) should not be protected, thanks to the hysterical ravings of campus left, hate speech can be almost anything they disagree with.

      I tend to find Anne Coulter shrill and disingenuous. But to say she engages in hate speech is ridiculous.

    • mespo, I’ve been following FIRE on Twitter for ~7 years now, and promote it often. I’ve even donated money! They have become increasingly important over the past decade or so.

  2. Maybe this is not too Off Topic for this thread, but I just heard on the radio … that the mayor of Berkeley, Jesse Arrequin, is a member of By Any Means Necessary. In my view an idiot group, if anyone has caught the likes of Yvette Felarca, also a member.

  3. @Brooklin Bridge, April 24, 2017 at 8:53 am
    “Amorphous, unspecified, group-think like use of the term, ‘the left’ in this post. Using such grossly generalized labels renders any reasoned analysis almost impossible.”

    Indeed. If a leading member of the Democrat (vs Republican) Wing of the Corporatist War Party is a “leftist” who seeks to subvert the First Amendment, then what is Donald Trump, a super-uber leftist?

    Trump’s CIA Director Pompeo, Targeting WikiLeaks, Explicitly Threatens Speech and Press Freedom
    “Trump’s CIA Director stood up in public and explicitly threatened to target free speech rights and press freedoms, and it was almost impossible to find even a single U.S. mainstream journalist expressing objections or alarm, because the targets Pompeo chose in this instance are ones they dislike – much the way that many are willing to overlook or even sanction free speech repression if the targeted ideas or speakers are sufficiently unpopular.”
    https://theintercept.com/2017/04/14/trumps-cia-director-pompeo-targeting-wikileaks-explicitly-threatens-speech-and-press-freedoms/

    See also:
    “The candidate [Trump] dreams of expanding libel lawsuits. Donald Trump wants to ‘open up’ American libel laws to make it easier for politicians such as himself to sue newspapers that write things of which he disapproves. The problem faced by Trump — and by his pal Harry Reid, who wants to use federal law to censor political speech — is that the First Amendment severely limits what men who dream of shutting down newspapers (and little magazines) can actually do.”
    Read more at: http://www.nationalreview.com/article/432037/donald-trump-libel-it-not-if-its-true

  4. How interesting. So all of these hard Leftists who want to criminalize hate speech see no conflict with their treatment of Vietnam Vets during the Flower Power era? Or their harassment of conservatives, such as conservative students?

    And who defines hate speech? The government? Will criticism of the President be deemed hate speech? (You know they would be pushing for that if Hillary had won.) What about criticism of bad teachers? In Europe, hate speech laws have muffled citizens from complaining about the skyrocketing crime and aggression towards women from refugees.

    So let’s examine how hate speech laws have played out in Europe. Because, you know what Einsteins said about only a fool repeats an experiment expecting a different result.

    https://www.thenewamerican.com/world-news/europe/item/18116-new-swedish-law-criminalizes-anti-immigration-internet-speech

    “You’re free in Sweden to be critical of immigration, those in power, or people identifying as “LBGT” — at least within the confines of your mind. But dare express those views, even on the Internet, and you can now be more easily prosecuted under a new law taking full effect after Christmas.

    We recently learned about how anti-immigration Internet commenters in Sweden were tracked down and persecuted. As journalist Pamela Geller wrote:

    One of Sweden’s biggest newspapers, Expressen, used criminal hackers to break into Disqus and get the email addresses and identities of commenters online, and to reveal the persons behind the nicknames or anonymous user IDs. The newspaper sent a reporter and a cameraman to one person’s home and asked them about things they had written on different websites. Expressen published the names and photos of some people, which led to at least one person losing his job.”

    But Sweden’s new law adds another layer of hate-speech prohibition to the social ostracism. As Fria Tider (Free Times) reported (translated electronically from Swedish and then edited for grammar and word usage) in a piece entitled “New Law Makes it Easier to Prosecute Those Who Offend Immigrants or Those in Power,” “The crime of ‘insult’ will be prosecuted — but only for giving offense to immigrants, LGBTQ persons or authorities … [under a] common insult to the public prosecution.” The law has been pushed by Swedish parliamentarian Andreas Norlén, who said, during what Fria Tider described as “an unchallenged debate on the issue in parliament,” “I do not think it takes very many prosecutions before a signal is transmitted in the community that the Internet is not a lawless country — the sheriff is back in town.”

    What does this mean? Journalist Ingrid Carlqvist explains that you become a pariah, stating, “If they point at you and say you are a racist, then you will have no job, no career, you might lose your family. You will have no future.”

    This is despite the fact, say critics, that wide-scale Third World immigration is threatening Sweden’s future. As CBN also reported:

    Sweden’s immigration model is failing miserably … test scores in Swedish schools are plummeting … [and] crime in some areas has skyrocketed. Immigrants burned the Stockholm suburb of Husby for over a week last year.

    Many Jews now live in fear of attacks by Muslim immigrants and are leaving.

    Amun Abdullahi, a journalist for Swedish radio, left last year and returned to her native Somalia after she was attacked in the Swedish media over her news report about radical Muslim immigrants in Sweden.

    She told Swedish television that Mogadishu was safer than immigrant areas in Stockholm.

    Oh, look, anti hate speech has now enabled radical extremist Muslim refugees to chase Jews out of Europe.

  5. http://www.legal-project.org/issues/european-hate-speech-laws

    Here is a brief summary of hate speech laws in Europe. For example, Bridget Bardot was fined 15,000 Euros for criticizing the ritual slaughter of sheep for a Muslim feast. This was the fifth time she was fined for criticizing Islamic practices. A couple of Christien hoteliers were arrested and charged merely for calling Mohammad a “warlord.” Which he was. He led wars which he profited from and gained land. That literally made him a warlord.

    And here we have Germany cracking down on free speech. Because when you import thousands upon thousands of refugees in a random cross section of the population of an extremist regime, excluding only the Christians whom they persecute, then of course the only thing you can do is shut your countrymen up for complaining about the inevitable violence: http://europe.newsweek.com/germany-under-pressure-crack-down-anti-refugee-hate-speech-335268?rx=us

    And this brings me to what troubles me about the climate here in the US. For anyone even remotely aware of their surroundings, any comment about restricting speech or creating blasphemy laws should raise your hackles. It should be immediately met with vigorous, sensible opposition. And yet, enough politicians feel safe and emboldened that they are fighting the good fight, that they have made such hate speech laws a prominent issue. You will recall that Hillary Clinton openly championed blasphemy laws here in the US- here in the US where pilgrims came because their views on religion at home were deemed blasphemous and they wanted to the freedom to worship and live as they chose, freely criticizing the Anglican Church. It deeply troubles and disturbs me that enough people support this destructive movement that it actually has a following.

    We’ve all seen that those hit hardest in Europe are the Jews, chased out and unable even to complain about it. And the rape victims, and the other women harassed and unable to complain about it. And the victims of crime who are unable to complain about it.

    Such laws protect the bullies and silence criticism of bad behavior.

    I’m sorry, but not all cultures are equal in my view. There is much to love and admire around the world, but we women are treated better here than most of the world, and I will allow nothing to silence my voice. If I like something, I’ll say it, and if I don’t, especially when I think my sisters are being mistreated, then I will speak out. The sad fact remains that women are not treated well in many places in the world. Sometimes that is due to culture, and sometimes religion. Here in the US, we have the right to voice whatever opinions we want, and are free to criticize culture, religion, hair cut, social climbing, attention grabbing, Oscars fashion mishaps, traffic, our government, the EPA applying wetland status to parking lots, and our President.

  6. So, according to the despicable Left, it is OK for Nazis to march in front of Holocaust survivors in Skokie, but it is not OK for Ann Coulter to speak at Berkeley? There are reports that the Mayor of Berkeley has a history of requiring the police to stand down when a conservative attempts to exercise the right of free speech. Why should anyone have to fear for his/her safety when invited to speak on campus? Let us hope Ann Coulter has her own security team if she decides to show up! What a shame that the left-wing liberals have become a danger to the American way of life!

    • Nazis are broadly unappealing social exotica and not seen as antagonists by the ACLU board for that reason. Anti-abortion protesters are the real enemy, which is why a large slice of the ACLU budget is devoted to lawfare operations contra them and the court system can abuse these dissenters all it cares to. It was nearly a generation ago that Nat Hentoff was writing exposes of the California ACLU and their indifference to the use of chuka sticks on anti-abortion protesters.

  7. Hate speech’s connotative meaning is any communicated message that the intolerant left takes with even the slightest issue.

  8. I’m trying to figure out what the common mechanisms are for authoritarianism. For example: it wasn’t that long ago that red baiting was a practice of the right. People were fired for being “commies”, they were forced to name “co-conspirators” who were also them summarily fired. The FBI had an enormous database on “commies”. People on the left were the targets.

    Fast forward and the new red baiting is the practice of the left. While it is more difficult to fire “commies” (now also called fascists), it is certainly tried, speech is denied, beatings for “belief unapproved” are considered perfectly normal and as another poster pointed out, Maddow is #1 “news” for engaging in absolutely insane red baiting.

    What is common to these events? I would say the needs of the oligarchy is what drives attacks on free speech. If they need to control how people react to war, the economy, their own bad behavior, they need to understand who constitutes the biggest threat to their behavior. Whoever that group is at a certain moment in history must be taken down. This is done by several methods. 1. It is necessary to create cohesion among the abusing group that they are superior. Once this mindset is in place, repulsive and abusive actions are justified against the lesser, inferior group. This must be accomplished using a lot of propaganda, false information and positive stroking of the “superior” group. They must be made to feel not only that they can abuse the “inferior” group, but that it is a near religious calling to do so. Mission accomplished!

    2. Meanwhile, it is necessary to vilify the “inferior” group. Especially people who are willing to speak truth to/about power. Those people are the most dangerous group in any authoritarian society. They absolutely must be silenced because they pose a threat of exposing the ruling elites themselves. In service to that end, the oligarchy smears truth tellers with everything they have. They will also need to propagandize and silence people who aren’t with the program, even if such people aren’t actively engaged in truth telling. They are not being obedient servants and this just cannot stand!

    There is a lot going on in this dynamic. I’m not surprised about Dean because, as others point out, he is part of the ruling oligarchy. He would therefore be on board with silencing those impudent enough to question his/their authoritii!

    • “I’m trying to figure out what the common mechanisms are for authoritarianism.”

      ******************

      Start with “The Origins of Totalitarianism” and “The Human Condition,” both by Hannah Arendt.

  9. Vermont should be put on probation and if it produces another Howard Dean the it’s Statehood should be sold to another State (Northern California ?) . That would go along towards reducing the deficit while producing virtually no change in New England after New Hampshire absorbs Vermont.

  10. @Jill, April 24, 2017 at 5:41 pm
    “I’m trying to figure out what the common mechanisms are for authoritarianism.”

    Do you mean how authoritarians operate (their mechanisms) or do you mean their psychogenesis, i.e., how they got to be people whose guiding principle (to one degree or another) is the antithesis of the libertarian principle of non-aggression?

    Or do you mean something else?.

    • Ken,

      I mean all of those, but more importantly, I was trying to see what is in common when people go totalitarian. One commonality I could find was the need of the oligarchy to cover it’s illegal and unethical, earth and human destroying actions. The seem to choose methods of helping people get in touch with their inner totalitarian as a method of distraction and also of having ordinary people aid and abet their crimes.

      They work within the current situation. Thus earlier in US history, red baiting occurred on the right. It was most useful to “nurture” and support it there. Today, red baiting is on the left. It has been most useful to nurture and support it there.

      Part of it seems to be demographics. There are simply more lefties than right wingers at this time. They have been neutralized as far as criticism of the oligarchy. Further, they are most excellent slaves in its service. But the right wing performed this same functions when they were called upon to do so. It’s not a right/left issue. It’s an oligarchy on a mission, using techniques to get what they want–slaves.

      Unless we are willing to stop being their slaves, it’s not going to end, ever.

  11. “Fascism is anti-intellectual struggle to return social patterns to the dominant position”*. Here we have the fascist antifascist (and their apologists like Howard Dean) trying to bend the rules cause Hillary lost, they are temporarily out of federal executive power, and they have absolutely no (intellectual) case. Speech might add to intellectual debate, and they might lose. Of 36000 college and universities who is trying behind the scenes to censor part 2 on an immigration debate by Ann Coulter? – the Administration (powers that be) of Berkeley? How about no masks on college campuses to shield potential lawbreakers? What a novel idea.
    * Robert M Pirsig who died age 88 of ” Zen and the Art of Motorcycle Maintenance ” authorship fame

  12. I just hate speeches by Howard Dean. He has no constitutional standing. He needs to be quiet. Perhaps get a job in a funeral home. Death to America he says.

    • I am no fan of Coulter. But it is a sad day when Berkeley, the home of the Free Speech Movement, cannot or will not allow a political speech to take place.

      I don’t agree with much of what Coulter says. But I say let her bring it, let her put forth her best arguments.

      The more she is exposed in public the easier it is to take down her ideas. Let her speak.

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