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.