Constitutional Law, Free Speech, Politics, Society

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.

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

  1. It amazes me that such a constitutionally ignorant man could advance so far in government but then I remembered this guy. Constitutional ignorance knows no party:

  2. Speaking of Assange, What i wonder is this. Suppose a person, who lives in America, spied on Russians, and leaked some of their government’s computer files to Wikileaks. Would the Russians have a cause of action to extradite him to Russia to stand trial???

    Because I am having a problem understanding how a citizen of another country is subject to our laws on spying.

    Squeeky Fromm
    Girl Reporter

  3. The Volokh Conspiracy Opinion

    Prosecuting Assange under Espionage Act would set dangerous precedent

    By Jonathan H. Adler April 24 at 8:13 AM

    https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/04/24/prosecuting-assange-under-espionage-act-would-set-dangerous-precedent/

    “It’s understandable why the federal government is upset with Assange and others who obtain and disseminate national security information. Such concerns are best addressed by undertaking more serious efforts to prevent such information from being leaked in the first place, not by threatening prosecution of those who publicize the information once it has been leaked. The former may help keep our nation safe. The latter is a threat to our liberties.”

  4. Sir, please consult William Donohue’s work:

    https://www.amazon.com/Politics-American-Civil-Liberties-Union/dp/0878559833

    Donohuse’s conclusion: the ACLU has been from its inception a political organization which made use of litigation rather than electioneering. “Civil liberties” was a hook, never the primary purpose of the organization. Alan Dershowitz and Nat Hentoff offered a different take, that the ACLU was once an authentic advocate but was by 1985 or thereabouts corrupted and under the influence of political leftists who had no interest in civil liberties. As long ago as 1979, Hentoff noted in his column that he was at The Village Voice working amongst people who had no use for free speech and were trying to force a ‘politically correct’ (the term was not yet jejune) line on the Voice in contravention of the editorial policy the publication had followed for the previous 25 years.

    Here’s a suggestion: men like Dershowitz and Hentoff have always been atypical among soi-disant civil libertarians. The ‘civil liberties’ shtick was a set of tactics made use of to wage war on cultural adversaries (e.g. Catholics resisting commercial traffic in smut). The battlespace has changed and the identity of the forces has changed, so it’s now no longer utile. Ergo, ‘free speech’ will be re-imagined to mean something quite different. See the evolution of anti-discrimination law from 1946 to the present and you’ll see how these shell games are played.

  5. Dean, still bitter after all these years about his failed presidential bid. No one sane – Left or Right – cares about his pro censorship views. Dude’s just trying to stay in the newz.

    1. Until now the advocates for European style hate speech laws have mostly been found in academia (i.e. Professor Tsesis). Dean is the first, but will not be the last mainstream political figure to advocate for such laws. It’s coming. Mark your calendars. Look for Elizabeth Warren or some other liberal politician to adopt such positions in the next cycle.

  6. At least when this idiot is spouting lies he isn’t performing late term abortions.

  7. How did a goof like Dean ever get admitted to a First World medical school? It says something that he eventually abandoned his medical practice and took up politics. Both the Pauls continued to practice intermittently even while serving in public office.

    1. Dean was a part time politician, whose offices included Lt. Governor of Vermont. The Governor of Vermont abruptly died in 1991, so Dean found himself willy nilly with a f/t political office. The Pauls are legislators, not executives. They could sit in the back of the House or Senate chamber reading newspapers if they preferred, something a politician in an executive position cannot do, so it was easier for them to keep their hand in. Rand Paul in particular is a specialist who sees referred patients episodically, not a primary-care doctor.

      Dean and his wife were suburban GPs in Burlington and his wife has continued to practice. They attended the same medical school and both attended Ivy League universities. No one’s identified a notable malpractice suit against either.

      The man’s a jackwagon, not a quack.

  8. The constitution is not a magic wand used to shield anyone from anything. At any moment, 5 people in black robes have the power to say hate speech is not protected and goodbye 1st amendment. There is a worldview that people must have that gives the constitution real power. Without that worldview, the constitution is merely a suggestion for good governance.

  9. 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. Note that Sanders is declared an exception to the broad brushed stroke that the left is now against free speech. Sanders is no exception, no more than the left, as a block, is against free speech. He is simply not a neoliberal nor a neoconcervative as is Howard Dean and Hillary Clinton.

    Moreover, if one must use such generalizations, even the most basic common sense dictates you will probably have to lump everyone together in what ever thesis concoction you propose, in this case being against free speech. To suggest the left is suddenly against free speech with no qualification implies the right is for it, which – as a generalization – is as absurd on the face of it. What do you mean by the left? What do you mean by free speech? Does it include only universities where far right wing speakers are being wrongly shut out? What about the free speech of scientists who are being silenced in every way possible by the current government (I’ll avoid the absurd claim this government or a single individual in it represents the whole of the right). What about the free speech of whistle blowers that bring the corruption of people like Hillary Clinton to our attention? Does that not count as “free speech”?

    Of course there is one outcome one can always count on resulting from such rank generalization; namely your own personal contribution to inflaming both groups against each other and making common dialog that much more difficult.

    1. Actually, there are no longer distinct subfractions of the left of any significance. Marxism and psychoanalysis no longer interest any discernable corps other than tenure-grubbing academic humanists. Soi-disant purveyors of Catholic social teaching friendly to the Democratic Party are a claque of bored careerists conjoined to an inconsequential coterie of Vichy Catholic journalists; Vichy evangelicals are blatant aspirants to the roles of bully’s little pal and professional concern-troll; they’re not very numerous and no one familiar with them respects them. A generation ago, you had conflicts between opinion journalists at home with the labor wing of the Democratic Party on the one hand and the red haze sectaries on the other, with a collection of supercilious gamesmen sandwiched in between. Now you just have the gamesmen and the sectaries.

      The left is uniform as to it’s dispositions. It has within it distinct roles, such as that which you see between journalists (who are hardly distinct from press agents), lawfare operatives, sorosphere patronage distributors, and rabble like “Black Lives Matter” and the pussy-hats.

  10. My recollection is that the noted Islamic scholar Howard Dean once informed us that Islamic Radicals were not really Muslim.

    Perhaps it is not so surprising that the noted constitutional scholar Howard Dean would inform us that “anything deemed “hate speech” was immediately outside of the first amendment.”

    We are so fortunate that such a gift individual has chosen a life of public service and is willing to guide us on such important matters. .

  11. Free speech is what the Supreme Court says it is this week. That being said, nobody has really taken Dean seriously since he joined the ‘Scream Queens.’

    2. Preferable that Coulter’s brand of fascism rots on the shelf rather that be burned.

  13. There is a group, a bipartisan group of people who don’t like it when people say things with which they disagree. The reRelublicans legislate against speech they don’t like…they want to criminalize it or gag it. Some of the things they don’t like: telling women about their reproductive options or telling people about climate change…excluding such discussion from governmental reports. The so called left wing group wants to ban the use of certain words that some claim offend them…it’s hard to make even a partial list because that universe changes a lot. Some left win nuts want to stop certain people from speaking at universities.

    I’m for free speech. No ifs, ands or buts.

    1. Some of the things they don’t like: telling women about their reproductive options or telling people about climate change…

      Another feature of the left is that they cannot stop lying. No one has ‘legislated against bla bla bla’. The legislation in question regarding abortion has concerned counseling adolescents and requiring disclosure. Lawfare artists succeed in having laws requiring disclosure declared ‘unConstituional’ As for ‘climate change’, you’re trafficking in fiction.

      Nat Hentoff and George McGovern were decent men. Succeeding generations of leftists are not, and lousy cretins are attracted to the left because like seeks like.

      1. It isn’t just a liberal trend. . Check out the forbidden words and concepts that the Republicans forbid discussions of: birth control, abortion and climate change just to name a few.

        1. While these may certainly be issues that “Republicans” are in disagreement on with “Democrats”, I’m not aware that they have sought to silence opposition and consider the matter settled. Why would they, the “law” does not favor their position. If anything, they tend to want to keep the dialog open with the goal of moving society to their side of the argument.

  14. The Constitution does indeed protect hate speech and I am astounded that the issue is even the subject of debate. I had thought that the free speech battles of the 60s settled these absurd disputes once and for all. Yet here we are. Perhaps it is true that life consists largely of relitigating forgotten truths.

    1. Good point. Even having to ask the question why does one individual wearing black get to dictate to an entire nation when his or her jurisdiction is clearly defined and marked.

      I reckon the luxury of having 80 percent of the world’s lawyers and allowing them to also be our political leadership, clearly a conflict of interest, is reaching the point of …as you said…absurdity.

      Just to cite a quick example with a reminder of the days of eighty or so years ago.

      I was reading from another source of absurdity as the media asked, Will the Congress do this or that…

      What happened to ….when the hell were mere employees allwoed to take 120 days a year vacation and major middle finger the employers?

      Not a case of will they . it’s a case of the damn well better. Lots of mini Noivember 8ths coming up.

    2. As long as there are individuals permitted to impose their will on others, we will need to continually fight politicians, agencies, governments, and organizations who endeavor to stifle our freedom and liberty.

      Forestallment of these encroachments is the best we can hope for. There will never be an everlasting victory.

      1. I recently browsed in the ‘teacher supplies’ aisle at a local store and saw that they still sell packs of stickers with the gold and red stars we all used to love getting at the top of our papers –and now they’ve added a new one to the collection — it’s a roll of shiny oval-shaped stickers with the words ‘HATE SPEECH’ on them. Will come in handy for teachers who live in Howard Dean’s America 😉

    3. “The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.” – Thomas Jefferson
      Warning: this quote triggers democrats.

      1. If that were true mespo then a simple reminder would be all that is necessary. The true doom of Man is not caring to know.

  15. Don’t worry, sweet, tolerant liberals, you will have members of the mainstream left (as Dean does here) begin to propose European style hate speech laws in an election cycle or two.

    2. The hate laws are already here in America. They are only selectively enforced, so as not to wake up the frog in the pot.
      Enjoy your last vestige of the Bill of Rights….

  16. Is burning a cross in someone’s yard protected symbolic speech?

        1. I have a feeling Mr. Benson will be just fine with criminalizing speech he does not like.

          All done in the name of tolerance and enlightenment, of course.

    2. About the same as flying a confederate flag or wearing a BLM T Shirt or Money as Free Speech or the pathetic performances of the Hollyweeds or the snowflakes symbols of ‘what?”

      Where do you want to draw the line between ‘acceptable’ and non exzceptable The Constitutional Standard was found in the phrase ‘pursuit of happiness.’ If your drummer and bass player interfere with my sleep while I’m in my own home that’s enoough for me AS IS when your rich NY or LA friends stick their nose in to my local precinct in Arizona or Georgia…then you crossed the line.

      But tha’t what you expect from Your Mobocracy..

    3. I think the SCOTUS decision (in which Clarence Thomas cast the deciding vote) said you can burn a cross on private property where authorized as long as the burning cross is not visible to the general public-which might feel intimidated. It’s easy to look up, but I have to walk the dogs.

    4. ‘symbolic speech’ does not exist.

      Penal law makes setting fires on someone else’s property a crime as well as a tort. In New York, you have laws contra harassment, criminal tampering, criminal mischief, and arson which might be contravened by doing that. This isn’t that esoteric a question.

    5. Let’s stop playing the silly game. I’m sure you understand that trespassing on someone’s property and then committing arson is not freedom of speech. Those are crimes. However, a KKK member (as reprehensible and disgusting as I think they are), has the right to make disparaging remarks about a group of people due to race, religion, sex, ethnicity. After all, who decides if something is “hate speech” or an unpopular opinion? Restricting the KKK’s speech will result in restrictions on all of our speech. If no one said anything unpopular, upsetting, hateful, reprehensible, shocking, etc., then we wouldn’t need the Constitutional right to free speech.

  17. It’s amazing how people don’t learn from history even in cases like this where the historical lessons are crystal clear. Howard Dean wouldn’t know a slippery slope if it fell from the sky & landed on him. In some ways people like Dean are scarier than terrorists. Nat Hentoff must be turning in his grave.

    1. Yes, Dave… you are so right… it is indeed Un-American idiocy to criminalize free speech… or ‘the right of the people peaceably to assemble, and to petition the Government for a redress of grievances’… for that matter…

      Hmmm…
      ______________

      Republican lawmakers introduce bills to curb protesting in at least 18 states…

      https://www.washingtonpost.com/news/wonk/wp/2017/02/24/republican-lawmakers-introduce-bills-to-curb-protesting-in-at-least-17-states/?utm_term=.0d4444c4a876

      Since the election of President Trump, Republican lawmakers in at least 18 states have introduced or voted on legislation to curb mass protests in what civil liberties experts are calling “an attack on protest rights throughout the states.”
      _______________

      Yes… only liberals ever try to pull this sort of crap…

      NEVER, true, pure, principled conservatives… NEVER!!!!

      1. If you could just manage to get away the terms liberals and conservatives which only define the contrived left and right of the LEFT meaning those who believe in Government over People – at least according to the left. and use some definitions that properly define the center for starters you might get somewhere. The rest is just propagandist BS.

        How do you define the Center? It’s not the center of the left to the exclusion of all the rest of us for sure. But in a Representative Constitutional Republic it’s the Constitution and is a long long way from the foreign ideologies the left truly worships.

        IIt’s the center the forgotten and unrepresented citizens of the United States of America honor and respect.

        Sorry about yiour lack of education snowflakes it’s not ‘your democracy’ it’s OUR Republic.

        Didn’t Nov 8th teach you anything?

        Ever think of going back to the old school and seeing if any of those ‘teachers’ are still there and jack slapping the crap out of them for cheating you all those wasted years?

        Does Democracy have a place in OUR Republic? Of course. it’s the basic principles that the rest is built on…but once you elect anyone with delegated authority it’s no longer a Democracy and once you relinquish control (such as the 31 states without Recall) it becomes a Representative Republic.

        ‘Wow where can we find out about that?’

        Not in your daily collective programming by the lame left stream media that’s for sure.

        Try thinking for a change. Then go get the Handbook For Citizens….and a pre 1989 dictionary. Meanwhile your silly arguments about whose going to win this or that or the other still fail to take in to account the 40% who trashed your silly hopes and dreams last November. Wiped out the Clintons, shattered the former Socialiist Democrats and left a group of Republicans in Name Only – your former right wing – into calling themselves moderates?

        Not even close Rino’s your still the third priority target.

        WE got OUR Consititutional Republic back and we’re still ‘your systems worst enemy.’

        Judging from the frantic cries for help that got Howard DEAN are you kidding me some few headlines we’re your second worst enemy. The worst? :Look in the Mirror… As a member of a collective there will be no reflection. None at all. Short of iyour ruling class you don’t rate that high.

        But thanks for the help iwe coulcn’t have won without you!

  19. The Left seems to believe there should only be one allowable point of view in this country, so sure Comrade Howie, go ahead and call anything to the contrary hate speech.

    1. It was cringe worthy to watch bill nye who calls science as political and then asks CNN why they have one against 4 , it should have been 4 vs none to propagandize fudged numbers

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