He’s being scolded in various quarters of the right this morning for getting the law wrong, but I took him to be speaking aspirationally via moral assertion, as partisans are wont to do. “Health care is a right.” “The Second Amendment applies to the collective, not individuals.” “Hate speech isn’t protected by the First Amendment.”
Hate speech is not protected by the first amendment. https://t.co/DOct3xcLoY
— Howard Dean (@GovHowardDean) April 21, 2017
It’s worth noting what inspired his comment:
Free Speech Defenders Don't Forget: Ann Coulter once said: My only regret w/ Timothy McVeigh is he did not go to the New York Times building
— Steven Greenhouse (@greenhousenyt) April 20, 2017
“Hate speech” arguments typically focus on invective aimed at vulnerable groups, like minorities, on the theory that they need special protection from the majority. Coulter’s remark wasn’t aimed at them. It’s “hate speech” to Dean because it condoned violence, but if it were a true threat she could be prosecuted for it under existing First Amendment jurisprudence, without any new constitutional “hate speech” excrescences. Pointing to a tasteless joke as the sort of thing he’d like to ban amounts to admitting that he wants free speech placed on a slippery slope. As Eugene Volokh says:
U.S. law has just never had occasion to define “hate speech” — any more than it has had occasion to define rudeness, evil ideas, unpatriotic speech or any other kind of speech that people might condemn but that does not constitute a legally relevant category…
Calls for a new First Amendment exception for “hate speech” shouldn’t rely just on the undefined term “hate speech” — they should explain just what viewpoints the government would be allowed to suppress, what viewpoints would remain protected and how judges, juries and prosecutors are supposed to distinguish the two. And claiming that hate speech is already “not protected by the first amendment,” as if one is just restating settled law, does not suffice.
The fact that Dean’s making his point at Coulter’s expense during her high-profile standoff with Berkeley makes me wonder if he thinks she should pay some penalty now in terms of diminution of her speech rights for something she said decades ago. If in fact she’s guilty of “hate speech” for what she said about McVeigh and the Times, should public universities not have to let her speak if she’s invited by students to campus? What legal, or social, punishment does Dean want for speech crimes? When has Coulter “done her time”? Add that to Volokh’s list of concerns.
A more important question: How many Americans share his belief that the First Amendment shouldn’t protect hate speech?
A lotta Dems, but plenty of independents and even Republicans too. The same poll asked people what the First Amendment does and doesn’t protect, irrespective of their views of what it should and shouldn’t, to test their knowledge of the law. Does the law as currently written allow people to “stir up hatred”? Fifty-six percent knew enough to say yes but 17 percent said no, including a quarter of Democrats. Comments like Dean’s are designed to breed ignorance, I suspect, on the theory that if people believe “hate speech” is already forbidden under law, their false status-quo bias would make them more inclined to tolerate efforts to criminalize it eventually. If you incorrectly believe that the Constitution doesn’t permit hate speech right now, why would it bother you if the left tried to make that a reality later?
Update: Good questions from WaPo. Are these tweets “hate speech”? Why or why not?
Notice Trump sniffing all the time. Coke user?
— Howard Dean (@GovHowardDean) September 27, 2016
I choose Macron, but Better far left than far right. Right are autocrats who don't believe in democracy. https://t.co/XZVQoRMtTV
— Howard Dean (@GovHowardDean) April 19, 2017