Constitutional Law

Howard Dean Says Ann Coulter Can Be Censored Because Them's Fightin' Words

The former DNC chairman's First Amendment analysis is spectacularly wrong.

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Howard Dean, former governor of Vermont, former presidential candidate, and former chairman of the Democratic National Committee, is a doctor, not a lawyer. Still, you'd think that someone who majored in political science at Yale and has been involved in politics for nearly four decades would know better than to declare, as Dean did last week, that "hate speech is not protected by the First Amendment." But instead of admitting his error, Dean is pushing a new claim in support of his argument that there was nothing constitutionally problematic about the University of California at Berkeley's decision to cancel a speech by conservative commentator Ann Coulter. Yesterday on Twitter, Dean claimed Coulter-style rhetoric "is NOT protected speech under the first amendment" because it amounts to "fighting words." He is wrong again.

Dean deserves some credit for referring to an actual First Amendment doctrine this time, as opposed to the entirely fictitious idea that "hate speech" is a constitutionally relevant category. The 1942 case he cites, Chaplinsky v. New Hampshire, involved Walter Chaplinsky, a Jehovah's Witness who attracted a hostile crowd by denouncing organized religion as a "racket" on the streets of Rochester, New Hampshire. Chaplinsky was arrested for calling a city marshal "a goddamned racketeer" and "a damned fascist."

Chaplinksy's insults violated a New Hampshire law that made it a crime to "address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place," to "call him by any offensive or derisive name," or to "make any noise or exclamation in his presence and hearing with intent to deride, offend or annoy him." The New Hampshire Supreme Court had interpreted that law as applying only to words that "have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed." Relying on that understanding of the law, the U.S. Supreme Court concluded that Chaplinsky's conviction did not violate the First Amendment because the epithets he used were words that "by their very utterance inflict injury or tend to incite an immediate breach of the peace."

Since the Supreme Court has repeatedly narrowed the "fighting words" exception to the First Amendment and has never again relied on it to uphold speech restrictions, the doctrine's continuing relevance is doubtful. In any case, the Coulter quotations cited by Dean clearly do not qualify as fighting words. Dean was initially outraged by a joke Coulter made in 2002: "My only regret with Timothy McVeigh is he did not go to the New York Times building." Yesterday Dean cited a 2016 Coulter tweet: "I would like to see a little more violence from the innocent Trump supporters set upon by violent leftist hoodlums." Neither of those comments remotely resembles fighting words as defined by the Supreme Court, which are insults directed at particular individuals in their presence that are apt to provoke a violent response from them.

Dean may be confusing fighting words with incitement. He seems to be implying that Coulter's comments might encourage violence not against her (as with fighting words) but against third parties (The New York Times in one case, anti-Trump protesters in the other). If that is what Dean means, he is still wrong to think the possibility of such violence means Coulter's statements are "NOT protected speech under the first amendment." In the 1969 case Brandenburg v. Ohio, which involved a Klansman arrested for advocating violence in the service of a political cause, the Supreme Court said such speech is protected by the First Amendment unless it is aimed at inciting "imminent lawless action" and is likely to have that effect. Neither Coulter's Timothy McVeigh joke nor her comment about violence by Trump supporters fits that description.

Since calling Coulter's remarks hate speech, fighting words, and incitement cannot justify suppressing them, Dean may be casting about for another excuse. Perhaps her comments qualify as "true threats," obscenity, or defamation. Although those arguments are absurd on their face, that does not mean Dean, desperate to defend censorship of someone whose speech offends him, won't try them out next.

NEXT: Brickbat: Public Servants

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  1. Coulter is some vile excrement of a human being. Not sure how she’s still around, except for appealing to the dark side of many Rightists.

    But, unless her statements are a specific call to violence, not a supposition or joke, then she’s protected. “I don’t agree with what you are saying, but I will defend your right to say it.” Howard Dean should know better. I’m sure we could indulge in whataboutism and find similar on the Left.

    1. yeah, but she is pretty hot all things considered…

      1. In a chiseled cowboy kind of way I guess you could argue she’s handsome. I don’t agree but you could argue it.

        1. “Joke” is certainly not a defense, because everyone knows certain jokes cross the line. Surely no one here would dare to defend the “First Amendment dissent” of a single, isolated judge in our nation’s leading criminal “satire” case? See the documentation at:

          http://raphaelgolbtrial.wordpress.com/

      2. She and Caitlin Jenner are proof of the tolerance on the right.

      3. I will defend your right to like whatever you want to find hot.

      4. Not bad for a 55 year old.

    2. She exists because of her opponents, like Dean. There is no such thing as a left-wing provocateur, because there is no need for one. It is not conservatives who are violently preventing people from speaking. She, like Milo, only exist because her idiotic opponents continue to prove her right.

      1. Yep. Piss off the right people in an entertaining way and you will have a following.

      2. You’re aware that most late-night Leftie “comedians” make jokes significantly harsher than anything Coulter said.

        But, I’m sure, that’s “different” because…reasons.

        1. Good job proving his point.

        2. Thank you for reminding us that whataboutism is the only debate tool people seem to know to use no matter where they are on the political spectrum.

      3. So, Dean made her do it? The Right blames the Left for shirking personal accountability, but step on hallowed personalities, and we quickly see that it’s not just a Left problem.

        Conservatives have their own version of free speech issues. I know we like to follow the current push by Koch and Scaife-funded FIRE and like to decry PC on campuses, but it’s hardly the only way we infringe of free speech in US society.

        1. So, Dean made her do it?

          I can’t tell if that’s an intentional straw man or if your reading comprehension skills are just really that bad.

    3. “Coulter is some vile excrement of a human being.”

      Because she says things you disagree with? Or are there any actual specific vile acts she’s committed that have you so offended?

      Seems a bit extreme to have that sort of hatred based solely upon someone else’s ideas. Especially since few of hers seem to make it into any sort of common practice. Let me know when she reaches the level of immiseration caused by Marx.

      1. It is a bit extreme, but not terribly unusual.

      2. People have to clear it with you now before they’re allowed to find someone vile?

        1. Yes, that is exactly what I said.

          Or maybe not. Reread it again.

          But it certainly does appear that you expect me to clear my opinions with you.

          My suggestion is: Don’t hold your breath.

      3. Oh, sorry, I forgot all about the “ThomasD Immiseration Equivalency Scale”. I formally change the adjective from “vile” to “discomfiting” to match up to your scale. I think she could rise up to a Marx level, but lacks the intellectual capacity and charisma to get there. She’d not get higher than “Alex Jones” ranking, I bet.

        1. It was a simple question. Since you didn’t cite any actual actions it is apparent that you choose to deem someone ‘vile excrement’ for nothing more than the expression of opinion. Which is entirely withing your prerogative.

          Although, as I noted, it does seem a tad bit extreme. Since, absent any other form of discrimination on your part, is equally applicable to pretty much everyone. Yourself included.

        2. Alpha, comparing her writing, and verbal statements to your writing here, I would say she has greater intellectual capacity and education than you can claim. Your statement appears to be based on negative feelings, as opposed to real facts or analysis.

          1. Well yes, you are correct there LotS, but you fail to put enough emphasis on *FeELInGZ* …… cuz stuff he doesn’t like.

    4. Why would Dean ‘know better’? He’s a Leftwing Smalltime Political Tool, One Each. I have never seen any evidence that he is capable of serious thought. If he made a public announcement of something I seriously believed – say that water was wet – I would immediately be inclined to check it. It isn’t that he consciously LIES, the way Hillary does. It’s that he has never had a thought in his life that wasn’t put there by someone else.

      1. What should be the scary part is that Dean, a former governor, prior presidential candidate, and ostensibly an elder statesman of one of the dominant political parties of this nation advocating the suppression of a professional rhetorical bomb thrower, a celebutard pundit and nothing more.

        1. Well of course. So long as a person is okay with limiting free speech, there is no reason to choose between those you dislike and those who are serious political, foes when you can just as easily target both.

  2. The problem with banning hate speech is how easily anything can be pigeonholed into that category. It all depends on who is doing the categorizing, and statists of all stripes are as short-sighted here as everywhere else they want the state to define and control behavior — they cannot fathom not being in control all the time, that the opposition will get its chance to redefine wrongful behavior and put them on the wrong side.

    This should no longer amaze me, but it always does. Since I don’t believe they are that stupid, there has to be some more rational reason for this behavior, and it must be that all they really care about is state control, and they don’t really care which side they are on, as long as the state wins, because they believe the state paycheck imbues its recipients with wisdom and honor.

    1. The main problem as I see it is that it’s not illegal to hate people, free speech is protected, so the notion that it’s not protected to express your hatred for whomever it is you hate is absurd.

      1. The main problem as I see it is that it’s not illegal to hate people…

        Remember that the next time you hear about someone being tried for a “hate crime”.

  3. The party of civil liberties, ladies and gentlemen. Yeeeeeeeaaaaaahhhhhhhhhh!

  4. “hate speech is not protected by the First Amendment.”

    Is an aspirational statement. Dr. Dean is only in error by using the present tense.

    1. “Dammit, SIV, he’s a doctor not a lawyer!”

      1. Like the comedian said…see the MD on my smock? “me doctor”

      2. I am a lawyer and I say to Dr. Dean, M.D.: “You don’t give legal advice and I won’t do rectal exams.”

        1. I am neither. Would it be alright if i continued to give rectal examinations anyway? I mean, as long as I’m on my lunch hour?

          1. So long as everything comes out in the end.

          2. So long as everything works out in the end.

  5. A few years ago, when I ran across the statement “hate speech is not free speech” for the first time, I noted how truly frightening that “thought” was. Just as frightening is that Dean is not only not alone in this sentiment (not even alone among presidential candidates!!), but that he aspired to be President, whose oath of office is to support and defend the Constitution, not to protect the U.S. from armed aggression.

    1. I agree. A great many of these folks passionately believe that “hate speech” is not free speech. As in: it is an immutable law of the universe that “Hate Speech” is not free speech, similar to the law of gravity, or murder is wrong. In their mind it is not a new idea and a serious departure from the norms of protected speech, it is now and always has been the only true state of things.

      Their attitude on this is very Orwellian, with a major dose of “to be truly free, you must first be subjugated by the state”.

      1. To me it is very akin To, and possibly an outgrowth of, the idea that discrimination should be illegal because it is icky.

        The freedom of association inherently contains the right to discriminate. You can’t outlaw part of association and still have association. You can’t outlaw speech and still have a right to speech. (Well… You CAN it’s just that the right won’t be recognized.)

      2. considering these folks insist on loopholes sufficiently wide to drive a Supertanker through on the “murder is wrong” idea, why does anything of lesser import come as a surprise?

    2. Something something lie repeated often enough something something.

    3. “Hate speech isn’t free speech” doesn’t even make sense. Free speech isn’t a category of speech, it’s a general principle that is a fundamental right and supposed to be the law of the land.

    4. If “hate speech” isn’t protected, we don’t need free speech in the first place.

      Nice speech tends to need no protections.

    5. Just make sure you start labeling everything they say as hate speech.

  6. sooo, according to the good doctor…I can call him a dirty rotten child molester who cohabitates with animals and is the product of incest, not to mention being of deficient mental & physical capacity who rightly deserves to be throttled (by parties unnamed) within an inch of his useless existence and that his entire family should be hounded to the gates of perdition after being defiled by goats…as long as I say pretty please and that I was only kidding?

  7. Sounds to me like the “fighting words” doctrine can easily become a heckler’s veto, you just have to start punching people as soon as they say anything that offends you. Like say, if Coulter says “Hello” to Dean and he immediately punches her in the mouth, well, “Hello” is obviously fighting words, isn’t it? Remember, it’s always the left that gets to define words and the terms of the debate – all white people are racist, all men are rapists, any criticism of Muslims is Islamaphobia just as any criticism of gays is homophobia or any criticism of illegal undocumented immigration is xenophobia. A verbal attack is just as violent as a physical attack according to the left, if it’s triggering and micro-aggressive to fail to call someone by some imaginary pronoun they prefer based on which side of the bed they got up on, all words are fighting words.

    1. For those who are scoffing at Jerryskids’ semi-hyperbolic examples, one of the O’Reilly accusers was on MSNBC last week explaining that she was sexually harassed because he said she was becoming hysterical during an on-air segment.

      Here’s how that logic goes – again, her actual accusation – Hysterical derives from the Greek hysterika, meaning uterus. Therefore, use of the word hysterical is misogynistic and automatically sexual harassment.

    2. The standard is that any reasonable person would be incensed into violence upon hearing those words directed at them. Modern sensibilities wrt violence being what they are, this “fighting words” exception has been pretty much eroded away as nobody thinks it’s rational to respond in kind to speech with violence… outside of Berkeley, anyway

      1. The left is explicitly claiming that speech is violence. They’ve managed to twist the language such that, an irrational fear; they can certainly bend the language such that speech=action.

      2. Which is good. The “fighting words” doctrine is terrible.

        If you are compelled to do violence because of something someone says, that’s your deficiency.

        1. The “fighting words” doctrine and the “can’t yell fire in a crowded movie theater” stuff are two examples of the Supreme Court failing spectacularly to do its job and instead rubber stamping governmental power.

          About the only good news is that in each case they’ve held off trying to use either as much of a precedent.

        2. It’s the speech equivalent of “she had it coming for wearing such skimpy clothing.”

    3. He who awakes in the morning and desires a fight WILL find one, or make one.

      Sort of a self-fulfilling prophecy, right?

      Why can’t we consider the veiled threats of the UC Berserkeley’s hooh hahs that “we can’t guarantee your safety” as “picking a fight”? Seems as if they WANT a fight, and for her to be harmed, so badly that if she DOES show up they’ll make sure it happens. Its a near certaintly they won’t lift, nor will they allow to be lifted, one finger to enforce any laws against physical violence.

  8. So here’s a question:

    Is calling for people to respond in kind to physical assaults by political terrorists (what else would you call them?) wielding makeshift weapons an incitement to violence? Isn’t that just kind of stating the guidelines under the law – that you can respond to physical assaults with a proportionately violent response?

  9. BTW…. I googled for examples of hate speech by Coulter and found this petition at change.org calling on the FCC to investigate her for hate speech.

    These people really are as loony as you think.

    But in defense of the notion that they are mostly full of crap and all the outrage is fake and merely for simple political points scoring, they only managed to get 55 signatures on their petition.

    1. Ann Coulter is awesome. They hate her because she is right, and it pisses them off.

  10. So Howard Dean is not Fearless Girl? Just another pants-wetting snowflake who needs a safe space to protect him from other viewpoints. What a pussy.

  11. Howard Dean … is spectacularly wrong.

    No. Shit.

  12. So his lunatic yell wasn’t a one off but his running internal dialogue revealed.

  13. Still, you’d think that someone who majored in political science at Yale and has been involved in politics for nearly four decades would know better

    Mmmno, no I wouldn’t.

    1. DR-
      I’m with you. I would have assumed that such a background would unsure a complete lack of understanding of free speech.

  14. Neither of those comments remotely resembles fighting words as defined by the Supreme Court, which are insults directed at particular individuals in their presence that are apt to provoke a violent response from them.

    As alluded to by Jerryskids above, the “fighting words” doctrine could become a slippery slope, as it seems not just the insults but the mere presence of certain individuals provokes a violent response in campus illiberals. And then it really is just a heckler’s veto.

  15. Neither of those comments remotely resembles fighting words as defined by the Supreme Court, which are insults directed at particular individuals in their presence that are apt to provoke a violent response from them.

    As alluded to by Jerryskids above, the “fighting words” doctrine could become a slippery slope, as it seems not just the insults but the mere presence of certain individuals provokes a violent response in campus illiberals. And then it really is just a heckler’s veto.

  16. Hmmm.. how about when Cornwallis’ troops turned their backs on the Yanks at Yorktown, and those same Yankees struck up Yankee Doodle in response? Maybe Ronald Reagan’s command to the head honcho of the Soviet Union “TEAR DOWN THIS WALL”. Or consider Dianne Feinstein’s statement “Mr. and Mrs America turn them (our guns) all in”? Maybe Barack Obama’s “red line in the sand” somewhere over there were their is lots of sand…. but HE hadn’t the spine to back that threat up. Mr. Trump didn’t say anytning further, he just DID IT. Maybe HE violated the First Ammendment? What about the clear and credible threats against Pam Geller as she announced her “cartoon show’ in Garland, Texas, that if she did “they” would come and attack the place? WHO was arrested for THAT clear threat? Funny thing, two mozzie clowns from some mosque in Arizona travelled to Garland to DO just that…. but they were so incompetent THEY were the ones got “liquidated”.
    In reality, I believe the statements made by UC Berserkely’s hooh hahs that she’d be at high risk of harm if she DID speak were more a threat than a warning. Look at the conduct of the “police” during the Yanapolis debacle, or the later one when some conservatives actually had the stones to stand their ground against the antiTrumpsters.

  17. Coulter words are fighting words only to those who disagree and want to actually physically fight. Lately it is only liberals who want to be violent and in fact are on many campuses in the past couple of years.

    I’d say Coulter’s fighting words are a tad less troublesome for everyone than liberals’ violence — liberals’ fighting BEHAVIOR.

  18. That folks is why I voted for Trump and will never EVER vote for a Democrat. They should shorten their name to “rats” Howard Dean has always been a control freak, bottom feeding piece of shit, I wouldn’t bat an eye if the fucker died of a heart attack, in fact I’d throw a celebration. The extreme, nitwit, nut hatch looney tunes have taken over the rat party, the left is weaponized and their dangerous, they need to be defeated at all costs and if that means voting conservative I’ll do it, because if the regressives ever get complete power it will be lights out for libertarians and conservatives alike. These people are dangerous and they need to be stopped.

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