Howard Dean's explanation of why it's OK to censor Ann Coulter continues to evolve as he desperately seeks a legal excuse to silence someone whose speech offends him. Meanwhile, a federal lawsuit filed yesterday explains why Dean is wrong to think there was nothing constitutionally problematic about the University of California at Berkeley's cancellation of a speech by the conservative commentator.
Last week Dean, former governor of Vermont and former chairman of the Democratic National Committee, said it was OK for a public university to cancel Coulter's talk because "hate speech is not protected by the First Amendment." That is not true, as many people, including my colleague Robby Soave and UCLA law professor Eugene Volokh, pointed out.
Over the weekend, having been informed that "hate speech" is not a constitutionally relevant category, Dean started citing Chaplinsky v. New Hampshire, the 1942 case in which the Supreme Court upheld the criminalization of "fighting words," in-person insults that "tend to incite an immediate breach of the peace" by provoking a violent response from the target. As I noted yesterday, neither of the Coulter quotations cited by Dean remotely resembles the Supreme Court's definition of fighting words.
Yesterday Dean decided his real point was not that Coulter's remarks qualify as "hate speech" or that they amount to "fighting words" but (as I predicted) that they constitute "incitement to violence," which "is not protected." That issue, Dean informs us, "has been litigated multiple times." Once again Dean is making shit up to give his censorious impulses a sheen of constitutional legitimacy.
Yes, offensive speech should not be banned. But incitement to violence is not protected and that has been litigated multiple times. https://t.co/vJkgt8VylD
— Howard Dean (@GovHowardDean) April 24, 2017
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. Nothing Coulter has said fits that description.
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." On Sunday, 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 these statements meets the Supreme Court's definition of incitement, which requires a speaker who intentionally encourages people to commit crimes and an audience that is likely to do so right away.
Nor is a speaker guilty of incitement when people who do not like her message express their displeasure through violence and vandalism, although that is the danger cited by U.C.-Berkeley when it canceled Coulter's speech. In a lawsuit filed yesterday, Berkeley College Republicans (BCR), which invited Coulter, and Young Ameriica's Foundation (YAF), which underwrote her visit, argue that the university's capitulation to the heckler's veto violates the First Amendment rights of people who want to hear what Coulter has to say.
After canceling Coulter's speech, which was originally scheduled for this Thursday evening, the university responded to criticism of that decision by offering to let her speak next Tuesday afternoon instead. The proposed timing—in the afternoon rather than the evening, and in the middle of Berkeley's "dead week" between classes and exams—seemed designed to minimize the attention attracted by the event in the hope of forestalling violent protests like those that led the university to cancel a February 1 appearance by former Breitbart News editor Milo Yiannopoulos. Similarly, BCR says it felt compelled to cancel an April 12 speech by another conservative commentator, David Horowitz, after the university insisted that it take place at an inconvenient location and end by 3 p.m., meaning most students would be in class while Horowitz was speaking. YAF and BCR's complaint argues that the restrictions administrators portray as safety-minded time, place, and manner regulations amount to unconstitutional discrimination against unpopular viewpoints:
Defendants engage in a pattern and practice of enforcing a recently adopted, unwritten and unpublished policy that vests in University officials the unfettered discretion to unreasonably restrict the time, place, and manner of any campus event involving "high-profile speakers"—a term that is wholly undefined, and that has enabled Defendants to apply this policy in a discriminatory fashion, resulting in the marginalization of the expression of conservative viewpoints on campus by any notable conservative speaker. Defendants freely admit that they have permitted the demands of a faceless, rabid, off-campus mob to dictate what speech is permitted at the center of campus during prime time, and which speech may be marginalized, burdened, and regulated out of its very existence by this unlawful heckler's veto.
By imposing an unconstitutionally vague policy concerning so-called "high-profile speakers," and selectively applying that impermissibly vague policy to burden or ban speaking engagements involving the expression of conservative viewpoints, Defendants have deprived YAF and BCR of their constitutional rights to free speech, due process, and equal protection.
The university insists it "welcomes speakers of all political viewpoints and is committed to providing a forum to enable Ann Coulter to speak on the Berkeley campus." It notes that Ben Shapiro, another former Breitbart News editor, spoke at Berkeley in April 2016. But that was before the Milo melee that prompted the new policy. The lawsuit says "BCR and YAF are unaware of any prominent non-conservative speaker to which any UC Berkeley officials, including Defendants, have applied the High-Profile Speaker Policy, nor any non-conservative speaker that has had to cancel an appearance as a result of Defendants' persistent interference, including but not limited to their unreasonable time, place, and manner restrictions on the speech."
According to Howard Dean, Berkeley need not claim its speaker policy is content-neutral as applied to Coulter because whatever she might say is categorically excluded from the First Amendment's protection. Dean cannot really explain why that is, but he seems to think speech can be censored as an "incitement to violence" whenever people might respond to it violently—a policy that gives bullies across the political spectrum the power to dictate who may speak and what they may say. Dean not only thinks that's a fine idea; he claims it has been blessed by the Supreme Court.