Constitutional Law

Howard Dean's New Excuse for Censoring Ann Coulter: She Incites Violence

A First Amendment lawsuit explains why Dean is wrong to think Berkeley's cancellation of Coulter's speech was constitutionally unproblematic.

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Gage Skidmore / Wikimedia Commons

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.

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.

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  1. I keep wanting to ask “why is anyone still taking Howard Dean even remotely seriously?” but then I remember that John McCain is still considered a serious politician.
    I weep for humanity.

    Howard the Duck would be a better source for constitutional insight than Howard Dean.

    1. why is anyone still taking Howard Dean even remotely seriously?

      Are they? I guess some Democrats. But I have no idea what he’d been doing since his stint as DNC chair and I suspect most people are in the same boat. Maybe he’s just desperate for attention.

    2. Howard The Duck is the most underrated movie of all time.

  2. Howard Dean’s explanation of why it’s OK to censor Ann Coulter

    I thought only governments had the power to “censor.” Or are we expanding the definition now to include not being invited to speak somewhere as “censorship”?

    1. No, but being invited to speak and then having the event cancelled due to the heckler’s veto is censorship.

      This is one of the few instances where a situation could be solved by the police doing their fucking job. I don’t understand how it’s so hard for them to mobilize and have at the ready an anti-riot team. Students who vandalize or attack other people should be arrested and expelled, end of fucking discussion.

      1. The University of California Berkeley is the property of the State of California. Any “anti-riot team” (riot squad, SWAT team) available would have to be from local law enforcement (aka “the police,” LLE, etc.) LLE can only go on campus in pursuit, in egregious circumstances, or if invited. A student brawl would not be considered egregious circumstances. Therefore, if the Dean is worried, he or she should notify State Police, and ask them to ask LLE to provide the required protection. End of fucking problem.

    2. Cal State is a government run institution.

    3. Well it’s not like we didn’t know you were an idiot. Yes, other institutions can censor.

    4. Preventing people from speaking at a government institution based on what they are going to say bears more than a passing similarity to censorship. Why don’t you say what you really mean?

      “People who say things I disagree with should be prevented from speaking using violence if necessary”

      That would be much more intellectually honest.

    5. Well, you were wrong.

    6. 1. UC is a government institution.

      2. They were invited; UC disinvited them. That isgovernment censorship.

      3. We aren’t expanding any definition; it has always been so.

      4. You are still an idiot and I am supplying the boldface fad you seem to have gotten over.

    7. Conclusion: Reason “libertarians” expand “censorship” to include any entity that declines to provide a microphone or soapbox to anyone.

      1. Idiot makes bad conclusion. Wow

    8. Contrary to this, by the first amendment, the federal government is NOT allowed to censor. By the fourteenth amendment, and a good deal of jurisprudence over the lat 110 – 120 years, state and local goverments, and their agencies like the University of California, Berkeley and elsewhere, also are NOT allowed to censor.

      Howard Dean, having been governor of a state, surely knows this. Shame on him for ignoring his knowledge in favor of cheap partisan agitation.

    9. UC Berkeley is the government. Did you think it was a private university?

      This case is about people who WERE invited to speak. The definition is not being expanded at all.

  3. I don’t know about you, but when I hear men shriek “YEEEEEEEEAH!” in a high-pitched tone I feel pretty violent. We might have a case for banning Howard Dean.

    1. I still have no idea why the “Yeeaahhh” was or is a big deal or says anything negative about him. He was trying to rile up a crowd at a noisy event. I guess it’s symbolic of his failure or something.

      1. Symbolic of his failure to connect with a crowd.

      2. Because he sounded exactly like a goat.

        1. I don’t know what you are doing to your goats, but you should probably stop it.

  4. The party of civil liberties, ladies and gentlemen.

    Yeah, indeed.

    1. Their support of free speech was always tactical not ideological. They always knew that one day their speech would be safe and then they would come for yours. That day has arrived in their tiny fevered little minds.

  5. Isn’t the Koran an incitement to violence? And perhaps the Old Testament?

    1. If the Koran is, the OT is too. Plenty of times when you are supposed to kill people in there. But I think both are too non-specific. And since the authors are long dead, who do you charge? God?

  6. Yay, free speech.

    Fuck Ann Coulter.

    1. succinct and accurate.

    2. I mean, if I had to bang a 55 year old

    3. Ugh, no thanks, Ken. That is close to necrophilia.

  7. According to Dean’s logic, Madonna should be prosecuted for her comment “I’ve thought a lot about blowing up the White House.”

  8. Stop! Stop! He’s already dead!

  9. I personally think Ann Coulter is a racist idiot but she still has the right to her opinions no matter how much I may disagree. Howard Dean is and always will be a loud mouth idiot. Saying that people have the right assault others, riot and burn others property because they are offended by what someone says is like defending a theft because they are poor or a rapist because they are horny. Only a Progressive liberal could come up with that logic.

    1. Why do you think she’s a racist? I love how she skewers liberals, but she also a drug warrior.

  10. Some people, well, many people, seem to have a vested interest in rationalizing and excusing the stupidity of whatever tribe they are aligned with.

    The world would be so much a better place if more people were willing to call their own side out when they are acting like retards. This is no exception.

    Idiots on the left who try to make ridiculous claims like “if Berkley gives Ann Coulter a platform, that will make some people think they are endorsing her views!” are just trying to confabulate a rationalization for doing what they think is in their self-interest – suppressing dissenting views. Only a moron would think that UC Berkley is endorsing Ann Coulters beliefs by allowing her to speak there.
    And then there’s the idea that “Ann Coulter’s speech will incite violence, caused by us, because we choose to be offended, so therefore you should stop her from speaking”, which is the functional equivalent of what radical Islamists do by threatening people who draw pictures of Mohammed with death. The more we treat the idea that some speech shouldn’t be allowed because it is so offensive that it will provoke violence, the more people will coincidentally find speech they dislike so offensive they just CAN’T HELP behaving violently. (That cartoon just made me CRAZY, I couldn’t stop myself from committing murder! )

  11. I feel like the dumbasses at Berkeley really fucked up on this one. Ann Coulter isn’t some internet personality, or Tweeting professional. She represents (more or less) the conventional conservative base — which means that Berkeley has no conflated fascists and alt-right with normal conservatism. And while I have no doubt that is how they actually feel about it, there’s no way they can win in censoring standard issue team red.

    I hope the law suit nails Berkeley to the wall and leaves them there to bleed out. These kids are utterly meaningless.

  12. “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.”

    May one note, amicus curiae, that the Times responded to those protesting its editorial position on the anti-Republican Draft Riots by posting gatling guns at the entrance and the newsroom windows?

  13. Howard “I Have a Scream” likes the idea that bullies can cancel free speech because he counts on his side supplying the bullies, and therefore te other side being suppressed. Coulter’s joke about McVeigh is no worse than similar comments by liberals such as Michael Moore about the 9/11/01 attacks. Her comments about the Trump rallies reflect a wish that they’d fight back against the liberal rioters seeking to shut them down — as did finally happen (in Berkeley, to boot) on All Thieves’ Day (April 15). Dean’s real goal, as it is with most liberal fascists, is the suppression of opposing views. Some liberals say they oppose this — but so far none have made any effort to protect free speech in academic settings.

  14. Dean is such a wussie boy. Her words do not incite normal thinking people to violence. the ONLY ones who get incited to violence are those who are wont to throw temper tantrums whenever someone else disagrees with them, or says something they don’t like.

    I suspect these kids who wear their delicate hearts on their sleeves grew up never being allowed to just “go outside and play”, getting muddy, falling out of trees and scraping their knees, falling off their bikes (without training wheels) and catching a bit of road rash. They probably never had to do the washing up after supper, had the maid to spread their beds, and never had to wear hand me downs from big brother/sister.

    Now they are on a whinge because they insist everyone else be treated like the snowflakes THEY are……

    sick.

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