The Volokh Conspiracy

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Howard Dean doubles down on support for UC Berkeley excluding Ann Coulter


Ann Coulter speaks onstage in Los Angeles on Aug. 27, 2016. (Alberto E. Rodriguez/Getty Images)

Former Vermont governor, presidential primary contender and Democratic National Committee chair Howard Dean has been arguing that Ann Coulter's speech at the University of California at Berkeley could be canceled because it's "hate speech." His initial argument, in a necessarily terse tweet, was that ""Hate speech is not protected by the first amendment." When questioned on that, he tweeted, "For WAPO and others raising issues about hate speech not being constitutionally protected, read "Chaplinsky v New Hampshire SCOTUS 1942." When questioned further, he said this in a Sunday interview on MSNBC:

Interviewer: Your take, and here's the tweet from you, "Hate speech is not protected by the First Amendment." Okay, talk about this, explain this.

Dean: That's actually true. … First of all, okay, several things to think about. One, the United States has the most far-reaching protections on speech of any country in the world. Two, it's not absolute. Three, there are three Supreme Court cases that you need to know about. One, the most recent, is a John Roberts opinion that said, the Phelps people, that church out in Kansas, had the right to picket horrible, offensive with signs at military funerals.

Two, in 2002, … the Supreme Court said cross burning was illegal because it could incite violence.

And three, … the Chaplinsky case in 1942 said that speech was not permitted if it included fighting words that were likely to incite violence.

So this is not a clear-cut carrying on the way the Right does. The Right loves to be able to say anything they like, no matter how offensive it is. Well, Ann Coulter has used words that you cannot use on television to describe Jews, blacks, gays, Muslims, immigrants and Hispanics. I think there's a case to be made that that invokes the Chaplinsky decision, which is "fighting words," likely to incite violence. And I think Berkeley is within its rights to make the decision that it puts their campus in danger if they have her there. I'll be the first to admit it's a close call.

I'm afraid this version of Dean's argument is no more successful than the original.

1. Virginia v. Black (2003) allowed the prosecution of two people who burned a cross on a black family's lawn, on the grounds that it could be seen as a punishable true threat of violence (not "because it could incite violence," a very different First Amendment exception). And the same case held unconstitutional the prosecution of a person who burned a cross at a KKK rally, because there was not enough evidence that the cross burning "mean[t] to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals":

It may be true that a cross burning, even at a political rally, arouses a sense of anger or hatred among the vast majority of citizens who see a burning cross. But this sense of anger or hatred is not sufficient to ban all cross burnings.

Black thus cuts against suppressing Coulter's speech for fear that it will arouse anger and thus lead to violence.

2. The Chaplinsky "fighting words" exception, as I discussed in more detail before, allows the punishment of personal insults (bigoted or otherwise) individually addressed to a particular person. This is why cases such as Texas v. Johnson (1989) (upholding the right to burn a flag), Cohen v. California (1971) (upholding the right to display vulgarities) and Cantwell v. Connecticut (1940) (upholding the right to engage in anti-Catholic speech on streets in an overwhelmingly Catholic part of town) have held that the speech in those cases wasn't punishable "fighting words."

Indeed, even FCC v. Pacifica Foundation (1978), which upheld a restriction on vulgarities on radio and television, didn't hold that "you cannot use [certain words] on television to describe Jews, blacks, gays, Muslim immigrants and Hispanics." The Pacifica lead opinion in fact stressed that "if it is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional protection. For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas." And bigoted epithets are offensive precisely because they express (in an especially harsh way) bigoted opinions; see this post for more.

But in any event, even if Dean's statement about "words that you cannot use on television" refers to broadcast TV station practices, rather than to FCC rules, those words are not fighting words when used in a speech to describe groups in general—they can only be fighting words (just like unbigoted insults can be fighting words) if they are targeted to a particular hearer.

3. Perhaps, though, Dean is primarily arguing that the government should have power to exclude certain words from government-owned property—such as university lecture halls—even if it can't criminalize it. Another tweet of his from the day of his MSNBC interview so suggests ("This does not mean she can be prosecuted for saying this but I argue this kind of stuff is grounds for barring her from a University campus"), though the interview's reference to the criminal cases Black and Chaplinsky might suggest that he is talking about prosecution after all.

Still, even if the focus is just on setting rules for what is said on campus, Dean is still mistaken.

A. To begin with, the government cannot discriminate based on viewpoint even when it comes to speech by private speakers in government-supported university programs. Widmar v. Vincent (1981) so holds as to speech by student groups in university classrooms. Healy v. James (1972) so holds as to decisions whether to recognize student groups and thus give them access to various university resources. Christian Legal Society v. Martinez (2010) reaffirms this as to student group recognition decisions. Rosenberger v. Rector (1995) forbids viewpoint discrimination even in programs where universities fund student groups (there, by reimbursing student newspapers for their printing costs). Board of Regents v. Southworth (2000) reaffirms Rosenberger on this score.

If Dean is arguing that UC Berkeley should specially exclude speech that is bigoted against "Jews, blacks, gays, Muslims, immigrants and Hispanics," he is thus calling for the very sort of viewpoint discrimination that the Supreme Court has repeatedly condemned.

B. More importantly, and even apart from whether a restriction on using certain words would be viewpoint-neutral (imagine, perhaps, a total ban on epithets or vulgarities by speakers), any such restriction couldn't justify UC Berkeley excluding a speaker because of a fear that she might use such words (even a fear based on what she has said off-campus in the past).

Indeed, this is a big part of what the famous "prior restraint" doctrine is all about: The government generally may not exclude speakers—even in government-owned "limited public forums"—because of a concern that the speakers might violate the rules if they spoke. The government may not "den[y an] application in anticipation that the [speech] would violate the law." (Southeastern Promotions, Ltd. v. Conrad (1975). Instead, it must "permit the [speech] to go on and rely on law enforcement authorities to prosecute for anything illegal that occurred" (or, as to noncriminal viewpoint-neutral restrictions, to eject the speaker for anything that occurred in violation of the rules). In the words of Justice Harry A. Blackmun, writing for the Southeastern Promotions majority:

… a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand. It is always difficult to know in advance what an individual will say, and the line between legitimate and illegitimate speech is often so finely drawn that the risks of freewheeling censorship are formidable.

So, no, "hate speech" is not unprotected by the First Amendment. Its punishment is not authorized by the "fighting words" doctrine. Universities may not exclude Ann Coulter based on her viewpoints on immigration or anything else. And even if they can impose viewpoint-neutral restrictions on what a speaker may say, they can't exclude Coulter up front just because they think she'll violate those restrictions.