Former Democratic National Committee chair and presidential candidate Howard Dean over the weekend continued to defend his much-criticized assertion that hate speech is not protected by the First Amendment.
Dean claimed Thursday in reaction to a planned Ann Coulter speech at the University of California-Berkeley that her beliefs were not constitutionally protected.
Hate speech is not protected by the first amendment. https://t.co/DOct3xcLoY
— Howard Dean (@GovHowardDean) April 21, 2017
As the Washington Post and several Twitter users pointed out, Dean is wrong. The Supreme Court has consistently ruled that the government cannot ban or otherwise restrict speech just because others find it odious or bigoted.
Dean first defended his position in a series of tweets, claiming the court's ruling in Chaplinksy v. New Hampshire was on his side (a tactic borrowed from CNN host Chris Cuomo when he claimed hate speech could be banned).
Why don't you read the 1942 Chaplinsky decision from Scotus. https://t.co/1nGuRlrAOQ
— Howard Dean (@GovHowardDean) April 22, 2017
This is NOT protected speech under the first amendment. Check Chaplinsky V New Hampshire SCOTUS 1942. https://t.co/wr3rMaRnAB
— Howard Dean (@GovHowardDean) April 23, 2017
Dean said much the same in an MSNBC interview on Sunday.
"You've been in a bit of a Twitter scrap this week … ‘Hate speech is not protected by the First Amendment,'" host Lisa Bloom said, quoting Dean's original tweet.
"That's actually true," Dean insisted. He cited in his defense a 2002 Supreme Court case, which was decided in 2003, saying that cross burning could be prosecuted, and the 1942 Chaplinksy decision.
Dean is once again misinformed. To start, the court found in Chaplinksy that the government can ban "fighting words," a different category of speech than hate speech. Fighting words, as defined by the court, are only those that "tend to incite an immediate breach of the peace."
Chaplinsky has also been watered down by later Supreme Court cases. In Brandenburg v. Ohio, the court ruled that Ku Klux Klan members could not be banned from holding a rally and marching while making derogatory, bigoted statements about Jews and African Americans, even if the event was likely to lead to violence. Only speech that calls for and is likely to lead to "imminent lawless action" could be punished, the court ruled.
Dean is correct that the Supreme Court held in 2003 that the state of Virginia could punish three men for cross burning. But the court ruled in Virginia v. Black that cross burning could only be banned when it was done with the specific intent to intimidate, not because of the hateful message. The majority actually struck down Virginia's cross-burning law because it treated all cross burnings as de facto intimidation.