Howard Dean has been saying some remarkably dumb things about free speech this week. I can’t embed his tweets (his Twitter staff blocked me for some very low-grade C-level snark) but it essentially amounts to there being no right to “hate speech”.
You can read Mataconis above and the link therein to Volokh who are experts in the legal history. They point out chapter and verse where Dean has it wrong.
The idea that so-called ‘hate speech,” a term which is incapable of being adequately defined objectively and seems to depend entirely on the subjective reactions of listeners, is not protected by the First Amendment goes against the entire history of the First Amendment itself as well as numerous landmark Court decisions that have put the definition of ‘freedom of speech’ to the test. One of the most famous of those, or course, was National Socialist Party Of America v. Village of Skokie, a 1972 case that involved an effort by a predominantly Jewish Chicago suburb’s efforts to block a group of Nazis from staging a march through the town. In that case, the Illinois Supreme Court, acting after a reversal of an injunction against the march issued by the United States Supreme Court, ruled that the use of a swastika in the march was precisely the kind of symbolic speech protected by the First Amendment and that the government could not enact a prior restraint against such speech just based on the fear that it could provoke a violent response from on-lookers. More recently, in Snyder v. Phelps, the Supreme Court set aside a civil judgment issued by a jury in Maryland against the Westboro Baptist Church in favor of the father of a fallen Marine whose funeral was protested by Westboro with its all-too-familiar signs and rhetoric. In its ruling, the Court held that the fact that Westboro’s rhetoric was highly offensive and hateful was not, in and of itself sufficient reason to exempt it from the protection of the First Amendment. In these and other cases, the Supreme Court has made clear that the mere fact that speech is offensive is not, in and of itself, sufficient justification for banning it or punishing those who might utter it in either criminal or civil Court.
Proponents of hate speech bans argue that such speech is, in fact, a form of violence. But this argument has gotten very far since most people, rightly, regard it as obscene to equate speech with violence. They have also tried to argue that hate speech constitutes “incitement”. But Volokh gets into this:
The same is true of the other narrow exceptions, such as for true threats of illegal conduct or incitement intended to and likely to produce imminent illegal conduct — i.e., illegal conduct in the next few hours or maybe days, as opposed to some illegal conduct some time in the future. But these are very narrow exceptions. Dean’s post came in response to a Steven Greenhouse tweet saying, “Free Speech Defenders Don’t Forget: Ann Coulter once said: My only regret w/ Timothy McVeigh is he did not go to the New York Times building”; but if Dean meant that such speech by Coulter is constitutionally unprotected, he’s wrong. Indeed, even if Coulter was speaking seriously (which I doubt), such speech isn’t unprotected incitement, because it isn’t intended to promote imminent illegal conduct. Compare, e.g., Rankin v. McPherson (1987), which upheld the right to say, after President Ronald Reagan was wounded in an assassination attempt, “If they go for him again, I hope they get him” — and that was in a case involving a government employee being fired for her speech; the First Amendment offers even stronger protection to ordinary citizens whose speech is more directly restricted by the government.
Returning to bigoted speech, which is what most people use “hate speech” to mean, threatening to kill someone because he’s black (or white), or intentionally inciting someone to a likely and immediate attack on someone because he’s Muslim (or Christian or Jewish), can be made a crime. But this isn’t because it’s “hate speech”; it’s because it’s illegal to make true threats and incite imminent crimes against anyone and for any reason, for instance because they are police officers or capitalists or just someone who is sleeping with the speaker’s ex-girlfriend.
There is one twist on this concept of incitement that I wanted to get into, however. One idea that has gained some credence on the Left in recent years is that even if “hate speech” doesn’t directly incite immediate violence, it can constitute stochastic terrorism. The idea of stochastic terrorism is that Right Wing politicians (and only Right Wing politicians) don’t actually incite violence directly but use charged rhetoric hoping that, in a nation of three hundred million people, this will motivate someone to engage in violence. It is most often applied to abortion foes, with critics claiming their cries of “murder” are deliberately designed to make people run out an shoot abortion clinicians (because, apparently, no one could honestly believe in their heart that abortion is murder). But we’ve seen it in other contexts as well: the Murrah Bombing being blamed on talk radio; the Giffords shooting being blamed on Sarah Palin; a census worker’s suicide being falsely attributed as homicide and blamed on census opponents. Hell, there were people who blamed the Kennedy assassination on his right-wing critics.
This theory of stochastic terrorism is, to put it mildly, manure. It is a theory designed but with one purpose: to tar the speech of people the theorists disagree with and, hopefully, silence them. And it is very easily proven.
Many years ago, talk show host Neal Boortz had a quiz on his website asking readers to figure out if passages about the environment were from Algore’s Earth in the Balance or the Unabomber’s manifesto. It was actually kind of difficult. They used the same language, the same extreme rhetoric, the same dire claims that the Earth was doomed. Yet no one would accuse Algore of “stochastic terrorism” because of the Unabomber (or any other eco-terrorist).
For the last two years, a large fraction of the Left has been calling Trump a fascist and comparing him to Hitler. If someone were to try, God forbid, to assassinate Trump, would they all be guilty of stochastic terrorism?
“Ah”, you might say, “But the difference is that this Left Wing rhetoric is right. The Earth is in danger. Trump is a fascist.”. Well, Islamic terrorism is a danger. Millions of potential human lives have been extinguished by abortion. Why is the danger you fear real and the danger others fear fake?
It is antithetical to the very concept of this nation for people to be afraid to using strong language when they fear that something very wrong is being done. I may not agree with them. And I will frequently think they are being needlessly hysterical. But if you think abortion is murder, you should be able to say so. If you think Trump is a fascist, you should be able to say so. Yes, there is always a risk that someone will take your words to heart and do something awful. But we can not let our political dialogue be set by a fear of maniacs. We can not allow a “gunman’s veto” on free speech. This is why the Courts have taken a precise view of what constitutes incitement. And it’s why they should continue to do so.
It’s strange for me to say this because I think that extreme rhetoric is a problem in American politics and that people do not need to back off and listen to each other. Debates about healthcare, taxes, terrorism, war and spending would be a lot better if they weren’t conducted in apocalyptic terms. But good manners, a sense of perspective and respectful dialogue can not be enforced with moral threats. And good dialogue does not begin with restrictions on free speech.