Suggestion: Howard Dean should debate Eugene Volokh at the Newseum, or at the National Constitutional Center, and/or on air — say, on CNN’s The Lead with Jake Tapper or Fox’s Tucker Carlson Tonight or on MSNBC’s Morning Joe or elsewhere. Here is why I suggest this.
The Berkeley controversy began with a back-and-forth over cancelling and then postponing Ann Coulter’s speech at the very campus known for launching its own free-speech movement.
Then Ms. Coulter ratcheted it up a bit more with this tweet: “I’m speaking at Berkeley on April 27th, as I was invited to do and have a contract to do.”
Most recently, a First Amendment lawsuit was filed as this controversy continues to prompt ideological posturing.
Earlier, and on a related from, Steven Greenhouse weighed in with a tweet: “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.”
→ Now onto the reason why I suggest a Dean-Volokh on-air debate.
Apparently, Greenhouse’s tweet got Howard Dean’s juices flowing, so he took to Twitter:
Not to let such an assertion pass uncontested, Professor Eugene Volokh added this to the mix:
“This leads me to repeat what I’ve said before: There is no hate speech exception to the First Amendment. Hateful ideas (whatever exactly that might mean) are just as protected under the First Amendment as other ideas. One is as free to condemn, for instance, Islam — or Muslims, or Jews, or blacks, or whites, or illegal immigrants, or native-born citizens — as one is to condemn capitalism or socialism or Democrats or Republicans. As the Supreme Court noted in Christian Legal Society v. Martinez (2010), the First Amendment’s tradition of ‘protect[ing] the freedom to express ‘the thought that we hate’ ‘ includes the right to express even ‘discriminatory’ viewpoints. (The quote comes from the four liberal justices, plus Justice Anthony Kennedy, but the four more conservative justices would have entirely agreed with this, though also extended it to university-recognized student groups’ freedom to exclude members, and not just their freedom to express their thoughts.)”
“To be sure, there are some kinds of speech that are unprotected by the First Amendment. But those narrow exceptions have nothing to do with “hate speech” in any conventionally used sense of the term. For instance, there is an exception for “fighting words” — face-to-face personal insults addressed to a specific person, of the sort that are likely to start an immediate fight. But this exception isn’t limited to racial or religious insults, nor does it cover all racially or religiously offensive statements. Indeed, when the City of St. Paul tried to specifically punish bigoted fighting words, the Supreme Court held that this selective prohibition was unconstitutional (R.A.V. v. City of St. Paul (1992)), even though a broad ban on all fighting words would indeed be permissible. . . . ”
And then this:
To which Volokh replied: , No, Gov. Dean, Chaplinsky v. New Hampshire does not recognize a ‘hate speech’ exception, The Volokh Conspiracy, Aril 22, 2017. Here are a few excerpts:
“I’m pleased to say that I have read Chaplinsky v. New Hampshire (1942), which is usually cited as recognizing a ‘fighting words’ exception to the First Amendment — personally addressed face-to-face insults that are likely to start an imminent fight are not constitutionally protected. But that has little to do with ‘hate speech’ as most people tend to use the phrase: (1) Such personal insults are constitutionally unprotected entirely without regard to whether they are bigoted. (2) Bigoted expressions of opinion that don’t involve such personally addressed face-to-face insults are constitutionally protected. (3) Indeed, statutes that target only bigoted ‘fighting words’ for special punishments are constitutionally unprotected, even if they are limited to such personally addressed face-to-face insults, see R.A.V. v. City of St. Paul (1992).”
Then on MSNBC, Mr. Dean countered: “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 you ned to know about. One, the most recent, is a John Roberts opinion that said that the Phelps people . . . had the right to picket horrible offensive [things] with signs [at] military funerals. Two, in 2002, . . . the Supreme Court . . . said that cross-buring was illegal because it could incite violence. And three, [the] Chaplinsky case in 1942 said speech was not permitted if it included fighting words that were likely to incite violence. So, this is not a clear-cut [case] . . . . Ann Coulter has used wrods that you cannot use on television to describe Jews, Blacks, gays, Muslims and Hispanics — I think there is a case to be made that invokes the Chaplinsky decision, which is fighting words, likely to incite violence. And I think Berkeley is with its rights to make the decision that it puts there campus in danger if they have her there.”
“I’ll be the first to admit, it’s a close call, it’s a close call,” he added.
* * * * * *
↑→ For a refutation, see Jim Geraghty, Howard Dean’s First Amendment, National Review, April 24, 2017
Related: Marc Randazza, Dear Berkeley: Even Ann Coulter deserves free speech, CNN, April 24, 2017
Did anti-Trump protestors violate his First Amendment rights?
This from Politico’s Kenneth Vogel: “President Donald Trump’s lawyers argued in a Thursday court filing that protesters “have no right” to “express dissenting views” at his campaign rallies because such protests infringed on his First Amendment rights.The filing comes in a case brought by three protesters who allege they were roughed up and ejected from a March 2016 Trump campaign rally in Louisville, Kentucky, by Trump supporters who were incited by the then-candidate’s calls from the stage to ‘get ’em out of here!’ Lawyers for Trump’s campaign have argued that his calls to remove the protesters were protected by the First Amendment. But the federal district court judge hearing the case issued a ruling late last month questioning that argument, as well as the claim that Trump didn’t intend for his supporters to use force.”
“Of course, protesters have their own First Amendment right to express dissenting views, but they have no right to do so as part of the campaign rally of the political candidates they oppose,” Trump’s lawyers told Newsweek.
→ Defendants’ motion to certify an interlocutory appeal in Nwanguma et al v. Donald Trump, President of the United States (Dist. Ct.,, W.D., KY, 2017).
→ R. Kent Westberry is counsel for Donald Trump, both as President and individually.
“The Trump Defendants request that the Court certify the following issues:
- Whether the First Amendment protects Mr. Trump’s campaign speech as a matter of law, or whether the speech falls within the narrow category of expression that can be subject to censorship for ‘inciting a riot’
- Whether the First Amendment precludes holding a speaker liable for negligently causing others to engage in violence.”
President Trump makes an argument already rejected by the court. The court ruled that the anti-Trump protesters did have a right to attend the rally since they obtained tickets and were allowed to enter by organizers. The court said they were not trespassers. Once inside, the protesters did have a First Amendment right to peacefully protest. Organizers had the right to eject them, but not violently.
→ Related: Noah Feldman, Trump Lawyers Get Creative With First Amendment, BloombergView, April 24, 2017
Justice Department targets Assange . . . & other leakers Read More