The Corner

Politics & Policy

Howard Dean Is Peddling ‘Hate Speech’ Hogwash

This again, and from a former governor no less:

This is incorrect, and dramatically so. There is no such thing as “hate speech” in American jurisprudence, nor is there any associated or comparable principle that comes close to it. Whatever moral determinations an individual might make about the hatefulness of a given set of words, there is simply no mechanism by which the government can back him up with force. In the United States, there is speech, and then, at the bleeding edge, there are incitement, obscenity, and libel. Contrary to Dean’s implication, none of this country’s “beyond-free-speech” categories are defined by subjective judgments such as “hatefulness,” “cruelty,” or “divisiveness,” and for good reason: If they were, we would all suffer under an effective Heckler’s Veto, and there would be no point in our having protections in the first instance.

It is often lost on the uninformed just how extraordinary are this country’s free speech protections. The stupidity of her comment notwithstanding, Ann Coulter is entirely free in America to say that she wishes the New York Times had been bombed, and she is free to do so without fear of recriminations or ill-treatment by the government. Indeed, Coulter is free to say far, far worse things than she has. With impunity, she could say that she thinks that slavery was a good idea; that the Holocaust didn’t happen; that blacks or Hispanics or Jews are genetically inferior to whites; that Iran has the correct policy toward gays — and that America should adopt it; that Asians should be ineligible for immigration; that the Nazis had it right, all told; and, even, that it would be a good thing if Americans staged a revolution. Under the Brandenburg standard, she couldn’t phrase her words in such a way as to incite imminent lawbreaking — there is a difference between saying “I think the government should be overthrown” in the abstract, and saying to a group of armed rebels, “Meet me in a hour, let’s overthrow the government” — but what constitutes “imminence” and “incitement” is extremely narrowly drawn, and, in any case, “hate” doesn’t enter into it. As has been shown time and time again — including recently in a case that involved the rights of the Westboro Baptist Church to picket funerals — were Howard Dean to bring his theory to the courts, he would be swiftly laughed out of them.

And so he should be. I am no fan of Ann Coulter’s, and nor am I impressed by the turn that certain self-described “conservatives” have taken toward turning the movement into a haven for the worst sort of trolls. But if I have to choose between the people who say rotten things and the people who want to point bayonets at them, I’ll pick the former every time. That I’m being asked to make that choice illustrates the profound mistake that the contemporary Left is making on this question at present.

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