//  4/25/17  //  In-Depth Analysis

Cross-posted from Dorf on Law

A student group at UC Berkeley invited Ann Coulter to speak. The event was cancelled due to ostensible security concerns in circumstances that led most reasonable observers (including me) to conclude that a substantial part of the reason Coulter was uninvited was the unpopularity of her views. There followed a round of condemnation of Berkeley and the presumably liberal "snowflake" millennial students who can't handle speech that spreads messages they find offensive, with the condemnation coming not only from the right but also from people who strongly disagree with Coulter (e.g., Coulter's fellow Cornell alum Bill Maher).

Enter Howard Dean, who defended Berkeley's rescission of its invitation on the ground that "hate speech is not protected by the first amendment." Numerous commentators correctly pointed out that under existing case law hate speech is protected by the First Amendment, with a Volokh Conspiracy piece by Eugene Volokh laying out the basics effectively.

Dean doubled down, citing a 1942 case, Chaplinsky v. New Hampshire as supposed authority for the view that the First Amendment does not protect hate speech. Dean is clearly wrong about Chaplinsky, however.

And so we learn that a medical doctor who served as governor of Vermont does not know a whole lot about constitutional doctrine. Quelle surprise! This episode would be mildly amusing, were it not for the fact that as a story of ignorance in high places it seems wholly inconsequential when compared to the fact that we have a former real estate developer/reality tv star for a president, and he does not even know how many articles the Constitution contains, much less what any of them says.

Turning back to Dean, we can grant that he was clearly wrong in his description of current case law. But the issue he raised is more complicated than the legal and journalistic establishment seem prepared to acknowledge.

U.S. free speech case law is an outlier within the democratic world. National constitutions and treaty documents protecting free speech and free press in virtually every other democratic country protect free speech but subject it to being overridden in order to protect vulnerable individuals and groups against hatred and ridicule.

Canada is an instructive and fairly typical example. The Charter of Rights and Freedoms (Canada's equivalent of the U.S. Bill of Rights plus Fourteenth Amendment) protects, among other things, "freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication," which, like all Charter rights, are "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." On its face, that language is not very different from how the U.S. Supreme Court has construed our First Amendment. Although the language of the latter makes no express exceptions (as Justice Hugo Black was fond of saying), case law does: laws that restrict speech based on content must be "narrowly tailored to advance a compelling interest."

To be sure, our Supreme Court has construed its judge-made strict scrutiny test more strictly than the Supreme Court of Canada has construed the language of the Charter. Thus, in the 1990 decision in Canada (Human Rights Commission) v. Taylor, the Supreme Court of Canada upheld the use of the Canadian Human Rights Act to proscribe non-violent "statements denigrating the Jewish race and religion" against a challenge under the Charter. In 2013, the Supreme Court of Canada upheld the application of the Saskatchewan Human Rights Code to an anti-gay pamphleteer. By contrast, similar challenges under the First Amendment would have succeeded in the U.S.

Although the U.S. thus clearly differs from other democracies in its protection for hate speech, there does not appear to have been anything inevitable about American free speech exceptionalism. A different U.S. Supreme Court could well have gone the route that Canada and just about every other democratic country has gone. In 1918--just a few years before he would come to be lionized as a free speech hero--Oliver Wendell Holmes, Jr. wrote in a letter to Learned Hand that, so far as Holmes was concerned, free speech "stands no differently than freedom from vaccination." Even as a description of U.S. free speech case law, that statement would continue to be true until roughly the 1950s. Had the ensuing years unfolded a bit differently, it might still be true today. American free speech exceptionalism may simply be a historical accident.

Indeed, the protection for hate speech under the First Amendment is something of a double accident. The SCOTUS could have said--as its Canadian counterpart said in Taylor--that regulations of hate speech infringe free speech but that they do so justifiably in light of the harm hate speech does. Or the SCOTUS could have ruled that hate speech falls into an unprotected category in the way that obscenity, fighting words, and incitement do. True, in 2010 in United States v. Stevens, the SCOTUS said that the list of unprotected categories was based on history, but that claim is, not to put to fine a point on it, false (as my colleague Steven Shiffrin amply demonstrates in his 2016 book What's Wrong With the First Amendment). A different Supreme Court might well have recognized hate speech as categorically unprotected.

Thus, commentators who treat American free speech doctrine as a beautiful well-integrated edifice that would crumble were hate-speech excepted from protection are wrong. Free speech doctrine contains a few organizing principles but, like most complex areas of the law, also includes a hodgepodge of exceptions and somewhat arbitrary lines. Carving out hate speech would no doubt require more such lines, but as experience in other countries that we generally regard as small-l liberal and small-d democratic shows, doing so would not be the end of free speech in America.

France is a case in point. As yesterday's first-round presidential election result showed, France's hate speech law did not prevent effective political organizing by Marine Le Pen and her National Front party. She will likely lose the runoff, but that has nothing to do with the regulation of hate speech. Popular support for the National Front's political programs--like restricting immigration and exiting the EU--may in fact be driven by racism, but so long as politicians avoid expressing their support for the program in expressly racist terms, they can thrive. The rise of right-wing populism in Europe more or less simultaneously with its rise in the U.S. undercuts the notion that hate speech regulation stifles political discourse. Of course it is possible for a country to use hate speech laws pretextually to suppress dissidents or to go too far in other ways, and one can point to particular troubling examples, but on the whole, the experience of the democratic world in the last seven decades shows that hate speech regulation can be consistent with liberal democracy.

To be clear, none of the foregoing is meant to suggest that I actually prefer the European/Canadian approach to hate speech to the American approach. I don't.

I would also note that the threat to free speech by Coulter and other right-wing speakers is chiefly coming from private actors threatening violence. Whatever one's views about regulating hate speech, those actors must be condemned. Insofar as Howard Dean's tweets could be seen as endorsing the threatened use of violence against unpopular speakers, Dean should also be condemned. I think it highly unlikely that Dean intended to convey support for violent suppression of Coulter's views, but if he did, I hereby condemn him along with anyone who threatens violence in response to unpopular or offensive views.

Still, the matter of hate speech regulation more generally persists. I raise that more general issue in order to question the response of legal elites to Dean's broader implications. My point is that we oughtn't to confuse the familiar with the necessary.

American lawyers who went to law school in the last sixty years--which is to say just about all current American lawyers--were educated to believe that protection for the thought we hate is the central principle of the First Amendment and that hate speech regulation is inimical to such protection. One might even say we were indoctrinated in this belief. It is therefore understandable that we find it natural. Thus, ironically, an indoctrinated belief about free speech leads American lawyers to dismiss without even considering the idea that regulation of hate speech could be consistent with liberal democracy. Yet a culture of free speech is supposed to make us more, not less, open to ideas that we find unfamiliar.

American constitutional protection for hate speech might not last forever. We have seen before how a fringe idea about the Bill of Rights can become mainstream. Fifty years ago, if a politician or other prominent figure pronounced that "private handgun possession is protected by the second amendment," constitutional scholars would have written op-eds patronizingly explaining that the case law rejects this view. Then a coordinated political, social, and scholarly movement sought to change that reality, eventually succeeding when the Supreme Court endorsed the formerly dissident view of the Second Amendment in 2008 in District of Columbia v. Heller.

Something similar could happen with respect to hate speech. A movement to treat hate speech as beyond the pale--perhaps as part of a backlash against Trumpism--could, given enough time, result in political changes and transformative judicial appointments. A SCOTUS majority might then announce that when it comes to hate speech, the U.S. is not an exception to the rest of the democratic world after all. At that point, Howard Dean would seem less like a constitutional ignoramus and more like a prophet.

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