Glenn Harlan Reynolds

I tell my constitutional law students that there are a couple of statements that indicate that a speaker is a constitutional illiterate who can safely be ignored. One is the claim that the Constitution views black people as ⅗ the worth of white people (actually, it was all about power in Congress, with slaveowners wanting black people to count 100% toward apportionment so that slaveowners would get more seats in Congress, and abolitionists wanting them not counted at all so that slaveowners would get fewer seats in Congress; the ⅗ compromise was just that, a compromise).

The other hallmark of constitutional illiteracy is the claim that the First Amendment doesn’t protect “hate speech.” And by making that claim last week, Howard Dean, former governor of Vermont and Democratic presidential candidate, revealed himself to be a constitutional illiterate. Then, predictably, he doubled down on his ignorance.

In First Amendment law, the term “hate speech” is meaningless. All speech is equally protected whether it’s hateful or cheerful. It doesn’t matter if it’s racist, sexist or in poor taste, unless speech falls into a few very narrow categories — like “true threats,” which have to address a specific individual, or “incitement,” which must constitute an immediate and intentional encouragement to imminent lawless action — it’s protected.

The term “hate speech” was invented by people who don’t like that freedom, and who want to give the — completely false — impression that there’s a kind of speech that the First Amendment doesn’t protect because it’s hateful. What they mean by “hateful,” it seems, is really just that it’s speech they don’t agree with. Some even try to argue that since hearing disagreeable ideas is unpleasant, expressing those ideas is somehow an act of “violence.”

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There are two problems with that argument. The first is that it’s idiotic: That’s never been the law, nor could it be if we give any value to free expression, because there’s no idea that somebody doesn’t disagree with. The second is that the argument is usually made by people who spend a lot of time expressing disagreeable ideas themselves, without, apparently, the least thought that if their own rules about disagreeable speech held sway, they’d probably be locked up first. (As Twitter wag IowaHawk has offered: “I'll let you ban hate speech when you let me define it. Deal?”)

The response to Dean was merciless: First Amendment law expert Eugene Volokh responded, "No, Gov. Dean, there is no ‘hate speech’ exception to the First Amendment.” If there were, neither the Westboro Baptist Church — whose hateful speech the Supreme Court recently held protected — nor the many people referring to Trump supporters as Nazis and “deplorables” would enjoy free speech.

As Volokh writes, if people want “hate speech” to be unprotected, they’re calling for a change to the First Amendment, and it’s a big one. They should not only admit that, “they should explain just what viewpoints the government would be allowed to suppress, what viewpoints would remain protected and how judges, juries and prosecutors are supposed to distinguish the two. And claiming that hate speech is already 'not protected by the First Amendment,' as if one is just restating settled law, does not suffice.”

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Dean then doubled down with the constitutional illiterate’s usual fallback, that you could ban “hate speech” as “fighting words” under the 1942 case of Chaplinsky v. New Hampshire, which allows a ban on “fighting words.” (Journalist Dan Gillmor commented: “Disappointing, to say the least, to see Dean digging the hole deeper on his flatly incorrect original statement.”)

But “fighting words” aren’t hate speech. Fighting words are direct, person-to-person invitations to a brawl. Expressing political or social views that people don’t like isn’t the same thing, even if people might react violently to those views.

And that’s good. If, by reacting violently to views they didn’t like, people could get the government to censor those views as “hate speech” or “fighting words,” then people would have a strong incentive to react violently to views they don’t like. Giving the angry and violent the ability to shut down other people’s speech (the term we use for this in constitutional law, Gov. Dean, is “heckler’s veto”) is a bad thing, which would leave us with a society marked by a lot more violence, a lot more censorship, and a lot less speech.

Is that really what you want? Because that’s what we’d get, if we followed the advice of constitutional illiterates.

Glenn Harlan Reynolds, a University of Tennessee law professor and the author of The New School: How the Information Age Will Save American Education from Itself, is a member of USA TODAY's Board of Contributors.

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