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Former Vermont governor Howard Dean writes:

This leads me to repeat what Ive 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 inChristian Legal Society v. Martinez(2010), the First Amendments 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 isnt 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.

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. Deans post came in response to a Steven Greenhouse tweet saying, Free Speech Defenders Dont 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, hes wrong. Indeed, even if Coulter was speaking seriously (which I doubt), such speech isnt unprotected incitement, because it isnt 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 hes black (or white), or intentionally inciting someone to a likely and immediate attack on someone because hes Muslim (or Christian or Jewish), can be made a crime. But this isnt because its hate speech; its because its 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 speakers ex-girlfriend.

The Supreme Court did, in Beauharnais v. Illinois (1952), uphold a group libel law that outlawed statements that expose racial or religious groups to contempt or hatred, unless the speaker could show that the statements were true and were said with good motives and for justifiable ends. But this, too, was treated by the court as just a special case of a broader First Amendment exception the one for libel generally. And Beauharnais is widely understood to no longer be good law, given the courts restrictions on the libel exception. See New York Times Co. v. Sullivan (1964) (rejecting the view that libel is categorically unprotected, and holding that the libel exception requires a showing that the libelous accusations be of and concerning a particular person); Garrison v. Louisiana (1964) (generally rejecting the view that a defense of truth can be limited to speech that is said for good motives and for justifiable ends); Philadelphia Newspapers, Inc. v. Hepps (1986) (generally rejecting the view that the burden of proving truth can be placed on the defendant); R.A.V. v. City of St. Paul (1992) (holding that singling bigoted speech is unconstitutional, even when that speech fits within a First Amendment exception); Nuxoll ex rel. Nuxoll v. Indian Prairie Sch. Dist. # 204, 523 F.3d 668, 672 (7th Cir. 2008) (concluding that Beauharnais is no longer good law); Dworkin v. Hustler Magazine Inc., 867 F.2d 1188, 1200 (9th Cir. 1989) (likewise); Am. Booksellers Assn, Inc. v. Hudnut, 771 F.2d 323, 331 n.3 (7th Cir. 1985) (likewise); Collin v. Smith, 578 F.2d 1197, 1205 (7th Cir. 1978) (likewise); Tollett v. United States, 485 F.2d 1087, 1094 n.14 (8th Cir. 1973) (likewise); Erwin Chemerinsky, Constitutional Law: Principles and Policies 1043-45 (4th ed. 2011); Laurence Tribe, Constitutional Law, 12-17, at 926; Toni M. Massaro, Equality and Freedom of Expression: The Hate Speech Dilemma, 32 Wm. & Mary L. Rev. 211, 219 (1991); Robert C. Post, Cultural Heterogeneity and Law: Pornography, Blasphemy, and the First Amendment, 76 Calif. L. Rev. 297, 330-31 (1988).

Finally, hostile environment harassment law has sometimes been read as applying civil liability or administrative discipline by universities to allegedly bigoted speech in workplaces, universities and places of public accommodation. There is a hot debate on whether those restrictions are indeed constitutional; they have generally been held unconstitutional when applied to universities, but decisions are mixed as to civil liability based on speech that creates hostile environments in workplaces (see the pages linked to at this site for more information on the subject). But even when those restrictions have been upheld, they have been justified precisely on the rationale that they do not criminalize speech (or otherwise punish it) in society at large, but apply only to particular contexts, such as workplaces. None of them represent a hate speech exception, nor have they been defined in terms of hate speech.

For this very reason, hate speech also doesnt have any fixed legal meaning under U.S. law. U.S. law has just never had occasion to define hate speech any more than it has had occasion to define rudeness, evil ideas, unpatriotic speech or any other kind of speech that people might condemn but that does not constitute a legally relevant category.

Of course, one can certainly argue that First Amendment law should be changed to allow bans on hate speech (whether bigoted speech, blasphemy, blasphemy to which foreigners may respond with attacks on Americans, flag burning, or anything else). I think no such exception should be recognized, but of course, like all questions about what the law ought to be, this is a matter that can be debated. Indeed, people have a First Amendment right to call for speech restrictions, just as they have a First Amendment right to call for gun bans or bans on Islam or government-imposed race discrimination or anything else that current constitutional law forbids. Constitutional law is no more set in stone than any other law.

But those who want to make such arguments should acknowledge that they are calling for a change in First Amendment law and should explain just what that change would be, so people can thoughtfully evaluate it. Calls for a new First Amendment exception for hate speech shouldnt rely just on the undefined term hate speech 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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No, Gov. Dean, there is no 'hate speech' exception to the First Amendment - Washington Post

Former Democratic presidential candidate and Democratic National Committee chair Howard Dean claimedThursday evening that speech from conservative author and commentator Ann Coulter isnot protected by the First Amendment.

Hate speech is not protected by the First Amendment, Dean tweeted in reference to Coulters scheduled speech at Berkeley, whichcampus administrators cancelled due to the threat of leftist violence.

But Eugene Volokh, a law professor at UCLA who writes the The Volokh Conspiracyblog, set things straight in a 1,300-word column for The Washington Post Friday, entitled"No, Governor Dean, 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," Volokh writes. "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."

Volokh goes on to cite major Supreme Court decisions dealing with offensive speech and the First Amendment, and clarifying that legally speaking, there is no such thing as "hate speech."

"U.S. law has just never had occasion to define 'hate speech,'" Volokh writes, "any more than it has had occasion to define rudeness, evil ideas, unpatriotic speech, or any other kind of speech that people might condemn, but that does not constitute a legally relevant category."

Dean, the former Democratic governor of Vermont, made hiscomment in reply to a tweet from someone who had written: "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 Volokh says Dean is wrong if he thinks this comment of Coulter's is not protected by the First Amendment. It is.

Best-selling author and conservative columnist Ann Coulter was scheduled to speak at the University of California, Berkeley, on April 27, but the university canceled the speech this week, saying it could not provide adequate security, given recent riots to shut down other conservative speakers,such asMilo Yiannopoulos.

Coulter subsequently told The Hollywood Reporter: "They can't stop me. I'm an American. I have constitutional rights."

The university announced it would reschedule the event for the afternoon of May 2, during final exam week, but attorneys for the groups that had invited Coulter, including Young Americans for Freedom, blasted university officials in a letter, saying it was attempting to impose "discriminatory" time and place restrictions and warned of "imminent litigation" if the university does not confirm by today, April 21, that it will cooperate with plans for the April 27 event.

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Howard Dean: Coulter's 'Hate Speech' Not Protected by First ... - LifeZette

Malik Newson, junior in journalism and mass communication, asked a crowd of students gathered on Central Campus, "What does the First Amendment mean to you?"

Let me put that in a simpler way, do you know what the First Amendment means? If you know all five of them, raise your hand, Newson said.

Awkward silence fell upon the crowd as some hastily sat on haystack seats, while others stepped closer to the podium. It gradually dawned on each of them them that Feast On the First had begun.

Celebrated with soap boxes, sidewalk chalking and free food, the event was organized by the Greenlee School of Journalism and Mass Communication to honor the First Amendment.

The amendment recognizes the freedoms of speech, press, religion, petition and assembly. Newson provided facts that he thought were vital for people to think about.

This survey had been done since 1997, and it reported that 86 percent of those who responded have favor protecting speech, while 10 percent have favor limiting speech and protecting people from hearing things that offend them, Newson said.

In the religious freedom aspects, Newson believes there should be an improvement in the current numbers.

Fifty-nine percent believe they should be allowed to freely practice the religion they want," Newson said. "I believe there are lots of religions out there, so I dont know why people would want to limit that.

Before leaving the podium, Newson left his audience with a final message that he believes all Americans should hear.

We are united under this flag because we believe that all Americans are incongruent, not similar but congruent, Newson said. Not everyone knows whats going, but we need to know that we have the First Amendment for a reason.

Jen Coppoc, professor of American Indian Studies, approached the soap box podium with a guitar.

After a three-minute acoustic performance of Cheers to Someday, a song she wrote to commemorate the regrets of losing those who were once dear to us, Coppoc recounted her time at the Dakota Access pipeline protests.

I knew better as an outsider than to insert myself and so I wasnt going to participate in this direct action, and I didnt know what it was because I had just arrived to camp," Coppoc said. "I wasnt yet oriented, so I wasnt going to be a part of it.

Those who did participate went to the far side of camp where there was a little body of water [that] had burial sites on it. So the group of water protectors came together to build a bridge across this body of water to get to the island, to bring elders to do the ceremony.

However, above the protesters stood law enforcement officers with guns and rubber bullets, ready to fire upon them.

Its important to remember that this was happening on Thanksgiving Day, Coppoc said. They continued building, crossed the island and held the ceremony against the instructions and threats of law enforcements.

As a result of the protesters persistence, the camp was alerted by Lakota horse riders that law enforcement officers threatened a raid upon the camp.

And it was beginning to snow that day," Coppoc said. "And I ran because they said your life depended on this. I ran to the dome and I stood there with native and non-native women and children. But the rest of us, especially those who have knowledge of Native American history, stood there weeping because we were remembering Wounded Knee.

For Coppoc, the experience was eye-opening and taught her some valuable things about time and history.

The event further welcomed other speakers at the soap box, including Austen Giles, who was president of the group ISU 4 Trump.

Giles emphasized the significance of challenging ones mind in terms of freedom of speech.

My neighbor votes for someone else, and then Im pissed at him? I just dont get that, Giles said.

Giles said voting for a candidate should not interfere with how people treat one another.

He also recounted the times that people had thrown insults, cusses and other abusive language on social media.

Giles was supposed to host a Milo Yiannopoulosevent on campus that was later cancelled.

The university didnt want to cancel my event but they want to use mafia tactics, Giles said. Im just asking you to take the time to listen to my ideas and challenge yourself.

Michael Norton, university counsel, also took over the soap box.

He said the university respects the freedom of speech and encourages it for every individual.

He further addressed the Milo event cancellation, which was supposed to occur at a reasonable fee because the organization was not student based.

They chose to not to pay the fee," Norton said. "If they had paid the fee, the event will definitely had happened."

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Greenlee School celebrates First Amendment Rights by utilizing them - Iowa State Daily

College is often talked about as grounds for pushing boundaries, being exposed to new perspectives and sticking up for what you believe in. Its a place where many start to identify that some of their beliefs dont align with their parents, friends or peers. Its a place where many identify where their political, religious or social views stand. Its a place where we are bombarded with diverse thinking and life experiences that help educate us.

But it is not the space of a public university itself that enables such opportunities, but rather the First Amendment and its freedoms accessible across the United States.

Today, Iowa State once again celebrates these freedoms through the annual First Amendment celebration. The event is meant to remind us that most of us use our freedoms of religion, press, speech, assembly and petition on a daily basis, but often take advantage of them. As a matter of proof that we often take advantage of them without knowing, statistics from a survey conducted by the Newseum Institute show that most Americans cant name all five freedoms.

In some ways it is sad that many Americans dont know the five freedoms because then we can never truly appreciate the value they provide us. The First Amendment is so ingrained in our society that protests, watchdog journalism and religious practices are just common practice. But if we dont take the time to think about what our nation would be like without them, we risk the chance of not knowing what there is to miss until its gone.

In essence, thats the very purpose of the First Amendment celebration: to recognize and celebrate our freedoms, while also recognizing that it is our duty as Americans to stand up and protect those freedoms.

Beyond this, the celebration on campus today is meant to remind us that the First Amendment is not in place simply so we can express ourselves, but so that others even those we strongly disagree with may do so as well. The celebration is just as much about the fact that we can express ourselves as it is about living in a society where we are constantly exposed to differing perspectives that help enrich our nation.

It is because of the First Amendment that we can stand up and fight in the face of injustice without fear of the government prohibiting us from doing so. It is also because of the First Amendment that we can stand up and say that we want to keep our traditional values without the government prohibiting us from doing so.

The First Amendment is arguably the most necessary part of an effective democracy and an American society that all citizens can participate in. It's necessary for all American communities, including the Iowa State and Ames communities, to function to their fullest potential.

But if we dont take the time to celebrate this, to think of our lives without these freedoms and to understand that each day we face opposition to holding these freedoms we could lose them without even knowing.

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Editorial: Celebrate the First Amendment - Iowa State Daily

Supreme Court Hears Major First Amendment Case

This week the U.S. Supreme Court heard oral arguments in a major religious liberty case, and a number of observers are hopeful the justices will rule in a way honoring the equality of religious citizens. Trinity Lutheran Church of Columbia v. Comer features a Missouri church-run preschool that was discriminated against in a public playground re-surfacing program by the state of Missouri solely because it is a religious entity. Even though the preschool ranked as a highly qualified candidate for a grant under the programs rules, the state cited a provision in its constitution known as a Blaine Amendment that prohibited it from supplying aid to a religion.

Representing Trinity Lutheran Church before the Court was NRB member Alliance Defending Freedom (ADF). ADF Senior Counsel David Cortman told the justices that Missouri had conceded that his client being a church is what led to its denial of the playground re-surfacing benefit. This admitted discrimination against religion violates this court's free exercise principles, he said.

Judging by their questions, a number of the justices seemed uncomfortable with the position of the state. Justice Samuel Alito pressed on whether houses of worship should be left out of security and post-terrorism rebuilding programs. The states attorney, James Layton, replied, In the State of Missouri, it would not be permitted, provided that those were actually church buildings. Reacting to the states arguments, Justice Elena Kagan said, As long as you're using the money for playground services, you're not disentitled from that program because you're a religious institution doing religious things. And I would have thought that that's a pretty strong principle in our constitutional law.

Justice Sonia Sotomayor sounded perhaps most sympathetic to Missouris argument. Notably, she raised the idea that the preschool would not be denied a playground by not getting a state grant. The state simply didnt want to give money to the church. However, Cortman responded, There's government coercion when you say there's a public benefit, and the only way you could receive that public benefit is if you do not exercise your religion.

After the oral arguments, Annette Kiehne, director of the preschool, told reporters, Here is something you learn very quickly, working with children: A kid is a kid. Playground time, for a child, is about play. And play should be safe; safety shouldnt hinge on whether a child is religious or they are playing on a playground at a religious school or at a secular or public institution. She added, We arent asking for special treatment. We are just asking to not be treated worse than everyone else.

At a rally on the Supreme Court steps during the oral arguments, NRB President & CEO Dr. Jerry A. Johnson said, People of faith, religious people, are not second-class citizens. He demanded, Supreme Court, its your job to stop the bullies there is a bully on the playground the state of Missouri. Stop them. Make this right.

Notably, last April, NRB joined several other organizations in filing an amicus curiae (friend of the court) brief pushing back on this example of government discrimination against people of faith. A final ruling on the case is likely to come in June.

By Aaron Mercer, Vice President of Government Relations

Published: April 21, 2017

Excerpt from:
Supreme Court Hears Major First Amendment Case - NRB Today