This is a moment of extreme hyperbole in America, with words like "fascism" and "Russian coup" mixing in seamlessly in our superlative-heavy political discourse with "creeping sharia" and "Mexican invasion." But perhaps no phrase is deployed as recklessly as "hate speech," a nebulous non-legal term of which there is no agreed-upon definition.
While neither red nor blue America has a monopoly on trying to use the force of government or the violence of the citizenry to silence its opponents, the idea that the most vulnerable among us can be protected from the wounds of "hate speech" through loopholes in the First Amendment has been gaining disquieting momentum among liberal thinkers who should really know better.
Howard Dean recently demonstrated his mangled misunderstanding of Supreme Court jurisprudence when he followed up a widely mocked tweet asserting hate speech is not protected by the First Amendment with later tweets and media appearances in which he repeatedly cited a Supreme Court decision that deemed certain speech to constitute "fighting words." The physician and former DNC chair was arguing that conservative gadfly Ann Coulter's well-worn shtick constitutes both "hate speech" and "fighting words," and is therefore not constitutionally protected.
That is simply nonsense.
"Hate speech" as a legal concept does not exist, which is a good thing, because hate is subjective and anything from the most vile forms of bigotry to opposition to abortion to support for gay rights to criticism of religious institutions have all been deemed beyond the pale of public discourse by various groups and individuals. Offensiveness lies in the eye of the beholder. Thankfully, the right to express offensive ideas persists.
To be clear, there are jerks out there who have no desire to engage in good faith debating and who profit off of deliberately causing offense, the receipt of which only makes them more popular with their audiences. They promote noxious ideas and stand on "free speech" the way a child would claim to be standing on "base" in a backyard game of tag. Coulter is one of these jerks, and one only needs to recall the outrage she helped stoke over a Muslim community center opening a few blocks from the World Trade Center back in 2010 to be aware of how little she truly values free speech, freedom of religion, and private property rights when she and her comrades demanded the "Ground Zero mosque" be stopped.
These characters might not "deserve" free speech, but they are entitled to it. Rights are not earned by the righteousness of one's values. They're just rights. And the right to freedom of expression is the tool that cultivated the fight to win every civil right in this country's history. There is no civil rights movement, no gay rights movement, no feminist movement, and no anti-war movement without broad free speech protections for unpopular expression.
The good isn't safe unless the bad is, too.
Considering the former governor of Vermont made his name on the national stage as the most strident anti-war candidate of the 2004 presidential campaign, it's particularly ironic that Howard Dean would cite Chaplinsky v. State of New Hampshire, a case centering around a Jehovah's Witness named Walter Chaplinsky who had been passing out anti-WWII materials, attracted a hostile crowd, and then was arrested after a town marshal deemed him to be the cause of the unrest. What "fighting words" did Chaplinsky utter? He called the marshal "a damned fascist."
Never mind the details of the case or how many anti-war protesters have used that other "f word" to describe any number of people both in and out of government. Dean's citing of Chaplinsky ignores the history of the Supreme Court repeatedly clarifying and narrowing the definition of "fighting words," as well as the fact that the Court has never cited the case as a precedent to curtail freedom of speech. In fact, some legal scholars even consider the fighting words exception to be for all intents and purposes a pile of dead letters, if not explicitly overturned by the Court.
Though Dean would like to believe Coulter's tasteless musing about wishing Oklahoma City bomber Timothy McVeigh had instead targeted The New York Times is unprotected speech, it is. Like a great deal of Coulter's output, it is mean-spirited and — if intended as a joke — of miniscule satirical value. But the right to speech does not require a value test. And yet, a value test is exactly what was advocated in The New York Times recently by NYU vice provost and professor Ulrich Baer:
The idea of freedom of speech does not mean a blanket permission to say anything anybody thinks. It means balancing the inherent value of a given view with the obligation to ensure that other members of a given community can participate in discourse as fully recognized members of that community. [The New York Times]
This appears to be a wish-fulfillment fantasy on the part of Baer, because the freedom of speech requires no "balance" or "obligation to ensure" anything, primarily because someone would have to determine when sufficient "balance" had been achieved. Who does Baer think should be the arbiters of such balance? Why, right-thinking administrators like himself, who breathlessly determine that "there is no inherent value to be gained from debating" certain ideas in public.
Australian professor Robert Simpson, in a recent article at Quartz, also advocated for benevolent authority figures separating "good speech" from "bad speech." After cursory nods to the value of the right to free expression unencumbered by government interference or violent mobs ("Free speech is important … However, once we extrapolate beyond the clear-cut cases, the question of what counts as free speech gets rather tricky"), Simpson argues for putting "free 'speech' as such to one side, and replace it with a series of more narrowly targeted expressive liberties."
Like Baer and Dean, Simpson assumes that those in power will always be as right-thinking as he, and that if the price of squashing the Ann Coulters of the world is abandoning the principle of universal free speech so long as it doesn't rise to direct threats or incitement to violence, well, that's a price they're willing to pay.
Erstwhile anti-war presidential candidates and distinguished professors should know better than to put their faith in authority when it comes to the competition of ideas. That they don't shows how little faith they have in the ability of the "good" to beat the "bad." Call me a hopeless optimist, but the value of robust free speech — especially the right to offend — has helped to facilitate the changing of minds regarding civil rights and has helped end or stop wars. That's why free speech, and not well-meaning censorship, will continue to be perhaps our greatest bulwark to tyranny.
This country has seen bigger threats to the republic than Ann Coulter and her ilk, and we should resist the urge to use state power or approvingly wink at masked, firework-wielding LARPers from creating "security threats" that prevent her from plugging a book to a few dozen young Republicans and a few hundred protesters on a college campus.