Howard Dean's Reliance on Chaplinsky Is Misplaced

As Kira Davis rightly noted yesterday, Howard Dean appears to be confused about the First Amendment and what it protects. (Hint: It isn’t just speech with which he — or any of us — agrees.)

So when he tweeted:

in response to the ongoing Ann Coulter Berkeley speech kerfuffle, he was met with a fair amount of pushback on Twitter. Dean further defended his position this morning with this tweet:

Props to the Gov for the early morning* SCOTUS tweet.  (Perhaps a certain early morning tweeter at 1600 Pennsylvania could take some pointers.)  That said, his reliance on Chaplinsky is misplaced.

In 1942, the Supreme Court upheld the conviction of a New Hampshire man who was arrested and charged with violating a state statute prohibiting offensive speech directed at others in a public place. Walter Chaplinsky was accused of verbally assaulting the town marshall, allegedly stating, “You are a God-damned racketeer” and “a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists.” Not nice things to say to someone, no matter the circumstances.  But I expect most of us familiar with life in the 21st Century find the notion of being arrested and fined purely for cursing at someone — even (or perhaps especially) a law enforcement officer — and calling them names rather…quaint.

Mr. Chaplinsky appealed his conviction, asserting that the statute violated his rights under the First and Fourteenth Amendments. Nevertheless, the Court found the statute constitutional, noting, “that the right of free speech is not absolute at all times and under all circumstances.” The Court further observed that “certain well-defined and narrowly limited classes of speech,” including “‘fighting’ words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace…are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”

Thus, the take away from Chaplinsky is that “fighting words” are among the types of speech not protected by the First Amendment and may, therefore, be regulated.  Presumably, Dean is equating Coulter’s “hate speech” with “fighting words.” But he’s also seemingly advocating prior restraint of that speech, rather than punishing it after the fact.  More importantly, as I pointed out to him in response to his tweet this morning:

(He hasn’t responded. I’m sure he’s busy searching for a case in which it has. /sarc)

As discussed in the Harvard Law Review article to which I linked, the Court hasn’t upheld a conviction under the fighting words doctrine in the (now 75) years since.  Rather, it has significantly narrowed the scope of its application.  Eugene Volokh further expounded upon this in his early morning piece at the Washington Post. Simply put, most offensive speech — even bigoted, hateful speech — is, indeed, protected by the First Amendment.  So, Dean’s attempt to shore up his assertion by citing Chaplinsky falls flat. And I say this as someone who is no fan of Ann Coulter or much of what she has to say.


*While perusing his Twitter timeline to obtain links to the tweets I cited, I discovered he initially cited Chaplinsky late last night. Still, regardless of the time of day, I give him props for tweeting about Supreme Court precedent rather than “fake news”.   Wait….