Law

Missing the Whole Point About Ann Coulter

Howard Dean said she didn't have constitutional right to speak at Berkeley. He was wrong.

Speaking her mind.

Photographer: Chip Somodevilla/Getty Images

Howard Dean is ignoring the “law of holes”: If you’re in one, stop digging.

The former Democratic governor of Vermont and former chairman of the Democratic National Committee waded into the controversy over the cancellation of a speech by Ann Coulter at the University of California at Berkeley -- a cancellation prompted by fears that protesters against her will turn violent. (After a few twists and turns, it appears that the speech is still off.)

Dean said that the First Amendment does not protect “hate speech”: an extravagantly false statement. Many legal experts explained the point.

Eugene Volokh, a libertarian professor at the UCLA School of Law and an expert on free speech, pointed out that “hate speech” is not even a legal concept in America. “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.”

Unwilling to concede defeat and move on, Dean then cited in his defense three Supreme Court precedents that don’t mean what he claims they do. None of the cases even concerned “hate speech,” let alone licensed restrictions on such speech.

Two of the decisions struck down restrictions on free speech, cutting against Dean’s case. The third decision, as Volokh patiently explained after Dean invoked it, allowed restrictions only on “fighting words”: “personally addressed face-to-face insults that are likely to start an imminent fight.”

Dean has a history of ill-considered remarks that embarrass other liberals. One peculiarity of his latest ones is that this botched foray into constitutional law was entirely unnecessary. If Dean wanted to defend not giving Coulter an opportunity to speak on campus, he could have just said that Coulter adds little of value to any debate, and students and administrations should therefore not invite her to give speeches.

Many people would beg to differ with that argument -- Coulter’s career shows that an enormous number of people are very interested in what she has to say 1 -- but it’s one that raises no constitutional problem. Nobody is arguing that any college in America has a constitutional obligation to listen to Coulter. Dean didn’t have to bring up the Constitution at all to make his case against her.

And what if Dean were right about the Constitution? In that case, legislatures would have the authority to deliberate about what kinds of speech were sufficiently hateful to be restricted and what kind of restrictions should be put in place, and authorities would then implement any resulting laws in a deliberate manner. Those laws would, presumably, not simply license riots against certain speeches or the use of threats of riots as a veto on those speeches.

There's a worthwhile debate to be had over how universities should exercise the wide discretion that they unquestionably have over which speakers to host. That debate implicates important questions about what the mission of a university should be. But thinking through those questions is harder and less satisfying than choosing a side in a fight and claiming the Constitution for it.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

  1. I should note that she once kindly blurbed a book I wrote.

To contact the author of this story:
Ramesh Ponnuru at rponnuru@bloomberg.net

To contact the editor responsible for this story:
Katy Roberts at kroberts29@bloomberg.net

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