Even left-wing Politifacttook issue with Dean’s claim, bluntly calling it
“false.” Politifact noted:
There are some exceptions to the free speech clause in the First Amendment, but "hate speech" is not one of them. The Supreme Court has repeatedly held up the right of an individual or group to engage in speech that much of the public likely finds offensive, like displaying swastikas, burning crosses or protesting a soldier’s funeral.
Politifact also quoted James Weinstein, from Arizona State University’s
Sandra Day O’Connor Law School, asserting, “It would be unconstitutional to
ban someone from putting a racial epithet on a sign at a protest. But if someone
used the same racial epithet while credibly saying they plan to harm someone
of that race, that might count as a threat and therefore lose its First
Amendment protection. But the speech loses the protection because it’s a
threat, not because it’s hate speech.”
Although criticism in droves was hurled at Dean for his comment last week,
he had no problem doubling down on Sunday:
First of all, several things to think about: one: The United States has the most far-reaching protections on speech of any country in the world; two: it’s not absolute. Three: there are three court cases, Supreme Court cases that you need to know about. One: the most recent, is a John Roberts opinion that said that the Phelps people, that church out in Kansas, had the right to picket horrible, offensive signs military funerals. Two: in 2002, there was a Supreme Court said that cross-boarding was illegal because it could incite violence, and three: the Chaplinsky case in 1942 said that state speech was not permitted if it included “fighting words” that were likely to incite violence.
So this is not a clear-cut carrying on the way the way the Right did; the Right loves to deal to be able to say anything they like that no matter how offensive it is. Well, Ann Coulter has used words that you cannot use on television to describe Jews, blacks, gays, Muslims, immigrants and Hispanics. I think there’s a case to be made that that invokes the Chaplinsky decision, which is “fighting words, likely to incite violence,” and I think Berkeley is within its rights to make the decision that it could put their campus in danger to have her there. I’ll be the first to admit it’s a close call.