Former Vermont governor Howard Dean defends his statement that “Hate speech is not protected by the first amendment” by saying:
For WAPO and others raising issues about hate speech not being constitutionally protected, read “Chaplinsky v New Hampshire SCOTUS 1942
— Howard Dean (@GovHowardDean) April 22, 2017
I’m pleased to say that I have read Chaplinsky v. New Hampshire (1942), which is usually cited as recognizing a “fighting words” exception to the First Amendment — personally addressed face-to-face insults that are likely to start an imminent fight are not constitutionally protected. But that has little to do with “hate speech” as most people tend to use the phrase: (1) Such personal insults are constitutionally unprotected entirely without regard to whether they are bigoted. (2) Bigoted expressions of opinion that don’t involve such personally addressed face-to-face insults are constitutionally protected. (3) Indeed, statutes that target only bigoted “fighting words” for special punishments are constitutionally unprotected, even if they are limited to such personally addressed face-to-face insults, see R.A.V. v. City of St. Paul (1992).
Sometimes, I’ve seen people cite Chaplinsky for the proposition that even general expressions of opinion are unprotected simply because they might yield a violent reaction. But while one can read Chaplinsky itself this way, later precedents make clear that this is not the law. Cohen v. California (1971) is the clearest example: Cohen was convicted for wearing a jacket that said “Fuck the Draft,” but the Court rejected the view that the conviction could be upheld on the grounds that the statement was “fighting words”:
This Court has also held that the States are free to ban the simple use, without a demonstration of additional justifying circumstances, of so-called “fighting words,” those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction. Chaplinsky v. New Hampshire (1942). While the four-letter word displayed by Cohen in relation to the draft is not uncommonly employed in a personally provocative fashion, in this instance it was clearly not “directed to the person of the hearer.” Cantwell v. Connecticut (1940). No individual actually or likely to be present could reasonably have regarded the words on appellant’s jacket as a direct personal insult.
(Cantwell v. Connecticut , on which Cohen relied, really did involve “hate speech” as many people use the term — an attack on Catholicism by a Jehovah’s Witness, in a neighborhood that was about 90 percent Catholic — and did indeed enrage listeners to the point where they said they were tempted to violence, though they resisted the temptation. But Cantwell and Cohen make clear that such speech is protected.)
So Chaplinsky doesn’t hold that “Hate speech is not protected by the first amendment.” Indeed, as my earlier post noted, other cases make clear that what is usually labeled “hate speech” — advocacy of bigoted views — is protected by the First Amendment.
Moreover, the particular statement to which Dean was apparently referring — Ann Coulter’s 2002 statement quoted as, “My only regret with Timothy McVeigh is he did not go to the New York Times Building” — would not constitute “fighting words,” whether if said in a speech at Berkeley (the apparent occasion for Dean’s quote), in the initial interview with the Observer, or most other contexts. So I don’t think that Chaplinsky does anything to support Dean’s initial statement.