Last week, Howard Dean joined the ignominious club of politicians who have tweeted something obviously wrong about our First Amendment rights. Dean tweeted that “hate speech is not protected,” a statement that would be true if uttered in any other Western democracy. However, America’s exceptionally robust free speech protections mean that there is no such category of speech as “hate speech” that does not receive First Amendment safeguards. Speech derogatory of people of different races or religions, which is banned elsewhere, cannot be banned here. I believe this is a good thing. Often those countries use their hate speech laws to arrest and imprison people for pure political speech.
I wonder how Howard Dean, a past Presidential candidate and physician, could be so wrong about our rights. First Amendment doctrine is complicated, but we do not do a good enough job of teaching the basics, let alone the nuances, of free speech. Perhaps this is because we don’t want people to know their rights –then they might invoke them. This blog series begins a small effort to dispel the worst First Amendment myths, as seen on Twitter.
Facts: Flag burning is protected as expressive conduct, but you cannot vandalize other people’s signs or symbols.
Donald Trump, our current President, did not know that flag burning is speech protected by the First Amendment. As President-elect, Trump tweeted that he would revoke the citizenship of those who burned the flag. This statement is ignorant of both our First Amendment right to expressive conduct and our citizenship privileges. Even though flag burning requires some conduct – the act of burning – it is still protected under the First Amendment. The government generally cannot ban an act that has a mix of speech-like and conduct-like elements if (1) the speech-like elements communicate a clear message, and (2) if the purpose of the law is to punish the speech because of that message. Because laws banning flag burning are intended to target the message of disrespect to America and our traditions, these laws are prohibited by the First Amendment. (Masterpiece Cakeshop, a case that the Court is considering for certiorari, involves interesting expressive conduct issues.)
However, vandalism is not protected speech. Vandalism laws prevent people from destroying others’ property, so the laws do not target a particular viewpoint. Vandalism may, in fact, be an attempt to drown out someone else’s free speech, and is not protected under our First Amendment regime. If you burn someone else’s campaign sign, you do not get First Amendment protection (and you likely don’t care much about our ability to speak freely).
Facts: Private entities do not need to respect speech rights. However, public universities do need to respect the First Amendment.
The First Amendment applies only to government action – laws, policies, or actions taken by the state or federal government. Although I respect Colin Kaepernick’s project, the National Football League and its football teams can refuse to hire Kaepernick based on his speech. The government may not abridge his right to protest how minorities are treated by the police, but the NFL is a private entity. Of course, if you care about the values behind free speech, you may disapprove of blacklisting Kaepernick, but there is no First Amendment problem here.
However, public universities, as state actors, are not permitted to discriminate against speech on the basis of viewpoint. This means, if a student organization wishes to host a speaker like Milo or Anne Coulter, the university must allow that speaker a platform on the same terms as a speaker brought in by any other student group. A public university need not endorse the speaker, or host the speaker in its own name, but it must permit its students to host speaker events without regard to the views of the speaker. Viewpoint discrimination is perhaps the chief First Amendment evil.
Stay tuned for more debunking of Twitter’s worst free speech misconceptions. Send me your best examples for future posts in this series. Those who are not educated in their rights cannot exercise them.