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.
Fallacious tweets:
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).
Fallacious tweet:
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.
In A Crowded Theater 
“Facts: Private entities do not need to respect speech rights.”
But private entities do need to right respect people’s rights not to be discriminated against or segregated, right? You can’t just let a private school or allow in whites, or have female-only classes. So, what determines which rights its OK for private entities to respect, and which rights they can ignore? Is it morally legitimate to silence people, but not to discriminate against them–because speech isn’t fundamental, but the right not to be discriminated against is?
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MixedRacer, I have a few things to say about this. First, private entities cannot discriminate because of state and federal laws, for the most part, not because because of any constitutional rights, which generally do not apply to private actors. It is Title VII and Title IX, for example, that prohibit a good deal of discrimination – those are federal laws, not constitutional rights. Secondly, the First Amendment makes a distinction between speech – which is protected, and conduct – which is not protected. Discrimination is conduct, but expressing discriminatory views is speech. One’s views about the morality (which are, to some degree, subjective) are different than legality. You may think lots of speech is morally wrong that is still protected- that is actually part of why we have free speech rights. Speech that many find objectionable is protected. But, the moral argument (which is separate from the legal one) is that ideas are separated from action, so action is far worse and more harmful than ideas. And actually, as a side note, First Amendment associational rights do allow private associations to discriminate as long as they are considered an expressive group. (And there are single-gender private schools as well.) It is not that speech is not fundamental. Speech is fundamental- that’s why we allow private parties speech rights as against the government. The private parties cannot “silence people” in the same was as the government.
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It really looks like its the constitution, specifically the thirteenth amendment,
https://supreme.justia.com/cases/federal/us/392/409/case.html#437
V. The remaining question is whether Congress has power under the Constitution to do what § 1982 purports to do: to prohibit all racial discrimination, private and public, in the sale and rental of property. Our starting point is the Thirteenth Amendment, for it was pursuant to that constitutional provision that Congress originally enacted what is now § 1982. The Amendment consists of two parts. Section 1 states:
“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”
Section 2 provides:
“Congress shall have power to enforce this article by appropriate legislation.”
As its text reveals, the Thirteenth Amendment
“is not a mere prohibition of State laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States.”
Civil Rights Cases, 109 U. S. 3, 109 U. S. 20. It has never been doubted, therefore, “that the power vested in Congress to enforce the article by appropriate legislation,” ibid., includes the power to enact laws “direct and primary, operating upon the acts of individuals, whether sanctioned by State legislation or not.” Id. at 109 U. S. 23. [Footnote 74]
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Ah yes, the Thirteenth Amendment is the exception to the view that constitutional amendments apply only to the gvt, and the restrictive covenant cases are a particular exception to general rules about state action. That said, the First Amendment (along with most amendments) specifically, and in text, applies only to Congress- and has been incorporated against the states in the Fourteenth Amendment. Thanks for your comment.
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I should add that these restrictive covenant cases (dealing with property contracts) are generally considered an outlier in the jurisprudence, which is why Congress needed to enact Title VI (education), Title VII (employment), and Title IX (education).
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There is no litmus test for truth or knowledge of the law when exercising your first the first amendment rights.
Thank you Donald Trump for providing yet another example of this.
And thank goodness there are individuals like yourself to educate and further our understanding of the rights we all benefit from, but sometimes don’t quite grasp why they should apply to our adversaries.
Perhaps we are all a bit guilty at times of feeling that way
Thank goodness for the first amendment
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