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Even after almost two days of experts attempting to explain it, Howard Deanapparently stilldoesnt understand how the First Amendmentworks.In fact, the former Vermont governorcited anirrelevant Supreme Court decision when doubling-downed on his argument thathate speech isnt protected by the Constitution. First, though, lets review the timeline of Deans mistake. Then lets see where he went wrong.

This whole thing started Thursday night, when he made this claim.

This references something awful Ann Coulterreportedly said in 2002: My only regret with Timothy McVeigh is he did not go to the New York Times Building.

Does it meet colloquial definitions of hate speech? No. Is it terrible? Yes. Is it Constitutionally protected? Yuuuuuuuuuup. So is hate speech, sadly. Thats what commentators tried to drill into Deans head. Politifact got in on it. So did Vices Sarah Jeong,and others.

One counterargument caught Deans attention, however. AFriday op-ed from UCLA law Professor Eugene Volokh. This constitutional scholar and First Amendment expert took pains to explain how Free Speech works. Whats moreimportant, and possibly useful to non-lawyers, is his explanation of fighting words. [Emphasis mine]

To be sure, there are some kinds of speech that are unprotected by the First Amendment. But those narrow exceptions have nothing to do with hate speech in any conventionally used sense of the term. For instance, there is an exception for fighting words face-to-face personal insults addressed to a specific person, of the sort that are likely to start an immediate fight. But this exception isnt limited to racial or religious insults, nor does it cover all racially or religiously offensive statements. Indeed, when the City of St. Paul tried to specifically punish bigoted fighting words, the Supreme Court held that this selective prohibition was unconstitutional (R.A.V. v. City of St. Paul (1992)), even though a broad ban on all fighting words would indeed be permissible.

He also pointed out other exceptions, like true threats of illegal conduct or incitement intended to and likely to produce imminent illegal conduct i.e., illegal conduct in the next few hours or maybe days, as opposed to some illegal conduct some time in the future. But the fighting words exception is key here because of how Dean later responded.

Howard Deana former presidential candidate, and long-time power player in Vermont politicstried to prove that hate speech isnt protected, but instead cited a Supreme Court case that absolutely has nothing to do with hate speech.

1942s Chaplinsky v. New Hampshire turned on fighting words. In a unanimousruling, justices upheld the conviction, under state law, of a man who used abusive language to provoke the listener to an act of violence.

From the holding:

2. The Court notices judicially that the appellations damned racketeer and damned Fascist are epithets likely to provoke the average person to retaliation, and thereby cause a breach of the peace.

Now this is where I may lose some of you. What about racial slurs? Yes, if someone hurls a bunch of insults in such a way as to provoke a fistfight, then its outside of the First Amendments protection.But it wouldnt be unprotectedbecause its a slur. Its unprotectedbecause it, specifically, would cause violence soon, if not here and now. Volokhs explanation must be repeated here: Fighting words are face-to-face personal insults addressed to a specific person, of the sort that are likely to start an immediate fight. It has nothing to do with the speech being bigoted. Its all to do with the immediate incitement to violence.

Volokh wrote a rebuttal essayto Deans second tweet on Saturday morning. One line sums it up.

So Chaplinsky doesnt hold that Hate speech is not protected by the first amendment.

And even after all that, heres the governors most recent tweet on the matter.

Its unclear if Deanhas read Volokhs rebuttal.

[Screengrab via MSNBC]

This is an opinion piece. The views expressed in this article are those of just the author.

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Howard Dean Doesn't Get That First Amendment Protects Ann Coulter's 'Hate Speech' - LawNewz