Is "Hate Speech" Protected by the Constitution?

Last month, former Vermont Governor and former presidential candidate Howard Dean tweeted an astonishing assertion.

Hate speech is not protected by the first amendment. https://t.co/DOct3xcLoY

— Howard Dean (@GovHowardDean) April 21, 2017

Dean was commenting on the controversy at the University of California at Berkeley, where an upcoming speech by Ann Coulter was met with protests and threats. The university had offered to postpone the speech for a week in order to provide adequate security.

Dean wasn't referring to the threats against Ms. Coulter, but to some of Coulter's own past statements. And she has said some hateful things over the years. I'm not going to repeat them, but they can easily be googled by anyone who wants to know.

But Dean is wrong; the Constitution does protect such speech. In fact, protecting "hate speech" is arguably the primary reason the First Amendment includes freedom of speech.

There are types of speech that are not protected: threats against another person, for example, or incitement to violence.

But "hate speech" has no legal definition; and its a near certainty that any politician attempting to legislate against it would do so in a self-serving way. There may, in fact, be politicians—perhaps those in power at this moment—who would consider some of Dean's own past statements to be hate speech.

Permitting freedom of speech for those who say things we find detestable is a safeguard against permitting a government to stifle its opposition. Governor Dean should be grateful that the Constitution protects hate speech. If it didn't, he could easily find himself on the wrong side of the law.