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Sunday, June 18, 2017

More heckling

Great essay in The Atlantic by Thomas Healy (Seton Hall) arguing that some of the non-violent "intense pushback and protest" against right-wing speech on campus is itself constitutionally protected counter-speech, the Brandeisian remedy to be applied. Healy consider heckling as part of this:

Heckling raises trickier questions. Occasional boos or interruptions are acceptable since they don’t prevent speakers from communicating their ideas. But heckling that is so loud and continuous a speaker literally cannot be heard is little different from putting a hand over a speaker’s mouth and should be viewed as antithetical to the values free speech.

I have argued that some heckling is protected expression and where we draw that line raises an important First Amendment question. I have not yet figured out where that is, although I do not believe it is loud and continuous heckling, at least without knowing more--such as where the heckler is viz a vizt the speaker and the nature of the spaces in which both speech and counter-speech are occurring. But it is good to see someone stake out the basic position that protesters shouting over an objectionable speaker are not censors but themselves participants in a messy debate.

Posted by Howard Wasserman on June 18, 2017 at 11:19 PM in First Amendment, Law and Politics | Permalink


I'm much less impressed. Healy writes:

The problem with this argument [that speech designed to intimidate opponents to prevent them from speaking is problematic] is that all counter-speech has a potential chilling effect. Any time people refute an assertion of fact by pointing to evidence that contradicts it, speakers may be hesitant to repeat that assertion. Whenever opponents challenge an opinion by showing that it is poorly reasoned, leads to undesirable results, or is motivated by bigotry or ignorance, speakers may feel less comfortable expressing that opinion in the future.

Put bluntly, the implicit goal of all argument is, ultimately, to quash the opposing view. We don’t dispute a proposition in the hope that others will continue to hold and express that belief. Unless we are playing devil’s advocate, we dispute it to establish that we are right and the other side is wrong. If we are successful enough, the opposing view will become so discredited that it is effectively, although not officially, silenced.

Maybe I'm missing something, but this strikes me as a remarkably weak argument. I think there's a pretty obvious difference between someone saying "I won't voice an argument because I now realize I have a bad argument and my view is wrong" and "I won't speak because, although I think I have a good argument, I'm in the minority and I will be socially ostracized or shunned by the majority." In the former case, the speaker is being guided by truth; in the latter case, the speaker is being guided by fear. The problem is that chilling effects are about speakers speaking their opinions not about whether specific arguments are made: If you make a great argument and change my mind, my old argument isn't "chilled." Or so it seems to me.

Posted by: Orin Kerr | Jun 19, 2017 12:41:20 AM

If I may add to the point, the hecklers are not "participants in a messy debate". This implies that all debates are inherently messy affairs, and I believe that implication is prima facie false. Rather, the hecklers are the ones (purposefully) making the debate messy. In addition, a heckler's objective is not to participate in the debate. The heckler's objective is to end the debate. Their objective is to make it so that a speaker cannot speak intelligibly. So it seems your contention falls to (at least) two objections.

This, it seems to me, violates the fundamental basis of an invited speaker as well as the implied contract each attendee (including the hecklers) agrees to by attending the talk. The idea of an invited speaker is to let that speaker speak in an environment where others can hear what the speaker says. In addition, those with contrasting opinions generally are allowed a time to enter the debate during question periods.

For these (preliminary) reasons, I find your post unconvincing.

Posted by: YesterdayIKilledAMammoth | Jun 19, 2017 2:02:46 AM

And that's why I said it depends on the space and location. You're assuming everyone inside an auditorium. There are many contexts in which this could happen. It doesn't matter who made debate messy or why--the First Amendnenr allows it to be messy,

Posted by: Howard Wasserman | Jun 19, 2017 6:44:45 AM

And that's why I said it depends on the space and location. You're assuming everyone inside an auditorium. There are many contexts in which this could happen. It doesn't matter who made debate messy or why--the First Amendnenr allows it to be messy,

Posted by: Howard Wasserman | Jun 19, 2017 6:44:49 AM

"First, much of the social pressure that critics complain about is itself speech."

Maybe I've missed some of the plot. I've heard complaints about speech being shut down due to the heckler's veto, or barricading doors, or running up and stealing the microphone. But where are these people complaining that their speech is being shut down due to mere "social pressure"?

Posted by: Derek Tokaz | Jun 19, 2017 9:08:22 AM

I guess I'm not even sure, just to throw an extreme position out there, if "loud and continuous heckling" is speech, or more like the use of a noise machine at an event you want to disrupt. I assume that the latter isn't speech and I'm not sure how different loud and continuous heckling is from that. Of course, the hecklers are probably saying something or another, and, apart from what they're saying, are obviously expressing their discontent with the message of the speaker, or in many of these cases, his mere identity - I take it that Charles Murray didn't come to talk to Middlebury to talk about The Bell Curve, but rather came to talk about some completely different subject and got heckled anyway because of a book he wrote twenty years ago. But if I parked a noise machine at someone's lecture, I'd be expressing my discontent with the speaker too. I might even claim that the incoherent babble produced by the noise machine is meant to signify what I think about the speaker's argument. Or, if I sprayed a noxious gas in the auditorium, I could say I was only trying to symbolically express my view of the noxiousness of the speaker's remarks. I doubt, however, that anyone would take these arguments very seriously or deem what I did to be anythingmore than non-expressive conduct. My suspicion is that the hecklers, like me in these examples, are not really trying to express anything in good faith and are just using their noisy "speech" to make the speaker's remarks inaudible.

Posted by: Asher Steinberg | Jun 19, 2017 12:04:38 PM

"But where are these people complaining that their speech is being shut down due to mere "social pressure"?"

It's pretty extensive online. See for example the endless whining about Brandon Eich.

Posted by: john | Jun 19, 2017 2:32:22 PM

The First Amendment generally does not require speech to be clear or to have a particularized or obvious message or to be made in good faith. "Incoherent babble" is constitutionally protected. I can stand on the street corner and babble incoherently for no reason other than to piss people off. If so, that is true when I am engaged in "original speech" and when I am engaged in "counter speech" to someone else's speech.

As I have said repeatedly, there comes a point at which heckling does lose its protection. I am trying to figure out where that point is. But I do not believe it is as easy as labeling something "heckling," even if loud and continuous.

Posted by: Howard Wasserman | Jun 19, 2017 3:12:46 PM

Prof Wasserman: Please cite the case that says that making noise for the express purpose of drowning someone out is protected as speech, even on a street corner. Also, please provide citation for your assumption that a public college must allow interruptions (even communicative ones) to speeches which it hosts.

What principle would you employ to draw your line between protected heckling and unprotected heckling?

And, last, do you really think that Justice Brandeis meant counter-speech interrupting the original speech, as opposed to at a different time or different place? Does anyone else here think that?

Posted by: biff | Jun 19, 2017 5:23:44 PM

There are no cases dealing with the sort of heckling/counter-speech we are talking about here. If there were, I would have cited them in the original post (and I probably would not have anything to blog about in the first place). Nor do I know where the line is--that is what I am trying to figure out; again, if I knew where I wanted to draw the line, I would have said so in the original post. That is kind of why I wrote the post.

I am trying to work forward from first principles. Ordinarily we don't care about the purpose behind someone's otherwise-protected speech: To annoy, to anger, whatever. So there is no reason that express purpose to drown out would be different.

Come to think of it, we are happy when more counter-protesters than Klan members show up and speak louder. We are happy when more counter-protesters than Westboro members show up and speak louder. So how it should not be different on campus.

Posted by: Howard Wasserman | Jun 19, 2017 8:49:30 PM

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