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Tuesday, August 04, 2009

Health-care protests and free-speech models

Recent stories about "tea-party" protesters shouting down Democratic Congresspersons trying to hold constituent meetings raises the question about whether the protesters' actions are appropriate in a freedom-of-speech, as opposed to a democratic governance sense. The answer depends on two competing models of how free speech should operate.

On one hand, Congresspersons are trying to recreate some version of Alexander Meiklejohn's Town Hall Meeting, in which democratic governance occurs via a form of the New England Town Hall meeting and the freedom of speech is designed to ensure that the meeting functions towards that end. (Actually, this is more of a republican adaptation--no governance is occurring at the meeting, but the meeting is designed to enable communication between representative and constituents, which in turn enables the representative to directly participate in the governance process). But the point about the rules of the meeting remains the same: They must be designed to ensure that the meeting can function for its governance purpose; there is no right in every person present to speak; speech can be restricted if it interrupts the ordinary course of the meeting, prevents others from being heard, or otherwise interferes with the meeting; rules can be used to maintain order to the meeting process (Meiklejohn anticipating what has become known as time, place, manner restrictions).

On this conception, the tea folks are acting wrongfully. The meeting should be open to the protesters and those protesters must be permitted to speak, ask hostile questions, and express (even in loud terms) their opposition to health-care reform (none of these Bush-Era faux town hall meetings stocked with handpicked supporters). What they cannot do is interrupt the meetings by booing and jeering, shout down the Congressperson or other attendees and speakers, or otherwise try to prevent the meeting from occurring or functioning as a public conversation.

On the other hand, a competing free-speech model is the person speaking on the public street corner. This ordinarily assumes the lone, powerless speaker alone on a soapbox, railing against authority and government corruption. But I think it is a flexible enough concept to capture a Congressperson out in public, meeting and talking with his constituents or even giving a public statement. This model of speech and the public speaker also carries with it counter-speech and the counter-speaker--someone standing on an adjacent soapbox, countering the first speaker's words, symbols, and ideas, trying to convince the listening audience that she is right and the first speaker wrong, and perhaps trying to get the first speaker to give up and shut up. One speaker attempting to shout-down another--while rude, not conducive to civil or meaningful discussion that can accomplish anyway, and perhaps counter-productive--is consistent with this model of speech.

The tea folks thus are behaving consistent with this model, particularly in less-formal settings (show-ups at restaurants, picnics in the park and other public spaces, etc.). Freedom of speech includes freedom to heckle and shout-down competing speakers; the public space is not the place for the organization Meiklejohn assumes. This idea of the extreme of counter-speech is captured in this scene from Casablanca--what's the difference?

Two final caveats on this. First, I do not suggest that the tea people are behaving in a way consistent with republicanism and democratic governance. Preventing a public conversation about an important issue of public policy is hardly conducive to effective governance. But sometimes there is a divide between speech and governance. Second, Meiklejohn's model, even if appropriate here, does not speak to remedies for those who refuse to play by the rules of the town-hall meeting. Because the reality is there are none. Having even harassing and uncooperative protesters removed from the meeting is not going to play well on TV or the Internet.

Posted by Howard Wasserman on August 4, 2009 at 08:42 AM in Current Affairs, First Amendment, Howard Wasserman, Law and Politics | Permalink


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Yes, it would be nice if our elected officials would read the bill first...just like they did under George Bush with the Patriot Act and the Bail Out Bill that 'had to be passed now' or the country was going to collapse. Perhaps we should look to who is funding the 'protests' at the town hall meetings. It would be interesting to have a real conversation about health care without all the corporate lobbyists and their money interfering in the process. It would be interesting to see what congress, both Democrats & Republicans, would support if they did not have to raise so much money to run for office.

Posted by: David Earl | Aug 6, 2009 1:56:09 PM

I do not believe that these public officials should be shouted down at these town hall meetings. However, citizens of the United States of America are frustrated and angry because they realize that the people they elected to represent them are passing or considering passing laws without reading the entire bills. They should consider the fact that national polls and surveys indicate the majority of citizens do not want Cap and Trade, the kind of health care reform that is being considered, or additional massive debt. When citizens are frustrated and angry it is important for public officials to listen to these complaints and not cancel public meetings or try to ridicule or demonize these citizens.

Posted by: Jim | Aug 6, 2009 9:47:17 AM

The post was triggered by a particular story in the news now--which happened to be one political group doing the disrupting. And if I had been writing a 10,000-word law review article rather than a 1200-and-whatever-word blog post, I would have looked for more examples, including from the other side of the spectrum.

Of course, if I had written a post partially defending liberals for shouting down conservatives (as I partially defend conservatives here), I probably would have been accused (not necessarily by D, but by someone) of political bias and onesidedness for defending liberals for disrupting conservatives and making it impossible for them to be heard.

Posted by: Howard Wasserman | Aug 5, 2009 3:18:32 PM






I understand that of course there are lots of things you just don't write about, or can't (without completely displacing all of the other Prawfs). Also, I agree with you that in a vacuum, freedom of speech is politically neutral. However, this post, discussing one side of the political spectrum as being disruptive of speech without mentioning the other, I think comes across as not being politically neutral. That may just be me reading too much into it, and either way I should have worded my first comment better to reflect that I was more trying to bring to everyone's attention that this sort of thing happens by both ends of the political spectrum, rather than criticizing you.

Posted by: D | Aug 5, 2009 10:10:12 AM

Thanks to everyone for the comments. A few thoughts in response:

First, no, these town halls are not identical to the town halls that Meiklejohn envisioned. But that does not make these any less about free speech. The purpose is an exchange between the elected official and her constituents. It certainly is a more one-sided exchange and the representative is going to do more of the talking (and perhaps will not do any genuine listening--but that is just a matter of how seriously he takes his obligations to his constituents). So the "rules" for this meeting will be slightly different. But it still is a meeting for the purposes of governance (republican rather than democratic) and thus within Meiklejohn's model of what the freedom of speech is supposed to protect.

Second, nothing in that post could be read to suggest that protesting is wrong or unpatriotic. In fact, the point of the post was that, on at least one model of free speech, protest-by-disruption is perfectly proper (e,g., the movie clip). Saying, as I did, that shout-downs are inconsistent with meaningful discussion and dialogue and democratic governance (because they prevent any discussion or exchange from occurring) does not suggest that what they are doing is inconsistent with the First Amendment and the freedom of speech. But there is a difference between protesting (in the sense of speaking out in opposition to something or someone) and the sorts of mob-scene shout-down disruptions that are going on here (which are a deliberate part of a coordinated script for these activities).

Third, and related, I have no doubt that there are "normal, independent folk" who are unhappy with health care and other proposals and who want to express their opposition. I give those people credit by assuming that they will express that opposition within the context (the "rules", if you will) of the meeting, as opposed to screaming and shouting and preventing any discussion or exchange from occurring. I also assume these normal, independent folk are not showing up to scream at their representatives that Obama is not a U.S. citizen. Again, none of this is outside the scope of the freedom of speech or appropriate expression; it is outside the scope of meaningful, intelligent discussion. Those two things are not the same.

Fourth, I think the points I am making are entirely politically neutral because the freedom of speech is politically neutral. As to why there were no earlier posts on the subject when liberals were doing the shouting-down, well, I have not been writing here that long, so I am sure there have been lots of things I could have written about and didn't.

Posted by: Howard Wasserman | Aug 4, 2009 9:52:40 PM

Sean - I guess we'll see how Arlen Specter and his colleagues who've been shouted down will vote on health care reform. I do realize that each and every Congressman is fundamentally motivated by the next election. But, I think their calculus is a bit more complex than gauging what their constituents want and voting accordingly. Certainly they're going to take into account the amount of time before the next election. They're also going to factor in relationships with party leadership, the White House, and any partners in horse trading. And, I do think that, particularly when it comes to health care, many Congressmen think that once it's passed, the promised benefits will change minds. I don't want to fall into the whole "liberal elite" meme, but there is an element of "Trust us. You'll thank us once we've passed it." THAT attitude is what seems to be motivating these town hall meetings.

Posted by: J | Aug 4, 2009 9:49:56 PM

Also, why is it assumed that everyone who shows up at town hall meetings to express their opposition to ObamaCare is a teabagger? Some of the clips I've seen show quite a cross section of citizens. Believe it or not, there are actually some normal, independent folk out there who are none too happy with what this Administration is doing.

Posted by: Douay | Aug 4, 2009 8:19:42 PM

"In the interest of partisan fairness, where was this post when conservative speakers on college campuses across the country were interrupted and shouted down by progressive student groups?"

Proof? Or more lies made up by the right-wing haters? This place is starting to feel like Germany in the 1920's.

Posted by: Kunst | Aug 4, 2009 7:41:54 PM

J, I think you misunderstand the fundamental motivation behind each and every Congressperson; to get reelected. If a Congressperson, at such events, hears nothing but opposition to a given proposal (and believes this opposition to be widely held by her constituents, a belief that the teabagger shouting will not necessarily engender) she will almost certainly vote against that proposal, or at the very least try to weasel out of voting for it. Congresspeople are not blind ideologues who vote their beliefs come hell or high water; such people rarely (Ron Paul perhaps being an exception) get elected to Congress. Rather, they tend to be rational people who do what it takes to get and stay elected.

Posted by: Sean | Aug 4, 2009 7:24:10 PM

To follow up, I should say that I think this kind of behavior, by either side of the political divide, is not consistent with either free speech model. I don't see the idea of counterspeech as trying to shout down the other person--I envision counterspeech as being so persuasive that everyone wants to listen to you, and stop listening to the other person.

J raises an interesting point--are these 'town halls' really about free speech in the first place? For instance, if I show up at one, I may very well be able to ask a question of the elected official. But will I get a real answer to what I ask? More importantly, putting aside the idea of a Q&A, would I be entitled to stand up and speak about my opinion to the same extent the person leading the meeting is? The answer is of course no, which means this whole forum isn't really about free speech in the first place--it is about supplying a forum for an elected official to get his/her message out. Thus, this scenario doesn't really even fall under the first model of free speech you discuss--the time, place, and manner restrictions you allude to are different for the person 'hosting' the meeting and anyone else attending.

Posted by: D | Aug 4, 2009 6:29:21 PM

i'm struggling to remember, but wasn't it true pre-January that protest was the highest form of patriotism, and that when the Bush campaign tried to shunt the yelling protestors to the side it was an invidious stain on the first amendment?

if a congressional representative can't stand the heat . . . . they should see the light. as for the professional professoriate, we can't trust them to protect a content-neutral version of free speech (either within universities or in the public square).

Posted by: lakeshore | Aug 4, 2009 4:36:43 PM

The interesting assumption of this post is that the town-hall meetings have been organized and designed to be a true give-and-take in which representatives hear from constituents, which then "enables the representative to directly participate in the governance process," presumably in such a way that reflects the views of his constituents. In other words, it presupposes the representative's mind is not made up and that his or her position will be impacted in part by what he or she hears and discusses at the meeting. I think we all know that this is a bunch of baloney; these meetings are being held to give the representatives, whose minds are already made up, an opportunity to deliver a sales pitch.

Posted by: J | Aug 4, 2009 1:49:39 PM

In the interest of partisan fairness, where was this post when conservative speakers on college campuses across the country were interrupted and shouted down by progressive student groups?

Posted by: D | Aug 4, 2009 9:50:56 AM

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