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Monday, November 11, 2013

Counter speech, hecklers, and heckler's vetoes

This story (from Slate and Inside Higher Ed) [link fixed] discusses recent events at Brown University, in which students repeatedly interrupted a speech by NYPD Commissioner Ray Kelly (architect of the city's stop-and-frisk policy), ultimately causing the speech to be canceled. The author pairs this with a 2001 incident, in which students trashed 4000 copies of the student newspaper containing an editorial advertisement questioning the wisdom of slavery reparations. Both Kelly (or it least his policies) and the ad were alleged to be racist. The University president has criticized the Kelly protesters and spoken of the need to allow all voices to be heard. The legal director of the Foundation for Individual Rights in Education ("FIRE") (an organization whose views about campus speech I largely share) expressed concern over the pervasiveness of such "heckler's vetos."

The incident illustrates something I wrote about here, about three distinct forms that counter-speech (whether actual or symbolic) may take. One involves counter-speakers in the same location as the original speaker, attempting to drown him out. While those counter-speakers are certainly hecklers, heckling is itself a form of protected free-speech activity, at least so long as the hecklers are lawfully entitled to the space in which they are heckling. While this perhaps is not the ideal path to rational discourse, both the speaker and the heckling counter-speaker attempting to drown him out are doing what the First Amendment contemplates and protects.

A cinematic illustration of this idea after the jump:


But I hesitate to call what happened with Kelly censorship or a heckler's veto, at least without knowing more about what happened there. A heckler's veto presumes government involvement in stopping the original speaker on behalf of the hecklers or in furtherance of the hecklers' preferences; it does not include heckling counter-speakers who succeed in drowning out the original voices. It is the difference between Brown officials canceling Kelly's speech (whether to keep the peace or to satisfy the hecklers) and Kelly giving up because he could not get a word in edgewise.

Again, drowning out a speaker or burning publications with whom you disagree is not the best approach to public discourse and dialgoue, especially on a university campus, where all ideas should be aired. It is to say, however, that, no, Brown University does not have a problem with free speech; its students are acting entirely consistent with one vision of free speech and the First Amendment.

Posted by Howard Wasserman on November 11, 2013 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink


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I definitely agree with the first point. I probably agree with the second, although I need to know more about how Brown defines these spaces.

Note that place is everything. If the students in the hallway were using sound amplification equipment and being so loud that Kelly could not be heard inside the lecture hall, that should still be ok.

Posted by: Howard Wasserman | Nov 12, 2013 4:23:11 PM

Howard, I suspect part of the problem may be the poor quality of the video in the Slate piece, from which you are taking your understanding of what happened. You can watch a much better video of what happened here: http://www.youtube.com/watch?v=6Qch6b7GaJM#t=34

There was a protest outside the lecture hall, which everyone agrees was fine -- that's not the source of controversy. The controversial part is that the protesters obstructed the speech inside the lecture hall by having dozens of supporters in the room who stood up and screamed out their own views so that, in the words of one protester, "WE'RE GOING TO SHUT YOU DOWN!" Whenever Kelly tried to speak, individual protesters would stand and scream out their own long speeches about how Kelly was wrong, cheered on by dozens of audience members at the tops of their lungs. They made it so no one could hear Kelley if he decided to speak, and they made clear that they were going to keep screaming: Eventually the speech was canceled because the protesters made clear that they were prepared to keep this up to ensure that Kelly would not be heard. All of this occurred inside the lecture room, as the video shows.

In any event, perhaps we can all agree that the tactics of the protesters were thuggish and contrary to the spirit of public discourse, and that the police could have arrested the protesters consistently with the First Amendment, but that technically the form of the protest included the use of "speech" for 1st Amendment purposes.

Posted by: Orin Kerr | Nov 12, 2013 11:58:53 AM

The Slate article asked if Brown has a "free speech problem," a question directed at whether Brown students were ignoring or behaving inconsistently with principles of free speech in shouting down or destroying opposing viewpoints. I was answering that question and my answer was that the students were, in fact, engaging in appropriate public expression, consistent with some idea of what the freedom of speech should entail as a normative matter. As a legal matter, Brown is a private university and can do whatever it wants, up to and including cutting off all expression. But like most universities, Brown voluntarily adheres to principles that permit broad expression.

One vision of the First Amendment/free speech is that it only protects polite discourse; the argument has been made. I disagree; I think it protects a broad cacaphony that may often be quite impolite.

And that includes heckling. So Orin's question: There is no reason heckling would not be protected expression: It's expressive, it contains a message, and it does not fall within any of the narrow unprotected categories.

As I said in the post, it depends on whether they were in a place they were entitled to be, which I couldn't entirely tell from the video. If they were outside the lecture hall and making noise, that is different than being inside the lecture hall. They probably could have been removed if the latter, although much depends on how Brown itself defines these spaces. But that doesn't change my basic point, which is that heckling is a form of protected expression.

Posted by: Howard Wasserman | Nov 12, 2013 10:18:47 AM

Context matters. Shouting someone down when you know the consequences could be a beating or worse is different from shouting someone down when the consequences are nothing of consequence. French POWs are not Brown undergraduates. Maybe taking the First Amendment seriously requires us to insist on some degree of polite discourse? I think it's risky to get too doctrinal about politics. But escorting them out if they can't behave seems more than adequate.

Posted by: Brian L. Frye | Nov 12, 2013 3:12:34 AM

What value, if any, is there in taking some constitutional protection that applies in a particular context (state action) and arguing that, when it is observed in another context,it is consistent with the "vision" of the protection?

One could argue, I suppose, that a father who straps on a gun when he takes his 3-year old son to a toddler's birthday party at a neighbor's house is acting consistent with the "vision" of the 2nd amendment. Such a statement seems at best irrelevant and at worst inflammatory.

And perhaps it's faithful with the "vision" of due process to give, for example, a football player a notice & hearing on the record before a neutral arbiter before he is moved from the starting roster to the practice squad, but I again question whether the "due process" vision plays much of a role in this context.

Regarding the topic of this post, I find generic claims of "free speech rights" fairly vexing. It seems like 70% of the public thinks that the right to "free speech" just means the right to say whatever you want, regardless of context, and regardless of state action. This post seems to offer a qualified defense of that position.

Blech. But thank you very much for the provocative and enjoyable post.

Posted by: andy | Nov 12, 2013 2:42:13 AM

Howard, it sounds like your premise is that a private party that engages in conduct that couldn't be punished by the government is itself acting in ways "entirely consistent with one vision of free speech and the First Amendment." If that's an accurate statement of your underlying premise, can you explain why you think that? When I think of whether a private party is acting consistently with the principle of free speech, I don't think that's asking whether it engaged in conduct that the government could not punish.

Second, if that's your argument, can you explain why the heckling would itself be protected under the First Amendment? I'm no First Amendment expert, so you'll have to explain that one to me. My understanding is that, two years ago, the DC Circuit held that there is no First Amendment right to engage in silent expressive dancing inside the Jefferson Memorial. See Oberwetter v. Hilliard 639 F.3d 545 (DC Cir. 2011). The Jefferson Memorial is a non-public forum, the court held, and the Park Service Regulations prohibiting “interfering with an agency function” and “demonstrating without a permit” were upheld as “viewpoint neutral and reasonable in light of the purpose of the forum." Under that precedent, why is there a First Amendment right to engage in disruptive speech inside a university lecture hall? College lecture halls are nonpublic forums, see, e.g., Bishop v. Aronov , 926 F.2d 1066, 1071 (11th Cir. 1991), so so I would think that viewpoint neutral regulations such as trespass, prohibitions on interfering with events, or counterdemonstrating without permission would also be upheld. What am I missing?

Posted by: Orin Kerr | Nov 11, 2013 9:10:28 PM

Is the general principle of free speech simply identical to the current US First Amendment jurisprudence without the state action principle?

That seems rather circular.

Posted by: brad | Nov 11, 2013 8:03:05 PM

Shooting someone is not protected by the First Amendment. As for the student agreement to shoot anyone, this probably is not protected because this sort of face-to-face agreement to act is not protected in the same way as public speech. That's why conspiracies remain punishable.

But let me tweak your hypo. Suppose the students *publicly announced* that anyone who spoke in favor would be shot, but without any agreement among identifiable people to act. Now it begins to sound a lot like NAACP v. Claiborne Hardware, where the Court said such public pronouncements were neither incitement nor true threats.

Posted by: Howard Wasserman | Nov 11, 2013 6:40:09 PM

Howard, I don't understand your argument. Let's take an extreme example. Let's say that the Brown protesters agreed to murder anyone who spoke in favor of stop and frisk on the Brown campus. In my hypo, the students' rule was simple: If you speak against stop and frisk you will live, but if you speak in favor of stop and frisk you will die. The goal is to make sure that no one at Brown says anything in favor of stop and frisk. To that end, when Kelly comes to campus and begins to speak, a student pulls out a pistol, aims, fires, and kills him. In your view, would this also be "entirely consistent with one vision of free speech and the First Amendment"? Why or why not?

Posted by: Orin Kerr | Nov 11, 2013 6:23:59 PM

Why not? One side is trying to express themselves, the opposing sides talks over them, the first side gives up. Other than that the film involves Nazis and this doesn't, what is the difference?

Posted by: Howard Wasserman | Nov 11, 2013 4:31:48 PM

This scene from Casablanca (one of the most powerful scenes in cinema -- inspired by the Marseillaise scene in Gance's Napoleon) has virtually nothing in common with what happened at Brown.

I realize that you have posted the video as an illustration of the point you are trying to make. The Brown facts don't fit the point.

This kind of reasoning(which I do not think you mean to endorse)turns apples into oranges (both are fruit),our founding fathers into terrorists and terrorists into freedom fighters & War into Peace (a la 1984 and the preventative theory of war).

Posted by: Fred Talman | Nov 11, 2013 4:14:06 PM

It's not so much about the mob pre-approving of the message. It's that in the interplay between speech and counter-speech, a counter-speaker is entirely within his rights to try to shout down or drown-out the original speaker. So the point is not only did the protesters not violate the First Amendment because of the absence of state action. But it would be inconsistent with free speech for the university (although not with the First Amendment because there is no state action) to have halted the protesters from shouting him down or to punish or sanction them for their behavior.

I would not say this is an impoverished vision of free speech, although I agree is an impoverished vision of public discourse. For better or worse, the two are not co-extensive.

Posted by: Howard Wasserman | Nov 11, 2013 4:04:49 PM

"[I]ts students are acting entirely consistent with one vision of free speech and the First Amendment."

I don't see why. The students' goal was to control speech, ensuring that no speech they didn't approve of could be heard. That didn't violate the First Amendment, obviously, as the students are not state actors. But if there is a vision of free speech in which no one can speak unless the mob pre-approves of your message, then that is a pretty impoverished vision of free speech.

Posted by: Orin Kerr | Nov 11, 2013 1:56:01 PM

"so long as the hecklers are lawfully entitled to the space in which they are heckling"

Is this obviously the case here? Isn't a restriction on not interrupting a scheduled event a perfectly reasonable "time/place/manner" restriction?

Posted by: Andrew MacKie-Mason | Nov 11, 2013 10:28:27 AM

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