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Wednesday, November 04, 2015

Epps on Feiner

Garrett Epps writes in The Atlantic about the continued effect of Feiner v. New York and the hecklers' veto in the First Amendment, especially as it affects minority groups whose speech may be subject to greater audience abuse and more concerted efforts by protesters to interfere. Epps' jumping-off point is the divided en banc Sixth Circuit decision in Bible Believers v. Wayne County, which held that police should have protected a Christian group protesting at the Arab International Festival in Dearborn, MI.

Update: Mark Tushnet discusses the Epps piece and describes what Tushnet calls a "puzzle" about hecklers vetos in this case. We actually had competing hecklers--1) the Bible Believers were heckling the Festival and its participants (themselves engaged in expressive activity) and 2) the festival participants tried to shout down the Bible Believers--each trying to veto the speech of the other. And there has not been another Arab International Festival since the one in 2012, meaning heckler # 1 was successful in its efforts, while also being found by the Sixth Circuit to have been subject to a hecklers' veto by heckler # 2. In other words, Tushnet argues, "the people protected against a heckler's veto used their First Amendment rights to induce others not to exercise their First Amendment right."

Posted by Howard Wasserman on November 4, 2015 at 11:17 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink


I don't think this is a true case of the "heckler's veto" at all. The "heckler's veto" is the exercise of *legal* force to shut down the speech. So, as I understood this case, some of the festival participants threw trash and debris at the Bible Believers (in response their admittedly repugnant message.) The authorities told the Bible Believers to leave based on a public disorder statute--and didn't tell the festival participants to stop attacking the Bible Believers. *That's* the heckler's veto--allowing unrest about speech to justify legal intervention shutting that speech down.

While it is extremely unfortunate that the Arab International Festival chose not to continue, it's a decision that is not driven by law compelling them not to continue because of social unrest, and so not a true heckler's veto--it's still their decision to make, whether to continue the festival in the face of protest--and a choice each of us make when delivering a message that someone (obviously wrongly, here) objects to.

Posted by: Robert Morse | Nov 13, 2015 10:44:25 AM

FYI you have a typo -- "effect of Feiner" not "affect of Feiner"

Posted by: gdanning | Nov 4, 2015 12:28:24 PM

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