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Sunday, September 24, 2017

Hecklers and counter-speakers (again)

Mark Tushnet, writing on Vox and Balkinization, argues that the counter-speakers/hecklers/audience members who attempt to shout down other speakers engage in constitutionally protected activities and the First Amendment is violated by many of a state university's efforts to stop hecklers. Mark argues that the speaker and the hecklers are "symmetrically situated with respect to speech" and that the intuitive "first come, first served" rule fails to capture the complexity of situations or to recognize that it is not always clear who is "first" in any situation. (If the speaker is inside the auditorium and the hecklers are outside, the hecklers are first in that outdoor space).

Mark captures well a lot of what I have been thinking and arguing about this, that deriding hecklers/protesters/counter-speakers as exercising the dreaded heckler's veto misses the mark. Labeling this  as "noisy interference" also is too simplistic, as it fails to capture the expressive nature of what many hecklers do. And all of this comes on the heels of a poll showing that a majority of college students believe it is ok to shout-down speakers.

Mark is searching for a rule or balance that does not inevitably take content into account. One answer might be that it depends on the precise forum,. On this, perhaps we distinguish between a limited-space auditorium that must be reserved and open areas on campus; audience members have greater counter-speech rights in the latter than the former. Or we distinguish between the speaker stage and the audience, so a heckler can shout from the audience, but not run on stage and grab the microphone.

But Mark's arguments show that the content problem arguably never goes away (something I had not crystallized previously). Consider audience members in an auditorium, with the speaker on stage. Mark argues that, even if the speaker has priority over the audience, all members of the audience are symmetrically situated. We can imagine a situation in which the crowd of speaker-supporters is loud and raucous, to the point that their cheering and shouts of "USA! USA!" or "you said it" cause the speaker to pause or make it impossible for him to hear. I doubt anyone would want these supporters removed. So what is the difference between audience members whose jeering and shouts of "fascist" (Mark uses  Joe Wilson's "You lie") cause the speaker to pause or make it impossible for him to be heard? Content and viewpoint.

We might get around the problem by distinguishing the nature of the forum and the expression in that forum0--an academic lecture as opposed to a political or partisan rally. But that highlights the complexity of the problem and the absence of easy answers--the precise point Mark is trying to make.

Posted by Howard Wasserman on September 24, 2017 at 06:02 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink


Whoever pays for the room sets the rules, it's not public.

Posted by: bobmark | Sep 26, 2017 5:47:12 PM

Most of these venues, like classrooms and auditoriums, aren't public forums. If a speaker is on a sidewalk, or on a soapbox in a public park, sure, you have as much right to speak as they do. Not so in a classroom or auditorium. Of course, even public parks can temporarily lose their public forum status. If a town holds an event where the local symphony is playing in the park, you can't just bring your violin on stage and play with them. It's pretty safe to say that most campus events where there is a featured speaker speaking aren't public forums.

Posted by: ShelbyC | Sep 25, 2017 4:50:04 PM

It is not a public space opened up for speech. From 9-10:15 a.m., Room 2008 is reserved for Prof. Wasserman's Evidence class. No one else has any right to use that space and the use of that space is subject to whatever rules I want to impose. This is my point--the nature and details of the forum and its use matter, for speech and counter-speech, matter.

Posted by: Howard Wasserman | Sep 25, 2017 4:41:31 PM

I don't see how it could not be a public forum. One may argue that students have paid to hear the professor, but that is many times also the case with speakers. Especially if the student began the protest before the class actually began. It seems the student would be "first" to the space.

Or if students who were not part of the class staged a protest. My thoughts on this are disorganized at the moment, but I don't see how the students' right to counter-speech against a professor can be infringed.

Posted by: YesterdayIKilledAMammoth | Sep 25, 2017 4:19:42 PM

One of the issues highlighted in the commercial speech cases is that the purpose of the First Amendment isn't just to protect the right to speak, but it's also to protect the right to receive information. Looked at from the perspective of protecting the right of the other members of the audience to receive information, there is a clear distinction between spontaneous cheers (or even boos/negative comments--I don't think I've ever heard anyone use something like Joe Wilson's comment as an example of a heckler's veto) and sustained efforts to disrupt a speech.

Posted by: jph12 | Sep 25, 2017 12:53:48 PM

Thank you all for the comments.

Mammoth: No, because the classroom is not a public forum. I can order a disruptive student removed from the class (whether that will happen depends on the university administration, which is separate from the First Amendment question I am asking).

Posted by: Howard Wasserman | Sep 25, 2017 6:26:16 AM


At Evergreen, yes. In Saudi Arabia or North Korea, probably not.

I recommend taking classes online so you can listen to pre-recorded lectures without interruption on your own time. Going to class has become an exercise in fragility (the study of snowflakes).

Posted by: Kent State Berkeley | Sep 25, 2017 2:09:09 AM

Can a group of students shout down a professor's lecture if they do not approve of the lecture material or the professor's political stance?

Posted by: YesterdayIKilledAMammoth | Sep 25, 2017 12:35:05 AM

Yes, I believe you could have an at least facially content-neutral law or rule about audience members whose noisy reactions are of such continuous duration and volume that they make delivery of the speech, as a whole (not delivery at any single moment), impossible. Such a rule would apply to audience members moved to ecstatic delirium by a speech, though that sort of reaction, of course, as opposed to intermittent applause, is quite rare. Now I guess - this isn't my area either - that some people would say that that was only a facially content-neutral rule; the whole point is to quell protest, and that we should treat it like a content-based regulation. Well, it isn't really intended to quell protest; only protest of such a volume and duration that it makes speech in an organized setting impossible. And in the aggregate of applications, the rule is quite neutral between viewpoints, as it protects speakers of all viewpoints from being silenced. So that's good enough for me, but as I'm always saying in these comment threads, I prefer these doctrines to be applied with a relatively light touch.

Posted by: Asher Steinberg | Sep 24, 2017 9:29:43 PM

I think your opening line here gives away the game: "the counter-speakers/hecklers/audience members **who attempt to shout down other speakers**"

It's not "the counter-speakers who attempt to have their own point of view heard," but rather "the counter-speakers who attempt to not let others be heard." Obvious difference there, I'd think.

Would we allow someone to just get a very large bullhorn and press the siren button in order to drown out a speaker? No. Would we allow the same person to simply scream through the bullhorn to drown out a speaker? Again, I think not. So, why would we allow you to replace the siren or screaming with any other sounds when your aim remains the same -- not to communicate an idea, but to prevent someone else from communicating theirs?

What's the difference between the boos and cheers, both of which temporarily drown out the speaker? Not content or viewpoint, but intent. The cheers are not intended to stop the speaker from being heard. Neither is an ordinary boo. An ordinary boo is in fact there to communicate an idea (something like "I disagree"). But, long, loud, continuous booing is obviously different, and is designed not to communicate but rather to stop someone else from communicating.

Perhaps I am a bit of a dotard, but I fail to see what the difficulty on this question really is.

Posted by: Derek Tokaz | Sep 24, 2017 8:05:37 PM

It's like with the national anthem protests. So long as you kneel during any country's national anthem (because they've all practiced slavery and have racist laws), it's content-neutral, i.e., it's not anti-American, or anti-Russian, or whoever is doing it.

But if you only kneel during the American anthem, but stand respectfully for the British or Japanese anthem, then it's clearly the content/country that you're protesting, not the policies--which all countries have.

Didn't kneeling begin when the North Korean soccer team starting taking the knee when Kim Jong Un took office?

Posted by: taking the knee, giving the knee to the groin | Sep 24, 2017 7:56:23 PM


I think you hit the NFL athlete on the knee, as they say. There's a difference between

(1) a momentary shouting (for less than a minute, every few minutes) during which the speaker can still be heard through most of this speech, and

(2) constant shouting throughout the entire speech designed to make it impossible to hear the speech.

A speaker generally expects to have to stop momentarily during a speech a few times for cheers of "USA, USA" or "Police and klan go hand in hand", but not to be drowned out during the majority of their speech to the point where someone couldn't hear enough of it to follow it.

Posted by: komono | Sep 24, 2017 7:27:34 PM

Howard writes: "So what is the difference between audience members whose jeering . . . make it impossible for him to be heard? Content and viewpoint."

This isn't my area, so maybe this is a dumb comment. But isn't the difference about control? When Donald Trump temporarily can't speak because his crowd is so enthusiastically supporting Trump that they are shouting over him, Trump is in control. He wants them to take over temporarily, and he is reveling in it; it's the goal, and if he wanted to stop them he could. Contrast that with (say) James Comey's recent address at Howard. Comey was pretty clearly not in control of those heckling him. The hecklers were trying to do what he didn't want, to stop his speech and make sure he wasn't in control. So loud noise that the speaker encourages and controls isn't problematic; loud noise that takes control away from the speaker is. Maybe this is an unsophisticated answer, or clearly wrong, but it seems like the intuitive difference that (as far as I can know) isn't about content.

Posted by: Orin Kerr | Sep 24, 2017 7:01:09 PM

The situation is not symmetric. The audience wants to hear the speakers, not the hecklers. That is a content-neutral basis the state can use to prefer the speakers through rules like room reservations (a first-come/first-served rule with greater clarity.)

Posted by: James Grimmelmann | Sep 24, 2017 6:30:44 PM

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