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Wednesday, April 18, 2018

What is a heckler's veto?

Paul's post about reexamining the doctrine surrounding the heckler's veto, in response to some comments on this post, leads to an open question: What is a heckler's veto and what is the doctrine surrounding heckler's vetos?

The phrase "heckler's veto" appears only 12 times in the U.S. Supreme Court's database, often in dissents or in passing, including in two non-free-speech cases. None involves the paradigm cases, which I think are the following: 1) Police arresting or restricting a speaker because the people around him become violent and threaten to hurt the speaker or damage property (this is TerminielloFeiner, and the Nazis in Skokie); 2) Laws setting a legal standard that burdens a speaker because of actual or anticipated audience reaction (this is Forsyth County); and true no-platforming, in which a university denies or rescinds a speaker invitation or permit in response to threats of disruption. Close to the center are cases in which police or other authorities do nothing and allow the hecklers to attack or otherwise physically disrupt the speaker (there might be a DeShaney problem here, unless the speaker can show the failure to act was because of his speech). The point is that overnment must do something (or refrain from acting for a speech-discriminatory reason) to create the veto. The doctrine is clear--such vetoes are impermissible,* at least outside of narrow contexts (such as the community standards prong of obscenity or the "disruption" concern for student speech) or if there is a compelling interest in not having to spend hundreds of thousands of dollars on security.

[*] Although Feiner famously came out the other way, the prevailing view is that this no longer is good law.

The question--and there is no Supreme Court doctrine on this--remains if and when literal heckling, as a form of expression, becomes a heckler's veto without government action to halt the original speaker. Is it a heckler's veto if police or government officials do nothing and two speakers talk over one another until one gives up or is unable to proceed? We have to answer that question before we can figure out whether the heckler's veto doctrine must be reconsidered, because it is not obvious how that doctrine applies to these situations in the first place.

Posted by Howard Wasserman on April 18, 2018 at 09:31 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink


Here is a good one , in a campus , how to form balance , between free speech right , and other rights ( ruling for preliminary injunction ) :



Posted by: El roam | Apr 18, 2018 2:06:25 PM

To be honest , I don't understand what seems to be the problem here . The free speech is a constitutional right. Yet , as any other constitutional right , can be limited or restricted due to other competing rights . As such , the issue , is not the free speech , for the latter is obvious ( as a general right ) . But :

The issue is , what are the competing values , rights , and more specifically , the situations , the occurrences , that would prevail , over the free speech . It is a simple issue , of building up , jurisprudence . We shall illustrate it , in a very simple manner :

A person has the right for good reputation . Yet , it is not an unlimited right . Free speech can take it over . If a person calling the other " idiot " , it has harmed the reputation of that " other " . Yet , not that much , that , the free speech of the speaker , would be limited. Why ?? Simply :

No reasonable observer ( third party ) would perceive it literally so , that the " other " is really an " idiot " . So when ?? Well , if the other , has invented , a factual false story , that the other one , is a public official , who is corrupt , and has taken bribe . All , while knowing clearly that it is false . Then :

Free speech may be restricted ( in retrospect , but with implications for future behavior of course of others ) .
So , not for " idiot " , yes for malicious intentional act , which may severely harm the good reputation of an individual .
The same for protests of any kind . One should decide , what can be permitted V. what can be restricted. If for preventing an offense , yes ! if for preventing very hypothetical occurrence of an offense , then not !!

But , it is enough to understand , that such right of free speech , is not unlimited. That is a matter of fact . A person , can't petition for obtaining highly classified national security information , and simply get it , due or thanks to his free speech right .


Posted by: El roam | Apr 18, 2018 1:24:08 PM

1: I’m also a little worried about the fortitude argument, at least insofar as it is treated as a legal matter. I have no objection to valorizing and encouraging fortitude, a la Brandeis in Whitney. And concerns about normalizing “snowflake” reactions which you voiced in your earlier comment are not invalid. But I worry about their being ratcheted up, and I think the point about gender or other concerns is well worth considering, even if one thinks fortitude is a valuable civic trait that is clearly not limited to or only within the capacity of particular citizens.

Part of the answer, I think, is that different reasonably fair or rational formats for speech build in their own norms or rules for sound behavior within the context of that event and tell us something about what degree of fortitude should be required in that context. I expect a speech in Parliament to be interrupted by the opposition and cheered by my own side, and must have enough fortitude to bear a well-aimed barb. Where I’m giving a lecture in the classroom with a clear format and set of expectations, I need not have enough fortitude to bear endless heckling by students, let alone people who are not enrolled in the class or the school. At a public lecture with an announced Q&A session, I may need the fortitude to take impertinent or hostile questions, or to accept minimal interjections. But it is not consistent with that format for protesting audience members to crowd me, surround the podium or dais, and so on. I might have the fortitude to deal with that, whether it’s intended to intimidate, is not intended but has that effect, or neither. But the function and format have something to say about my reasonable expectations and the audience’s reasonable understanding of its own obligations. Where the format is clear and fairly arrived at by the public actor hosting the event, the speaker can choose to engage in that speech activity or not, the audience can make the same choice, and I don’t think any fortitude expectations should be superadded beyond those inherent in the event and format.

That suggests a second point, which is that this requires a host that is willing to make clear the expectations beforehand and insist that they be followed, including removal or discipline where they are not. Even in the more free-for-all environment of Question Period, there is a Speaker, and she may and will rise at relevant moments to impose silence and restore order, and has (or the body willing have and should exercise) some disciplinary authority. (All this of course is part of the general set of ideas behind the heckler’s veto doctrine.) In the case of a formal lecture with a Q&A session, whatever the precise limits of permissible conduct are, they should be announced and enforced as necessary, and certainly not based on a shifting view of what “fortitude” the speaker ought to have beyond that necessary to engage in that form of speech. If a speaker is surrounded by hostile attendees at the podium, beyond any normal expectations at such an event, an official must be willing to tell them to take a seat in the audience or leave. There is ample room to discuss and disagree about what the norms and rules should be. But if no official is willing to act where those limits—whatever they are or should be—are violated, there’s less point in talking about what the rules should be at all. The possibility that public speakers should expect some heckling is intimately connected to the need for an official to enforce whatever the limits on that heckling are.

Posted by: Paul Horwitz | Apr 18, 2018 11:56:41 AM

Another wrinkle is whether "fortitude" is a gendered concept or whether the law should presume that every speaker has the same innate instinct and ability to face down bullying and harassment. There's something counterintuitive in deciding only to protect the speech of the strongest.

Posted by: Anon | Apr 18, 2018 10:49:50 AM

" (My personal view is that there ought to be civility norms, rather than strong legal ones, governing this issue, and that those norms appropriately vary from institution to institution -"

There are 'civility norms'. They're just applied in a sectarian fashion, because that's what a section of the faculty and administrators want and its status-lowering for anyone not on board to complain about it. If you want an actual civility norm, the impetus has to come from outside the institution.

Posted by: Art Deco | Apr 18, 2018 10:17:21 AM

Very nice points. I think we do have some understanding about the poles of true heckling: The occasional intermittent interjection -- Representative Wilson's "You lie" to Barack Obama -- does not trigger concern about a "veto," and it might even be impermissible (as a restriction on the heckler's free speech rights) to impose a sanction/remove the heckler from the venue. At the other pole, actually shouting down a speaker (whose presence in the venue occurs because s/he has satisfied some neutral rule about access, such as "first come, first served") is impermissible, and the state has an affirmative duty to sanction the hecklers/remove them from the venue. (The "duty" argument is complicated because it has to overcome the ordinary presumption that we have a constitution of negative liberties.) There's one qualification: The speaker has to have some degree of fortitude, and can't simply pack up and leave, saying s/he's been shouted down when faced with sporadic heckling (my sense of the Christina Hoff Sommers incident is that she didn't satisfy this requirement). Of course there are going to be questions about whether in any specific case the heckling was severe enough to get us to this extreme. What we don't have a good sense of is what to do about intermediate situations -- or maybe, ones in which some people think the heckling was severe enough to shut down even a speaker of moderate fortitude and others think it was not. (My personal view is that there ought to be civility norms, rather than strong legal ones, governing this issue, and that those norms appropriately vary from institution to institution -- so that Wilson's "You lie" might well have been uncivil in the setting of a State of the Union address, but the equivalent wouldn't be uncivil at a political rally [and might not be, though it's a closer question, at a speech sponsored by a recognized student organization].)

Posted by: Mark Victor Tushnet | Apr 18, 2018 10:09:36 AM

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