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Monday, April 17, 2023

FIRE adopts preferred first speaker

According to FIRE Executive VP Nico Perrino, in an op-ed endorsed by the Chief of the LAPD. Here is the central basis for the claim:

Protesters have every right to engage in peaceful, nondisruptive protest. But they do not have the right to take over someone else’s event and make it their own. This is a basic point, and we understand it in almost every other context. Nobody argues that you have a free speech right to stand up during a Broadway musical and sing along with the actors or to scream at a public library book reading.

Just because the public is invited to attend an event — and sometimes to speak during a Q&A period — does not make it the public’s event to disrupt or transform as it pleases. Your distaste for a speaker doesn’t grant you a right to prevent a willing audience from listening to that speaker.

There must be places in a free and pluralistic society where groups can freely associate and share ideas without first seeking approval from a crowd of hecklers. Colleges are such spaces. It’s the very reason they exist.

The first speaker has full First amendment rights and can say or not say what he wants. Counter-speech is proscribed--peaceful (must all speech be "peaceful') and not interfering with the first speaker (who presumably can speak over the counter-speaker). Maybe the counter-speaker has a right to speak during Q&A. But the first speaker controls who gets to speak in that window and presumably can ignore any counter-speaker or any audience member who wants to challenge what he says.

Perrino works off the paradigm of the Judge Duncan/Stanford debacle--invited speaker in a reserved speaking space on a college campus with an audience space that likely is a non-public forum.I see three big problems with Perrino's argument. But he draws from that paradigm a general principle: counter-speaking to and over a speaker in the moment is not protected speech.

I see several problems with that focus and that conclusion.


1) Perrino may be broadly right about that paradigm. He tries to bolster the point that "[n]obody argues that you have a free speech right to stand up during a Broadway musical and sing along with the actors," bolstered by a recent story about audience members singing "I Will Always Love You" during the finale of the show The Bodyguard.

Rather than "heckling is never protected speech," a better framing is "heckling is protected speech, but it yields to content-neutral rules in a forum." This may seem semantic, but semantics matter. A rock concert is protected speech, although it may have to follow neutral noise regulations; driving around town playing music and speaking through a speaker is protected speech, although it may yield to neutral noise regulations. If heckling is never free speech,  it remains unprotected when the forum-and its rules and expectations--changes. While the audience should not sing along at a musical, the audience does (and the performers expect the audience to) sing along at a rock concert in the same theatre. Cheering speech at a soccer match looks different than cheering speech at golf tournament.

2) The premise that "heckling is never protected speech" affects what counter-speakers must do and the form of counter-speech FIRE's solution is the alternative program--find a room elsewhere and express your ideas to a separate audience. But that is not counter-speech or protest, as it does not allow counter-speakers to be heard by, respond to, or protest their target.

Counter-speakers could instead take to a nearby public forum (e.g., a public campus space near the building containing the reserved space) and protest there. But Perrino's view forecloses that option. If heckling is never protected speech, then counter-protesters cannot heckle in a traditional public forum; the original rally or demonstration remains s "someone else's event" that counter-speakers "take over" (at least to the extent they are loud and can be heard). That traditional public forums allow for competing groups to be heard or that the rules account for "prolonged, raucous, boisterous demonstrations" does not appear to matter.

Worse, it carries to speakers and counter-speakers occupying the same public forum. Thus, counter-protesters on the of the U Va sidewalks cannot outnumber and outspeak the Proud Boys walking on the campus streets chanting "Jews will not replace us." Pro-equality protesters on the sidewalks around city hall cannot outnumber and outspeak the Klan or Nazis holding a rally on the steps. Students at FIU cannot outnumber and outspeak the bigoted "preacher" using the quad. This is an impoverished view of the role of counter-speech.

3) Perrino's analysis is incomplete within his reserved-classroom paradigm because he does not define "peaceful" or "nondisruptive." If peaceful means non-violent, the word does nothing--neither original nor counter speech can be violent. If peaceful means silent or nonverbal, that proves too much. Audience members can react out-loud to speech--booing, hissing--up to some undefined point of disruption. (Stanford Dean Jenny Martinez recognized this in her post-Duncan letter). No one has defined disruption--whether it means preventing the reserved event but does not include momentary reactions that cause the speaker to pause or delay but that do not undermine the event.

Positive non-silent reactions--applause, laughter, cheers, snaps--may cause the speaker to pause or delay; speakers build those delays into their speeches. If the forum rules prohibit non-silent reactions, they must prohibit positive and negative reactions. Otherwise, the rules cease to be viewpoint neutral, as required in a non-public forum.

4) Perrino doubled-down in a Twitter thread, arguing "[i]f you take over someone else's event, call it what it is: punishable civil disobedience, not free speech." On this point, I would recommend Jenny Carroll's (Alabama) forthcoming Yale L.J.  article arguing for a First Amendment civil-disobedience affirmative defense to crimes (e.g., trespassing) arising during protests; the idea is to allow juries to consider the expressive nature of the person's (prohibited) conduct and acquit accordingly. I wonder how the defense would apply in the context of a disruptive counter-protester.

5) That the police chief seized on the simplest version of Perrino's argument--based on the headline that Perrino may not have written--raises further red flags.

6) Perrino (and FIRE) overuse "heckler's veto." Perrino criticizes those who argue that hecking is "'more speech,' not an attempt to carry out a 'heckler’s veto' on the speaker." A heckler's veto occurs when government silences a speaker out of fear of the audience reaction to speech. It might extend to a complete prohibition on a speaker (e.g., the speaker must cancel the event) where government officials fail to enforce a forum's regulations against a hostile audience; Duncan could have become a heckler's veto had the students pushed further. Absent government action and the speaker being prevented from speaking, it is neither fair nor appropriate to call counter-speech a heckler's veto. This framing accepts and instantiates the preferred speaker. It assumes a  "first" speaker and gives him preferred status. It assumes that one speaker has priority, that anyone on the other side is a heckler rather than a speaker, and they censor, rather than counter-speaking or presenting competing ideas, censor. The Proud Boys at U Va have priority over their critics, their critics are not speakers, and their critics do something wrong by appearing in larger numbers and  uttering their message more forcefully.

7) I have made this point before. Under Perrino's argument, the pro-Ally/anti-Nazi patrons of Rick's engaged in a heckler's veto or acted as censors here. Or the rules of Rick's as a forum are different than the rules of a classroom at Stanford Law School. But the "heckling is not free speech" cannot stand as a blanket principle.


I plan to return to the preferred first speaker this summer, although I have been struggling to figure out how to approach the problem. This offers some organizational ideas.

Posted by Howard Wasserman on April 17, 2023 at 10:01 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink


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