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Wednesday, June 07, 2023

Preferred first speaker, again

Reading (PA) police arrested a man for disorderly conduct for reading Bible verses (it sounds as if through a bullhorn or other amplifider) on the sidewalk alongside the Pride rally. Police insist the charges arose from the volume of his speech and not from reading the Bible. Several videos here.

This is the preferred first speaker in action, but in the traditional public forum of streets and sidewalks rather than a reserved lecture hall. The video shows the arresting officer asking the man to respect the ralliers and to "let them have their day." Adam Steinbaugh, an attorney for FIRE, makes two correct points: 1) "[S]peaking loud enough to be heard by a noisy crowd isn’t unreasonable. The police weren’t arresting people cheering at the event. That’s a stark display of viewpoint discrimination" and 2) "Speech people find offensive isn’t 'inconvenience.' It’s a manifestation of the 'verbal cacophony' that shows that the First Amendment means police can’t answer “inconvenient” or offensive speech with handcuffs."

Note the difference between Steinbaugh's (again, correct) analysis of this case and most discussions of Stanford, Yale, Hastings, and other cancellations-but-shout-down. No one has suggested that the Stanford students acted reasonably in jeering, snapping, and booing Judge Duncan, at a volume to be heard over Duncan's speech. No one has suggested that the First Amendment accepts "verbal cacophony"--quite the opposite, with everyone insisting the First Amendment demands civil discourse and the Stanford studewnts quietly and respectfully listening to what their better has to say, then perhaps asking polite-if-pointed questions.

So why the argument for different treatment? "Firstness" (again, the basis for the arrest) does not explain it; the ralliers were first speakers in that space by virtue of their permit; the Bible-quoting arrestee was an audience member responding and objecting to the first speaker, by Bible verses rather than snaps and jeers. "Shouting down" does not explain it; the arrestee engaged in counterspeech, at a volume and in a form that might make it difficult for the first speakers (the rallygoers) to speak as they wished or to be heard by willing audience members. He did not attempt to engage in civil discourse and he certainly did not intend to allow the ralliers to have their say in the manner they wished.

The remaining distinction involves the type of forum involved--designated-and-limited as opposed to traditional and open. Or we must sharply define what space constitutes the forum. Perhaps the lecturer's forum is the entire lecture hall (stage and audience area), while the rallygoer's forum is the sidewalk and parade route but not the adjacent sidewalk. (This supports the argument that loud protesters can stand outside the campus building--a distinct forum--and heckle to their hearts' content).

The point is the officer was wrong to arrest this guy (although he likely enjoys qualified immunity). And these cases are more complicated than everyone suggests.

Posted by Howard Wasserman on June 7, 2023 at 04:52 PM in First Amendment, Howard Wasserman | Permalink


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