AuthorSchauer, Frederick
PositionContemporary Free Speech: The Marketplace of Ideas a Century Later

In my own newly famous city of Charlottesville, Virginia, (1) as well as in Berkeley, (2) Boston, (3) Gainesville, (4) Middlebury, (5) and an increasing number of other locations, (6) individuals and groups engaging in constitutionally protected acts of speaking, marching, parading, protesting, rallying, and demonstrating have become targets for often-large groups of often-disruptive counterprotesters. (7) And although most of the contemporary events have involved neo-Nazi, Ku Klux Klan, and other white supremacist speakers who are met with opposition from audiences on the political left, it has not always been so. Indeed, what we now identify as the problem of the hostile audience (8) has often involved more sympathetic speakers confronted by less sympathetic audiences. (9) Yet although the issue is hardly of recent vintage, contemporary events have highlighted the importance of reviewing the relevant constitutional doctrine and of thinking again and anew about how, if at all, the government and the law should respond to the disruptive audience. Indeed, the immediacy of the issue is exacerbated by the way in which existing legal doctrine on the question is less clear than is often supposed. It is now widely believed that restricting the speaker on account of the actual or predicted hostile and potentially violent reaction of the audience gets our First Amendment priorities backward. (10) But it is hardly clear that this belief was ever correct, and, even if it were, it is even less clear that it is sufficient to deal with the constitutional and policy complexities of many of the contemporary encounters. (11) It seems appropriate now to revisit this problem of the hostile audience, not so much to urge a change in existing understandings and legal doctrine as to emphasize how many open questions still remain, and how current events might bear on possible answers to these questions.


    As has been extensively documented, (12) in 1977 a group called the National Socialist Party of America, self-described as Nazis and led by a man named Frank Collin, proposed to conduct a march in Skokie, Illinois. The neo-Nazi marchers chose Skokie as their venue precisely because of its substantial Jewish population, (13) which at the time contained an especially large number of Holocaust survivors. (14) And not only did the neo-Nazis select Skokie as a venue in order to inflict the maximum amount of mental distress on Jewish residents, but marchers also, and for the same reason, planned to carry Nazi flags, display the swastika, and wear Nazi uniforms, jackboots and all. (15)

    Despite the efforts of the Village of Skokie (16) to prohibit the event, the Nazis' First Amendment right to hold the march was upheld both by the Supreme Court of Illinois (17) and by the United States Court of Appeals for the Seventh Circuit. (18) And although the United States Supreme Court's denial of certiorari (19) was technically not a decision on the merits, (20) the events were so prominently publicized that the Court's refusal to hear the case with full briefing and argument was widely understood by the public, and presumably by the members of the Court as well, as a strong statement that the Nazis' right to march was by then clearly established in constitutional doctrine. (21)

    Although the Nazis prevailed in several courts and thus won their right to march when, where, and how they had proposed, it is often forgotten that the march never happened. The Nazis wrapped themselves in their legal victory, but at no time did they actually exercise, at least in Skokie itself, the right that they had won in court. They did hold similar but small events in Chicago on June 24 and July 9, 1978, both without benefit of permit, but the permit they were eventually granted to march in Skokie on June 25 remained unused. (22)

    We are still not sure why the Nazis never marched in Skokie. Perhaps they disbelieved Skokie's representation that the town would make "every effort to protect the demonstration]. . . from responsive violence." (23) Perhaps the Nazis viewed their legal victory as more important than the march itself. Or perhaps the publicity surrounding the event made it seem more desirable to the Nazis to march in front of what they hoped would be a larger audience in Chicago. But whatever the reason, the Nazis never marched in Skokie, and thus we do not know what actually would have transpired in Skokie had the Nazis elected to march there.

    Because the Skokie march did not take place, we can only speculate about the answers to some number of further potential questions. Some of those questions relate to law enforcement. Assuming that there would have been far more objectors than Nazis (24)--far more counterprotesters than protesters, in the contemporary terminology--and that at least some of those objectors would have been inclined to physically confront or assault the marchers, would the Skokie police department have attempted to prevent the physical encounters and, if so, how, and with how large a force, and with what degree of aggressiveness? And if Skokie's police department, even assuming its best efforts, had not been up to the task simply because of the sheer size and anger of the hostile audience, would the Illinois State Police have stepped in? The Cook County Sheriff's Office? The Illinois National Guard? Would Illinois state authorities have requested federal assistance to protect the exercise of what was and still is, after all, a federal constitutional right? (25) Would federal force have been employed to enforce a constitutional right and a judicial order, even absent a request from the state, as happened when President Eisenhower sent federal troops to Little Rock in 1957? (26) These are all factual and historical questions rather than normative or doctrinal ones, but they suggest a number of issues that are indeed normative or doctrinal, or both, about which the current doctrine provides few answers. The question presented by the Nazis' nonmarch in Skokie, and the question presented by so many of the contemporary events, is thus the question of the hostile audience: Assuming the existence of a group or of individuals otherwise constitutionally entitled to say what they want to say where they want to say it, or where they would otherwise be allowed or authorized to say it, then how does the existence of an actually or potentially hostile audience change, if at all, the nature of the speaker's rights or alter, if at all, the obligation, if any, of official responsibility to protect the speakers and their speech?


    One motivation for this Article, even apart from the way in which current events have highlighted the problem of the hostile audience, is that there is less settled law on the questions raised at the close of Part I than we might have supposed. But what law there is dates to 1940, and the case of Cantwell v. Connecticut. (27) Jesse Cantwell, like so many of the individuals who helped forge the modern First Amendment tradition, was a Jehovah's Witness. (28) He, along with his brother and father, set himself up on a street corner in New Haven, where he attempted to sell books and pamphlets in a neighborhood that was approximately ninety percent Catholic, while also playing a phonograph record vehemently attacking the Catholic Church. (29) The content of the record angered several onlookers, one of whom testified that he "felt like hitting" Cantwell if Cantwell did not leave immediately. (30) In fact, he did leave when confronted, but Cantwell, his brother, and his father were nevertheless charged with "breach of the peace" under Connecticut law. (31) The convictions of the brother and father were reversed by the Supreme Court of Connecticut, but Jesse's was upheld. (32) The U.S. Supreme Court, however, reversed the conviction as a violation of the First Amendment, with Justice Roberts writing the unanimous opinion. (33) The Court did hold out the possibility that a conviction might be upheld were a speaker to use profane words, indecent language, epithets, or personal abuse directed specifically at particular listeners, (34) or were a statute to have been aimed precisely at conduct such as Cantwell's and have incorporated a legislative finding that such conduct constituted a clear and present danger. (35) But because Cantwell was prosecuted only under the general common-law notion of breach of the peace, (36) and because there had been no profane or indecent direct personal abuse, the Court concluded that Cantwell's conviction could not stand. (37)

    Although the Cantwell Court did suggest that the reactions of listeners could justify punishing a speaker if the speaker had targeted specific listeners with profane, indecent, or abusive language, (38) or if a legislature had specified the kind of language that might create a clear and present danger on the basis of listener reaction, (39) the case says next to nothing about what a legislature would need to specify to meet this standard, and nothing at all about whether speakers, as opposed to listeners, could be the appropriate objects of legal sanction. And because the audience in Cantwell consisted only of a few people to whom Cantwell had generally addressed his words and his recording, the decision in its entirety is at best a precursor to the hostile audience problem, and appears to be more of an angered-listener case than a hostile audience one. (40) The first true hostile audience case was yet to come, but arrived nine years after Cantwell, in Terminiello v. Chicago, (41) a decision worthy of more extended discussion.

    Arthur Terminiello, a suspended Catholic priest, had been invited to Chicago from Birmingham, Alabama, to deliver a well-publicized and virulent anticommunist and anti-Semitic speech. In the speech, Terminiello referred, inter alia, to "atheistic, communistic...

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