THE HECKLER'S VETO TODAY.

AuthorWright, R. George

CONTENTS INTRODUCTION I. CLASSIC CASE LAW UNDERSTANDINGS OF THE HECKLER'S VETO II. THE NATURE AND SCOPE OF THE HECKLER'S VETO: SOME EMERGING JUDICIAL ISSUES III. THE HECKLER'S VETO IN THE AMERICAN EDUCATIONAL SYSTEM A. The Public School Context B. The University Speech Context CONCLUSION INTRODUCTION

The idea of a heckler's veto over disfavored speech has been familiar for more than half a century. (1) Roughly put, the heckler's veto doctrine holds that opponents of a speaker should not be permitted to suppress the speech in question through their own threatened or actual violence. (2) As it turns out, though, the meaning, status, and scope of the idea of a heckler's veto are today surprisingly far from clear. (3) Part II considers the relevant case law. Part III discusses related events and commentary. This Article concludes that American legal culture is unlikely to arrive at any consensual resolution of many of the conflicts and uncertainties in question. Understanding why no such consensual resolution of basic heckler's veto questions is likely to shed light on the nature of contemporary legal and political controversies more generally. The Conclusion below focuses in particular on the broad contemporary phenomenon of what might be called reduced forensic confidence.

If the status, scope, and meaning of the heckler's veto are indeed irreconcilably contested, there is probably no entirely neutral grounds on which to begin any analysis. Merely for the sake of setting this inquiry in motion, however, this Article begins with some provisional understandings of the basic idea. Typically, the possibility of a heckler's veto arises when there is, in one context or another, three elements: 1) a potential or actual speaker; 2) an audience, at least part of which is somehow hostile to the speaker or the speech; and 3) some actual or potential police or other security presence. (4) The possible variations on these three elements, and their interactions, are numerous.

One respected vision of how these elements of speaker, hostile audience members, and police may generate heckler's veto scenarios is that of the distinguished constitutional scholar Harry Kalven, Jr. (5) Professor Kalven discusses the idea of a heckler's veto most extensively in the context of a particular Supreme Court case that seems to accommodate, rather than disallow, a heckler's veto. (6) On Professor Kalven's account, the basic heckler's veto problem arises when the underlying speech, to which the presumed heckler objects, does not involve invidious epithets or what the law refers to as "fighting words." (7) The underlying speech is in itself legally permissible. In a heckler's veto case, "[t]he risk of disorder arises because the audience, or some of it, does not like what the [speaker] is saying and wishes to stop it." (8)

Professor Kalven indicates that "[i]n the abstract, if the state did not like what [the underlying speaker] was saying, it would be powerless to silence him. In [the heckler's veto] situation, however, it can claim neutrality." (9) He then elaborates, pointing to what he takes to be a key dynamic of the heckler's veto situation:

[B]y giving the police wide discretion to stop the speaker because of audience hostility, the state ... in effect transfers the power of censorship to the crowd. Moreover, the police are likely to share the views of the angry audience; hence, their perception of the unrest may be colored by their assessment of the speaker's message. (10) Professor Kalven's account offers a tentative mainstream account of the most basic nature of a heckler's veto, and some of its implications.

For the sake of slightly greater convenience, this Article might focus as well on a simpler formulation of the idea of a heckler's veto. Thus very roughly, "[a] heckler's veto is the suppression of speech by the government ... because of the possibility of a violent reaction by hecklers." (11) The analysis below will involve an unpacking and critique of these basic mainstream formulations of the idea of a heckler's veto, as it illustrates the fracturing and fragmentation of the superficially clear idea of a heckler's veto.

  1. CLASSIC CASE LAW UNDERSTANDINGS OF THE HECKLER'S VETO

    The historic case law of the meaning, scope, and status of the heckler's veto has itself displayed a number of important conflicts and uncertainties. Below, this Part briefly considers some of the more note worthy judicial markers in the evolution of heckler's veto doctrine. (12) For the sake of not pre-judging any important analytical issues--and for a sense of the doctrinal development over time--these cases are taken up in chronological order.

    This Article could begin the historical exposition at any number of points, but the 1940 case of Cantwell v. Connecticut (13) provides an instance in which speech in what is called a traditional public forum, (14) is constitutionally protected despite the distinctly hostile reaction of the two relevant listeners to the speech in question. (15) Cantwell's two initially consensual listeners to his anti-religious and anti-Catholic speech "were in fact highly offended." (16) In this instance, offense at least momentarily threatened to transition into physical violence against the speaker. (17) Thus one of the two hearers "said he felt like hitting Cantwell and the other that he was tempted to throw Cantwell off the street." (18)

    Cantwell's speech was in the end constitutionally protected, largely on the theory that even explicit criticism of a listener's own religion should not count as unprotected "abusive remarks directed to the person of the hearer." (19) The Court in Cantwell found an intent to persuade, and an absence of any personal epithets (20) or intentional discourtesy (21) on the speaker's part. If there is any "abuse" in Cantwell's speech, it is thought to operate at the level of abstract, generalized religious belief, as supposedly distinct from anything that would count as personal, or identity-threatening, abuse. (22)

    The sense that hostile audience reactions to offensive speech should, generally, not legitimize the arrest or other forms of censorship of the speaker was then reinforced in Terminiello v. City of Chicago. (23) Terminiello involved indoor speech to a primarily, but not entirely, supportive audience of about 800, (24) with about 1,000 protestors outside the auditorium. (25) The police were not able to prevent several disturbances, (26) and the speaker was convicted of a breach of the peace. (27)

    The Court in Terminiello noted that under the breach of the peace statute, as authoritatively construed, the speaker could have been convicted "if his speech stirred people to anger, invited public dispute, or brought about a condition of unrest." (28) The Court ruled this instruction constitutionally impermissible. (29) In now-classic terms, the Court declared that

    [A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. (30) As bracing as this language may be, it is unclear how concretely descriptive of the circumstances in Terminiello it really is. Generally, the protesters outside the hall did not hear, and thus could not have been reacting to, any words uttered inside by Terminiello. (31) The disruptive and disorderly conduct of the protesters outside the auditorium was clearly inspired by Terminiello's pre-existing reputation and by his language on other occasions, and was well underway long before Terminiello even began to speak. (32) In any event, the Terminiello Court sheds little light on issues of permissible provocation, agitation, precipitation, or inducement of a response, and on punishable direct incitement of a criminal response to speech. (33)

    Nor is it clear that the Court's bracing references to the "high purpose" (34) of free speech, or the value of attacking "prejudices and preconceptions," (35) relates especially well to much of Terminiello's actual language, which involved a combination of antisemitism and recourse to epithets (36) such as '"slimy scum,' 'snakes,' 'bedbugs,' and the like." (37) It would be entirely reasonable to think of Terminiello's literally dehumanizing, if rhetorical, references as something other than an attempt to persuade through candid and mutually responsive dialogue. Nor is the belief, at a literalist level, that one is not reducible to slimy scum, or to a snake, or to a bedbug, reasonably characterizable as a "prejudice or preconception]" (38) of which one might be disabused through persuasive speech.

    Finally, one might note that the bracing rhetoric (39) of the Terminiello opinion may not seem equally appropriate in all speech contexts, or even in all sorts of public fora. (40) At a minimum, it must be separately argued that the rhetoric of the Terminiello opinion should apply to public university contexts, where a range of distinctive values are potentially at stake. (41) It is far from clear whether the logic and the rhetoric of the Terminiello opinion should typically apply to public elementary and high school speech that might well evoke a hostile audience response. (42)

    Less than two years after deciding Terminiello, the Court reconsidered the interests at stake in the context of heckler's veto cases in Feiner v. New York. (43) Feiner involved speech promoting a forthcoming meeting and criticizing national and local public officials and organizations, with a general substantive speech theme of racial equal rights. (4) 4 Feiner's oration, delivered on a public sidewalk, resulted in his disorderly conduct conviction, (45) ultimately upheld by a divided Supreme Court. (46)

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