The First Amendment does not protect the Heckler’s Veto
Last week’s protests and mini-riot that prompted Donald Trump to cancel a rally in Chicago were the latest example of a concerted effort to disrupt candidates’ campaigns.
As Trump edges closer to locking up the Republican nomination, such agitation will likely grow more frequent and more extreme. The questions, then, are what limits hecklers from interrupting campaign events, and does enforcing those limitations work.
Legal Restraints on Hecklers
Two preliminary matters, though.
First, although there is some First Amendment protection for “speech” in the form of physical action, it is inapplicable for this conversation. Storming the stage is not protected speech; it is likely assault. If a protester crosses the line and lays hands on a candidate or somebody attending an event, that would be battery, at a minimum.
Second, the First Amendment does not grant an absolute right to speak or protest. There are a variety of limitations depending on the context. It is ironclad law that reasonable “time, place and manner” limitations on speech are permitted under the Constitution.
In my personal view, the time, place and manner exception is beginning to eat up the free speech rule, in part because I believe there is a legitimate and necessary place for spontaneous and/or unusual forms of protest that do not and cannot comply with time/place/manner bureaucracy. In any event, Constitutional limitations on speech exist.
In this context, Professor Eugene Volokh wrote at the Washington Post that those permissible limitations have been codified in part in laws restraining hecklers:
Many states outlaw “disturbing lawful assemblies,” which would include campaign rallies, whether on public property or private. . .
Attempts to shut down an event, for instance by shouting down a speaker, blowing whistles so that the speaker can’t be heard, rushing onto the stage and the like would thus be illegal. This is important both because the police can then arrest the disrupters, and because security guards and ordinary rally attendees could then legally use reasonable, non-deadly force to stop the disruption (more on that later).
Mere “heckling” alone, in the sense of periodic shouts or jeers, or even continuing catcalls that fail to actually prevent the speaker from being heard is not enough. According to Prof. Volokh, the elements necessary before mere heckling rises to illegal interference with an event are whether the heckler:
1. “substantially impaired the conduct of the meeting by intentionally committing acts”
2. “in violation of implicit customs or usages or of explicit rules for governance of the meeting, of which he knew, or as a reasonable man should have known,” [and]
3. “the defendant’s activity itself — and not the content of the activity’s expression — substantially impairs the effective conduct of a meeting.”
The “substantially impaired” piece means that it has to be more than a passing interference. Blowing an air-horn in a conference hall during a speech would interfere, certainly, but blowing it once then stopping probably would not be “substantial” enough to warrant arrest; blowing it continuously and drowning out the speaker probably would be. The interruption also has to be more than what everybody knows is acceptable. Booing a candidate no matter how vigorously will probably not support a conviction, because it is within the realm of normal responses at a campaign event.
The reference to “the content of the activity’s expression” incorporates the core First Amendment requirement that any limitations on speech be “viewpoint neutral.” Two protesters doing the same things but conveying different opinions are entitled to equal protections. Treating a pro-choice protester differently than a pro-life protester behaving in the same way is “viewpoint discrimination” and the worst possible sort of First Amendment violation.
Putting this together, the protesters who entered Trump’s Chicago rally and created such chaos and commotion that he could not speak could probably be charged with an offense that would pass muster under the First Amendment.
That does not necessarily mean that conducting arrests was the best thing for the police or the campaign in this instance. For police, clearing the convention hall of protesters would have taken a long time and could easily have provoked an all-out riot and serious danger to health and property. If the mass of humanity outside the event saw police pouring in and handcuffed protesters hauled out, there is no telling what would have happened.
For the campaign, having the police clear protesters signals weakness and can rally support behind the protesters. The rally was doomed regardless, and escaping with minimal consequences was a positive result.
The problem, of course, is that Trump didn’t get to speak, and the audience didn’t get to hear him. This is known as the “Heckler’s Veto.” Protesters are so unruly and the situation so out of control that event organizers or police deem it too dangerous to proceed and shut it down. The protesters thereby obtain a de facto veto over speech they dislike.
This is a practical rule, not a legal rule. In fact, the law require police to provide speakers at least some amount of protection against a violent crowd before the speaker can legally be silenced for his or her own benefit.
In October, the 6th Circuit heard a Heckler’s Veto case in October, and held that police violated the First Amendment rights of a small group of Christian’s spouting explicitly hateful and anti-Islam propaganda at an Arab festival by refusing to protect them from an aggressive and violent crowd. Instead, the police forced the Christians to leave. The Court summarized:
the answer to disagreeable speech is not violent retaliation by offended listeners or ratification of the heckler’s veto through threat of arrest by the police. The adults who did not join in the assault on the Bible Believers knew that violence was not the answer; the parents who pulled their children away likewise recognized that the Bible Believers could simply be ignored; and a few adolescents, instead of hurling bottles, engaged in debate regarding the validity of the Bible Believers’ message. Wayne County, however, through its Deputy Chiefs and Corporation Counsel, effectuated a constitutionally impermissible heckler’s veto by allowing an angry mob of riotous adolescents to dictate what religious beliefs and opinions could and could not be expressed. This, the Constitution simply does not allow.
Bible Believers v. Wayne County, Michigan, No. 13-1635, slip op. (6th Cir., Oct. 28, 2015).
The police did not order Trump to cancel his event last week. He and his advisers simply concluded that it was too dangerous to proceed, even if the police would have allowed it.
This sort of self-censorship raises its own issues. In giving up the podium, organizers signal protesters that they will cancel again if the atmosphere is adequately dangerous, creating an incentive for protesters to be ever more extreme. If the campaign then resists the next time, it becomes a game of chicken with protesters growing more volatile and organizers refusing to cave.
There is no great answer. Ideally, of course, we would conduct ourselves as members of a democracy and protest rather than intimidate, threaten or riot. More realistically, campaigns and police need to be vigilant for signs of concerted plans to disrupt events and who might participate, and to be prepared to quickly prevent that from happening. There is no constitutional right to attend a rally, and to the extent there is indication that somebody intends to disrupt an event, that person need not be allowed in.
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