Image 01 Image 03

When Does Heckling Become Harassment?

When Does Heckling Become Harassment?

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.

Practical Considerations

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.

Trump Protest Chicago Man Inside

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.

Follow Jonathan Levin on Twitter @JNLevin


Donations tax deductible
to the full extent allowed by law.


Huskers4Palin | March 16, 2016 at 7:38 pm

getting on the stage is not heckling….it’s dangerous for your health

Huskers4Palin | March 16, 2016 at 7:40 pm

nor is throwing sucker punches

Huskers4Palin | March 16, 2016 at 9:19 pm

or BLM hitting cops

lawprofsteve | March 16, 2016 at 9:57 pm

I’m having trouble with your First Amendment analysis. It seems to me that everything you say would be correct if the event was a government sponsored one. For example, a program at a State university.

But here we have a private citizen, Trump, renting a hall for his own purposes. Presumably he can control who goes in and goes out however he wants to. If a ticket is required to attend, it is undoubtedly a revocable license.

Am I missing something here or is the 1st amendment inapposite here?

    Milhouse in reply to lawprofsteve. | March 16, 2016 at 11:59 pm

    He can revoke hecklers’ permission to be on the property and require them to leave, and if they refuse he can have them removed by force, but he can’t have them arrested. This article is about what people can actually be arrested for.

      janitor in reply to Milhouse. | March 17, 2016 at 1:11 am

      If you are seized by the police and removed from a venue, you are effectively “arrested”. If you are told to leave by the person who is in lawful possession of premises and refuse to do so, you are trespassing. If you carry on inside or outside of the venue you are disturbing the peace. If you refuse to be removed by a police officer you are resisting arrest. And if you use threatening words or actions coupled with the apparent ability to commit harm on a person, you also may have committed simple assault.

        Milhouse in reply to janitor. | March 17, 2016 at 9:17 am

        The police can only seize you in the first place if you have been told to leave, by a person who is authorized to do so, and you refuse. They cannot touch you for what you did to get evicted, unless there is a valid state law against it, and such laws are constrained by the first amendment. That is what this article is about.

        Ordinary heckling, such as has been traditional at political rallies for centuries, is protected speech, and states have no right to make laws against it. Therefore you cannot have a heckler arrested; your only recourse is to politely ask him to leave, and you can only stop being polite if he refuses.

        Ragspierre in reply to janitor. | March 17, 2016 at 9:32 am

        Your BS is appallingly simplistic.

        **If you are seized by the police and removed from a venue, you are effectively “arrested”.**

        Nonsense. There is, in most states, a complex set of jurisprudence on the subject of when, precisely, an arrest takes place.

        **If you are told to leave by the person who is in lawful possession of premises and refuse to do so, you are trespassing.**

        Again, nonsense. Try telling a fireman to leave your burning property.

        **If you carry on inside or outside of the venue you are disturbing the peace.**

        More pure authoritarian nonsense. You’d clearly prefer “free speech zones” and “speech permits”.

        It’s easy to see why you’re a tax lawyer, and why you support Der Donald.

      MattMusson in reply to Milhouse. | March 17, 2016 at 9:14 am

      Having worked Security at public venues it is absolutely true that the Police will usually just escort people off the property. People are rarely charged unless they get violent with the police.

      The real story here is that the police at these venues are usually not ‘on duty’. They are working privately and being paid by the venue – even though this is coordinated through the police departments. They can still arrest someone. But, they are doing it on their own time.

    janitor in reply to lawprofsteve. | March 17, 2016 at 12:13 am

    Thank you.

    You are missing nothing.

    And I will go a bit further:

    Trump’s rallies are private, ticketed functions. While no fee is charged for the tickets, which are offered on first-come, first-served basis, they still require registration and are numbered. The purpose of the event is to hear Trump speak. Obtaining a ticket under false pretenses for the purpose of disrupting the event, especially in this organized way, g is not “free speech” — no matter how “not violent”. Blocking ingress and egress alone is probably a violation of others’ rights to attend.

    I am aware of families who drove many miles to see the Trump event, in some cases with children, and in two instances, because it was held on a Friday night, also made weekend reservations to stay overnight in Chicago. Some people took off work on Friday in order to attend. Undoubtedly there were many more like this. That the event had to be cancelled was an unspeakable violation of their rights.

    Finally, it is no defense that Trump himself, fearing problems, cancelled the event himself after being advised about the situation. It was a wise thing to do, in order to avoid injuries to innocent attendees. These are huge crowds, similar to a large sporting event. Things happen in crowds this size. People get sick. People get emotional. In a crowd of tens of thousands, which is the size of the entire population of some small cities, to have “one” person who misbehaves is not “because of Trump” — and it’s ridiculous that the media has focused on minutiae such as one overwrought old man who threw a punch in frustration at a “protester” (more accurately called an intentional “disrupter”.)

    This is not Trump standing on a soapbox in town or other public arena and thus having to put up with some amount of protesting or heckling.

    These event, while comprising a political speech are more akin to a concert. How much “heckling” do you think would be permitted if, instead of giving a speech, Trump instead had paid for the performance of an opera in a private rented venue that was ticketed in the same way.

    There is no defense to the protester’s behavior, and that includes not only the active disruption of the event inside the venue, but also behavior that obstructs other people from being able to safely get in and out.

      Milhouse in reply to janitor. | March 17, 2016 at 9:25 am

      Heckling at political speeches is a long-standing tradition, and is absolutely protected by the first amendment. No state may make it a crime. That doesn’t mean the rally has to let you stay. Once you are told to leave, by someone whom you know to be in charge, you have to leave. But you have every right to heckle until then, and on your way out.

      The violence in Chicago was deplorable — exactly as the socialist violence in the Battle of Cable St. was deplorable. But Trump actively and repeatedly encourages violence. It’s not just one crazy old man punching someone who was doing nothing wrong. He was merely acting on Trump’s instructions, and Trump encourages his followers at every opportunity to do the same. He is running blackshirt rallies, and the Chicago violence was every bit as deserved as that dished out to Mosely’s blackshirts at Cable St. There were no “good guys” at Cable St, and there were none in Chicago.

        Valerie in reply to Milhouse. | March 17, 2016 at 11:28 am

        “But Trump actively and repeatedly encourages violence.” See two of his speeches, the opening parts starting at about 3 minutes to about 15minutes.
        I thought it was in Kansas City, but have been told it was Wichita.

        Here’s the Kansas City speech.

        I already posted this. He is making a big show of doing exactly like you say should be done at a private venue, including squarely discouraging his supporters from violent behavior. The crowd knows the routine, and they love it. This is bound to be a core part of his appeal. There is a large and growing number of people in this country that knows Ted Cruz, the media, and both political parties are FOS about Trump encouraging violence. This one point is enough to destroy the credibility of anybody that chooses to criticize him, regardless of the merits, and especially if the issue requires digging.

        This observation does not make me a Trump supporter: I just like truth.

        The real problem with the Repub party is that it is shooting itself in the foot. Trump is not likely to have coattails for the same reason Obama did not: these voters include a lot of Democrats, and they aren’t voting for Republican policies.

Those protestors are interrupting the right of Americans to peacefully assemble. They should be arrested.

Of course, getting arrested is the point of civil disobedience, but tht doesn’t mean it shouldn’t be done.

    Milhouse in reply to rotten. | March 17, 2016 at 12:01 am

    Those protestors are interrupting the right of Americans to peacefully assemble.

    1. They have the same right.
    2. They are not state actors, so they are not bound by the first amendment and are under no obligation to respect anyone’s right to assemble.

    They should be arrested.

    For what? What crime have they committed, and is the state authorized to create such a crime? That is what this article is about.

      murkyv in reply to Milhouse. | March 17, 2016 at 12:59 am

      Campaigns can opt to exclude protesters from campaign rallies. The First Amendment doesn’t stop them — in fact, the First Amendment protects the campaign’s right to control its message. Generally, a campaign rents space for its rallies, which gives it the right to exclude people for “trespass” as well as get law enforcement’s help to do so.

      A campaign can declare someone to be a trespasser if their presence interferes with the campaign’s chosen message. At a rally, for instance, enthusiastic sign-waving can be a requirement of attendance. A campaign has the right to control its own political theater, within the limits of nondiscrimination law. Deeming someone trying to attend a rally to be a protester because of her race or religion would, of course, violate the law.

        Milhouse in reply to murkyv. | March 17, 2016 at 9:14 am

        Indeed a campaign may remove opponents from its rallies. That’s not what this article is about. This article is about what criminal laws a state may make against hecklers. The first amendment strictly limits that. A state may not make ordinary heckling a crime, so an ordinary heckler may not be arrested. The only “penalty” available is being told to leave, which he must, of course, do. But when you go beyond ordinary heckling, and beyond the 1A’s protection, states may make laws about it, and you can get arrested for breaking them.

“There is no great answer. ”

Yes, there is, and Donald Trump is executing it, now.

Where there was a near-riot in Chicago, he cancelled an event, and along with Bernie Sanders got a lot of criticism. Donald got a lot of primary votes.

With a small number of protesters, Trump incorporates them into his speech. The crowd knows to alert him and the security guards, who remove them, to the delight of the crowd. The video of the speech circulates, and Donald gets more primary votes.

He apparently is the only politician in the the race that knows how to deal with with disruptors, and may well have handed him the United States Presidency.

That, to me, constitutes a “great answer.”

I still wish I’d gotten a chance to vote for Gov. Walker or Ben Carson, but I have to give the devil his due.

recall what Hillary’s body guards did to protesters at her book signings.

Violence by protesters is unacceptable and must be dealt with appropriately within the LOSD (see Andrew for details) or the gendarmes.

– –

Illegal nonviolent protests must be handled by police, although private security is certainly entitled to demand such people leave the venue and escort them out – but their ability to use physical force is strictly limited and depends on state laws.

– –

Physically attacking nonviolent protesters or those in custody and under restraint is just fascist thuggery. Cheering on such behavior says a lot about the candidate and his supporters – and what it says is not good.

Off topic, or maybe not, you all decide. I was intrigued by Jonathan Levin’s characterization of the speech of the Christian “Bible Believers” at the Dearborn Arab Festival as “explicitly hateful and anti-Islam propaganda.”

I wondered what this “explicitly hateful” language could consist of because although not devout myself I know of evangelists who go to the Arab Festival and none of them preach hate because that’s a piss poor way to attract converts. But the Muslim Arabs (the overwhelming majority of Arabs in this country are Christian) characterize it as hate speech to justify the use of the heckler’s veto.

So I found the 6th Circuit Court decision and sure enough the language the Bible Believers used in 2012 was, shall we say, undiplomatic. See page 9.

Still, I found myself disturbed by the general characterizations of the group’s speech, because it could apply to any group of evangelists, not just the Bible Believers undiplomatic and certainly ineffective speech if attracting converts is the goal. Such as:

“The quintessential attribute of the Bible Believers’ message
was intolerance, principally proclaiming that Mohammed was a false prophet who lied to them and that Muslims would be damned to hell if they failed to repent by rejecting Islam”

All the groups would have been at one point or another, using whatever words they chose, delivering this same message. What is intolerant about it, or hateful?

Recall the Salman Rushdie book, The Satanic Verses. He is under a perpetual death sentence for writing it (a leading ayatollah confirmed on the 25th anniversary of the original fatwa that it is “as fresh as ever) for writing it.

We know the story of the Satanic verses from multiple early Muslim sources. It concerns verses 53:19-20 of the Quran.

“So have you considered al-Lat and al-‘Uzza? And Manat, the third – the other one?”

When Allah was still the chief pagan deity of the Arabs, the above three were worshipped as his daughters.

Muhammad was attempting to convert the almost exclusively pagan Meccans to his new religion he really wanted a verse that would attract more than the handful of converts he had attracted to that point. He got his wish. The beginning of the verse that was “revealed” to him is the above. But it went on to call the three goddess daughters the “high flying cranes” (cranes being a large stork-like bird) whose intercession was to be desired. In other words, if you prayed to the three daughters of Allah, they would carry your prayers to Allah.

The pagan were much more enthusiastic about Muhammad and his new religion because he now seemed to condone their beliefs. But apparently he had a later “revelation” and had to take the latter part back because it had come from Satan, not Allah.

Hence the title of Rushdie’s book.

The early Islamic sources were very blunt and matter of fact about the story. Later chroniclers started to water it down further and further as they realized just what an embarrassment it was. Now Muslim authorities like the Iranian Mullahs actively try to suppress the story; hence the fatwa and the death sentence on Rushdie’s head. And there’s a simple reason. Muslims claim to revere all the Biblical prophets (claim to is an important caveat as the Biblical names are usually assigned to unrecognizable characters). That would include Moses. And according to Mosaic law Muhammad is indeed a false prophet.

Deuteronomy 15:20

” But any prophet who falsely claims to speak in my name or who speaks in the name of another god must die.”

Muhammad did both. He spoke in the name of three goddesses on behalf of Satan. But he claimed to speak in the name of God. In Moses’ time this would have gotten him stoned to death as a false prophet.

Isn’t this something Muslims should know? Was Salman Rushdie, and Iranian and perhaps back before his book a Muslim himself, “intolerant” for basing his novel on what is per the Muslim sources themselves a historical fact of Islam? So badly do Islamic authorities want to keep this from their adherents they will kill to do so.

Did Muhammad lie to the Muslims? There’s a pretty good case to be made from a variety of sources. Here’s one, but first you have to understand what Islam teaches about the Quran. It is the perfect, unaltered, eternal word of Allah. It has existed for all eternity along with Allah, and is inscribed on a tablet in heaven. The angel Gabriel recited it to Muhammad, who in turn recited it to his scribes, and therefore the earthly Quran in book form is a perfect copy of the heavenly Quran inscribed on the tablet. So, with that in mind I give you verse 33:53:

“O you who have believed, do not enter the houses of the Prophet except when you are permitted for a meal, without awaiting its readiness. But when you are invited, then enter; and when you have eaten, disperse without seeking to remain for conversation. Indeed, that [behavior] was troubling the Prophet, and he is shy of [dismissing] you. But Allah is not shy of the truth. And when you ask [his wives] for something, ask them from behind a partition. That is purer for your hearts and their hearts. And it is not [conceivable or lawful] for you to harm the Messenger of Allah or to marry his wives after him, ever. Indeed, that would be in the sight of Allah an enormity.”

The early Muslims apparently were eager to spend as much time as possible with their prophet. So when Muhammad invited people over for dinner they’d often arrive early before the meal was ready to talk. Then after dinner they would hang around to talk some more. This bothered Muhammad but he didn’t say anything. Then one day he announced he had a revelation, in which Allah revealed that while Muhammad was too shy to mention this Allah is not shy. It’s just rude, Allah said on behalf of his shy prophet, to arrive too early for dinner. Don’t come over before dinner is ready. And then after the dishes are cleared, leave.

Now, does anyone really think this is the kind of thing Allah would spend eternity brooding about and figure is so important it had to go into his eternal book? The Quran is riddled with “revelations” that serve no other purpose than to get Muhammad something he wants or to get people off his back.

This one is just so petty and self-serving it’s comical.

If something is “anti-Islam,” i.e. it doesn’t praise Islam a a “religion of peace” (by a longshot, it is no religion of peace) is it automatically hateful, intolerant, and propaganda?

I find it disturbing that people will hang such pejorative labels on speech without knowing the first thing about the subject. Islam claims to be an Abrahamic religion. Yet by Jewish, Christian, and indeed Islamic criteria there is a strong case that Muhammad was a false prophet (again that’s why they Iranians want to kill Rushdie; they can’t really refute him). How is pointing that out “intolerant, hateful,” etc?

    Arminius in reply to Arminius. | March 17, 2016 at 8:08 pm

    I didn’t adequately explain where I was going with this.

    Where does a court get off giving editorial comment about the tastefulness of someone’s speech when it can’t even offer an informed opinion one whether or not that speech is objectively true?

    I could offer evidence that by the standards contained in Islam’s own holy texts Muhammad was a false prophet. But that is quite beside the point by now. Because it appears that truth or at least a position that can be defended is hardly a consideration.

    Doesn’t a court have almost as much a “chilling” effect on free speech when it essentially says “we are unfortunately forced to defend the speech of this scumbag” as the unconstitutional policies it wants the world to know it is only reluctantly setting aside?

Private property… that’s all that needs to be said. If you don’t understand that then you don’t understand the constitution.

    Milhouse in reply to Vince. | March 17, 2016 at 9:31 am

    The first amendment applies on private property every bit as much as on public. Neither Congrefs nor any state or municipality may make any law abridging the freedom of speech, whether on private or public property. The only recourse a property owner has against speech he doesn’t like is to ask the speaker to leave, and to remove him if he refuses.

The so called “protesters” went there for one reason and that was to STOP Trump from speaking! From exercising his 1st amendment right!

They used thug tactics by tearing up Trump campaign signs and creating an unsafe environment for everyone attending.

And then bragged about it after the fact!

Can the organization coordinating the protests be used to reimburse the people whose speech they shut down, for expenses and time? Maybe a class action for the attendees as well.