In a free market, we each may propagate our ideas. You, you svelte raconteur, you garner attention seemingly without even trying. I, bald, loathed by former colleagues and friends, in many ways a broken man, I hold my opinion as dear, but I cannot gain a foothold in the public conversation to successfully propagate my opinion. In an ideal world, we would just continue conversing, doing what we could to succeed in spreading the word.
As events at recent Trump 2016 rallies proves, we do not live in an ideal world. Black Lives Matter activists, Bernie Sanders supporters, and other malcontents, have sought to ARREST the voices with which they disagree, to subjugate the holders of opinions divergent from their own. Today, in Arizona, a highway is blocked by cars, and in some cases, by human bodies cable locked to those cars, to prevent individuals from making the trip to a Trump 2016 rally.
Brave new world indeed!
When the tantrums takes these shapes, one harbors fading hope only that the watching populace will realize the Stalinist-Maoist mentality of these folks and reject their decision that the conversation they dislike is the conversation they must silence.
What these malefactors are actually attempting has a name in the law, other than the names for the various crimes they are committing to accomplish their goal. That name is the “heckler’s veto.”
The heckler’s veto.
You’ve probably seen the scene in a movie or television show before. A comic is performing a routine. Someone in the audience catcalls, criticizes. They don’t like the jokes, they interrupt, they insult. A good comic turns the moment into comedic gold. Maybe the heckler has a bulbous nose, or three empty martini glasses in front of her, or is wearing a striped shirt with their plaid sport coat. The merciless riposte serves to liven a weak pattering routine, win the audience’s amused applause, etc etc etc.
The heckler’s veto in real life is, or can be, quite different.
For example, in 1990, the Ku Klux Klan announced its intention to march to the United States Capitol. Now, Washington, DC, has a long history of playing host to protests and demonstrations. As a federal constitutional lawyer, I have litigated the First Amendment right to the use of the streets, sidewalks and parks in the Nation’s Capital for a quarter century. But when the Klan announced its intention to return to the Capitol, even the Capital’s well-trained policing agencies knew that trouble would follow.
In fact, the Klan had to go to court to insure its right to conduct the march at all. The City did not want to play host to the debacle … not of the Klan marching but to the repeat of riots that had occurred when the Klan last marched in DC in the early 1980s. Then, and in 1990, the City knew that the Klan would not riot, pillage, break windows, or loot stores. That criminality was the special expertise of anti-Klan protesters, who used the excuse of the insult of the Klan’s presence to justify their wreck and ruin of local businesses. So the City did not want the Klan to march, undoubtedly because the Klan’s philosophy and history is odious, but also because the opponents of the Klan had inflicted serious damage to the city before and were threatening to do so again.
So, the City of Washington, DC, which preferred not to be laid waste yet again as had been done to it by the British in 1812 and by the race riots following the assassination of Martin Luther King, Jr., took the position that it could deny a permit to the Klan in order to preserve peace and good order.
Had the matter stood so, the heckler’s veto would have been given full force and effect. The anti-Klan crowd would have succeeded in terrorizing a city’s policing officials and government into submission, into tools to silence the opinion with which they disagreed. The matter came to a federal court, however, and the City was ordered to issue the required permit for the march.
You can read about the actual incident of the day in this Los Angeles Times report. http://articles.latimes.com/1990-09-03/news/mn-1527_1_police-officers
The thing of it is, we might all agree that the Klan is odious, hateful, and misbegotten. Even Democrats, who founded and populate the Klan, have come to the view. But there is a difference between a society that suppresses the expression of ideas through terrorist threats of harm, and one that counters odious opinions with truth.
The Supreme Court’s modern doctrinal interpretation of the First Amendment has always obliged government officers and agencies not to give effect to a heckler’s veto. Put another way, the Supreme Court, in a series of cases, has refused to countenance decisions by cities to refuse permits, or prosecute speakers, out of fear for, or in response to, disapprobation of the speaker’s opinions, even violent disapprobation.
The Heckler’s Veto cases extend back to the early part of the 20th Century.
In response to the spread of socialism in Europe, and the supposed threat of its spread in America, many States adopted statutes prohibiting “criminal syndicalism.” Oregon had adopted a “criminal syndicalism” statute that formed the basis of a prosecution in a case decided by the Supreme Court, DeJonge v. Oregon. The Oregon statute defined “criminal syndicalism” as, “the doctrine which advocates crime, physical violence, sabotage or any unlawful acts or methods as a means of accomplishing or effecting industrial or political change or revolution.” In DeJonge, however, the State of Oregon prosecuted DeJonge for the conduct of a public meeting that discussed ideas for social change. The State never even alleged that DeJonge called for crime, physical violence, sabotage, or other unlawful acts.
The Supreme Court overturned DeJonge’s conviction. While the Supreme Court left intact the important State interests in protecting the People of Oregon from “criminal syndicalism” in the form of such crime, violence, sabotage, or revolution, it stripped Oregon of the power to make ordinary instances of the right to peaceable assembly and free speech the organic components of such crimes. The Court put it this way:
In Nationalist Movement v. Forsyth County, the Supreme Court rejected Forsyth County, Georgia’s use of a sliding scale for calculating the cost of demonstration permit fees; the sliding scale allowed on governmental officials’ perceptions about how popular/acceptable or unpopular/objectionable to determine how much such permits might cost to obtain. In cases, for example, where groups like the Klan would march in DC, or like the Nazis would march in Skokie, or civil rights demonstrators would march in Forsyth County, perceptions of unpopularity could result in the imposition of prohibitively expensive permit fees. The Court held, “[s]peech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob.”