Saturday, March 19, 2016

Heckling Jekyll: Silencing Disliked Speech Does Not Enhance Liberty

                Suppose you have an opinion, one about which you care deeply, one that you believe to be the product of thorough study, careful consideration, one that you believe is supported by a rash of objective data. Yet, at the same time, suppose that I, too, have an opinion, one contrary to yours, yet in respect to my devotion to my opinion, one I am satisfied is the product of thorough study, careful consideration, and is supported by a rash of objective data.

                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.

                That’s Hollywood.

                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.

                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:

The First Amendment of the Federal Constitution expressly guarantees that right against abridgment by Congress. But explicit mention there does not argue exclusion elsewhere. For the right is one that cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all civil and political institutions -- principles which the Fourteenth Amendment embodies in the general terms of its due process clause. [] These rights may be abused by using speech or press or assembly in order to incite to violence and crime. The people, through their legislatures may protect themselves against that abuse. But the legislative intervention, can find constitutional justification only by dealing with the abuse. The rights themselves must not be curtailed. The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government. It follows from these considerations that, consistently with the Federal Constitution, peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for peaceable political action cannot be proscribed. Those who assist in the conduct of such meetings cannot be branded as criminals on that score. The question, if the rights of free speech and peaceable assembly are to be preserved, is not as to the auspices under which the meeting is held, but as to its purpose; not as to the relations of the speakers, but whether their utterances transcend the bounds of the freedom of speech which the Constitution protects. If the persons assembling have committed crimes elsewhere, if they have formed or are engaged in a conspiracy against the public peace and order, they may be prosecuted for their conspiracy or other violation of valid laws. But it is a different matter when the State, instead of prosecuting them for such offenses, seizes upon mere participation in a peaceable assembly and a lawful public discussion as the basis for a criminal charge.
Now, DeJonge is not, strictly speaking, a Heckler’s Veto case. In DeJonge, the "heckler" was the State of Oregon, seeking not only to suppress the criminal syndicalism legitimately prohibited by law, but also speech with which it disagreed. In the Heckler’s Veto cases, some private citizens take exception to the ideas and expression of other private citizens. The exception they take, however, is exhibited in various kinds of intimidating and even criminal tactics: disruption of public meetings, obstructing public ways, and, of course, as with the 1990s Klan march in Washington, DC, outright threats and crimes.

In Feiner v. New York, the Supreme Court upheld a incitement to riot conviction. In the case, Feiner was addressing a crowd, calling on blacks to take up arms, and heaping insults on local government officials. The crowd became boisterous and the police perceived the danger of an ensuing riot. Important to the case as decided by the Supreme Court was Feiner’s advocacy of violence in a context where violence appeared about to result.

Other cases have fleshed out the Heckler’s Veto, and have clarified that governments cannot base their decisions about the right to express unpopular or unwelcome views based on auditors’ objections to the message. For example, in Glasson v. City of Louisville, a policeman took a sign from a protester and tore it up. The standing order for an event in which then-President Nixon was visiting the City directed police to “destroy any sign or poster that was ‘detrimental’ or ‘injurious’ to the President....”

The idea that one’s right to speak one’s mind would be suppressed because it was “detrimental” to or “injurious” to a governmental official ought to have raised the hackles on those familiar with colonial agitation against King George III and Parliament here in the British colonies. Sure, there was that brief and torrid affair the Federalist Congress had with something called the Alien and Sedition Acts, but in the main, doctrinally, we have seemed to have understood that the key purpose of the First Amendment was, not so much to protect the right to dance about naked covered with chocolate and bean sprouts, to protect core speech directed to the governance of this Nation and its policies and its officers.

Thus, in Glasson, the Supreme Court warned:

A police officer has the duty not to ratify and effectuate a heckler’s veto nor may he join a moiling mob intent on suppressing ideas. Instead, he must take reasonable action to protect from violence persons exercising their constitutional rights.
            The Glasson Court found that the police “exhibit[ed] shocking disregard” of the protester’s “right to have her person and property protected by the state from violence at the hands of persons in disagreement with her ideas.” That principle – police should address threats of crime and violence by targeting those that make such threats or carry them into action, rather than by silencing speech – is the essence of the Heckler’s Veto doctrine.

                And the Heckler’s Veto doctrine carries out beyond the action on the streets.

                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.”

At the far end of the spectrum, the Supreme Court has left space for exigent circumstances threatening such violence, and so beyond the ability of government to temporize and ameliorate that rule of not giving effect to a Heckler’s Veto can give place to a rule of insuring public safety:  “[T]he law does not expect or require them to defend the right of a speaker to address a hostile audience, however large and intemperate, when to do so would unreasonably subject them to violent retaliation and physical injury.”

Events continue to unfold during this 2016 campaign season.

In Arizona today, a highway has been blocked. Elsewhere, opponents of Donald Trump’s campaign infiltrate his rallies and seek to disrupt them vocally. At the present time, the level of threat of harm and public disruption seems eminently resolvable by normal policing tactics such as removing those that disrupt public meetings, and arresting those that block roadways. As we press forward through this silly season, we would all do well to remember that ideas have a way of sorting themselves out over time. Killing ideas by killing the liberty to express them has proven terribly ineffective. In fact, most of the course of modern history proves that a sure way to propagate an idea is to involve the government in suppressing it. Rather than trying to silence Trump or Sanders, the better path is more ideas, more conversation, more truth.