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. 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 20^th 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.

September 11, The Day the First Amendment Died

Some folks will think of this date as the day American government officials conspired to draw America into international conflicts by killing nearly 3,000 of their own.I've watched several of the "inside job" conspiracy videos and have not found anything credible. I am open to being convinced.

Yet, as a federal constitutional law and civil rights attorney, I understand, and hope you will, how badly damaged our Nation was -- above and beyond the death toll -- in the exercise of our civil rights and liberties.

Not only did the Patriot Act authorize the continuing and increasing surveillance of Americans (lest my Republican friends think I'm blaming all this activity on Bush, lest my Democrat friends think that they are off the hook, you should read up on the Clinton era Carnivore and Echelon programs, which you can do starting at pages such as this one), the claimed need to protect government officials led to the adoption of rules by the US Marshal's Service, the Secret Service, the Supreme Court police, and other federal policing agencies, that resulted in removing peaceful demonstrators from the line of sight of government officials attending public events.

For example, Reverend Patrick Mahoney​, my long time client, and several others, were arrested when they engaged in prayer and the display of signs on the public sidewalk across from the entrance to the Cathedral of St. Matthew, in Washington, DC, on the morning of the annual Red Mass. You can read the decidedly constitution-free decision of Judge Royce Lamberth in which Mahoney's pleas for respect for the freedom of speech fall on security-deafened ears here.

Mahoney began his vigils on Red Mass mornings to communicate his concern over the banning of Ten Commandments. The immediate concern he addressed was the incident in which Justice Roy Moore of the Alabama Supreme Court placed such a monument in the rotunda of that State's Supreme Court. In the post 9/11 era, the Supreme Court police and the Secret Service created giant, city-block sized "speech free" zones.

Within those zones, individuals could walk, talk, ride bikes, walk dogs, drink coffee, wait for buses, make phone calls, wave to friends, hail cabs, and all the other typical and expected human behaviors of daily life in an urban setting. BUT WHAT THEY COULD NOT DO is seek to communicate a message on what they considered to be an important public issue to government officials passing through the "speech free zone."

To communicate, Reverend Mahoney and others had to move out of the exclusion zone, away from lines of sight of government officials, and stay within a holding "pen" like they were stockyard bound livestock. While the bulk of my post 9/11 experience with government restrictions on free speech involved cases of religious speech or pro-life speech, the ACLU also cataloged the deleterious impact of the government's unflinching assertion of security interests on core political speech activities too.

So, yes, I mourn the lives lost.

But more so, I mourn that the meaning of those lives lost is disregard for our essential liberties by the courts, the police, and government officials.

Bigotry or Liberty?

So I stopped at a kosher deli and ordered a ham sandwich. They refused me service!

Then I went by the Halal meat market and ordered a ham sandwich. They refused me service!

I tried to hire Jackson Pollock to paint a family portrait. He refused me service!

I stopped by the Washington Post and asked to buy advertising space to run a full page editorial criticizing the Washington Post's liberal biases. They refused me service!

I went by the Catholic Church and tried to get the priest to perform a bar mitzvah. He refused me service!

I visited the Baptist Church down the street and asked for some transubstantiated communion. He refused me service!

I slipped on a yarmulke and tried to get into a Neo Nazi meeting. They refused me service!

Suddenly, it struck me! This Nation is filled with bigots! The American University Women's Association, the National Association for the Advancement of COLORED People, La Raza, the Ku Klux Klan, Girl Scouts USA, etc etc etc.

And it's not just private clubs!

Businesses refuse to sell me the products I like.

Jewish delis and halal meat markets inconvenience me by not carrying ham. Artists inconvenience me by claiming a right to control their creativity. Editors oppress me by refusing to adopt my messages in their papers.

Or. perhaps, this Nation is filled with people who have the natural right to LIBERTY. A right not granted by the State (sorry Chris Cuomo) but by God. And encompassed within that right is a freedom to associate with others and to associate with ideas.

How meaningless is the right to associate and to associate yourself with ideas if the government can come along and compel you to associate with those that you do not freely choose to join with, or to express ideas that you have not freely adopted for yourself.

Do I think that Denny's or Kinko's should deny service to whites or blacks, straights or gays, Catholics or Protestants? No.

If I go into Denny's and demand that they serve me a product they don't carry, however, that's not discrimination. And, when it comes to printing, if I go into Kinko's and demand that they make 100 copies of a copyrighted work belonging to another, and they decline, that's not discrimination. Denny's isn't in the business of serving Big Macs and Kinko's is not in the business of copyright infringement.

Now, oftentimes, there is no particular exercise of natural rights to liberty at stake when a person seeks to have the benefit of another's entry into a business or offering of a service. And, for most businesses, a foolish insistence on the right to refuse service is a foolish commitment to less foot traffic, lower volumes and, subsequently, reduced income, 

So, some folks will prefer not to do business with me, or you, or another. Given our distaste -- ensconced in law -- for monopoly, the unwillingness of one to do business with another only means that the person denied service will get their product or service from someone else, someone that has no such strong sense -- whether founded in religion, morality, politics, ideology, or just stupidity -- that it's better to lose a sale than to compromise a view, an opinion, a belief or a conviction.

There is more than hubris in the current brouhaha over the Indiana Religious Freedom Restoration Act. There is a terrible shortsighted ignorance of how the ruination of the freedoms belonging to others ruins our own freedoms too.

Sure, we'd love the day when Klansmen invite African Americans into their homes for kindly discussions over dinner. We'd all love the day when vitriolic demagogues in the Democratic Party and rascally radicals in the Republican Party worked together for the common good. But who is fooling whom when it is the jackboot on the neck that obtains the cooperation of all?

There's interesting news from my hometown, Albuquerque, New Mexico, where it appears the County Commissioners are contemplating a county ordinance limiting picketing in residential areas.

So Bernalillo County, where Albuquerque is located, will limit residential picketing.

The thing is, the proposed ordinance prohibits pickets targeting a particular residence (what might "targeting" mean) "without the express prior consent of the occupant(s)." Hmmmmmm.  "Express consent" is an interesting catch phrase.

Suppose a pro-Abortion group wants to show support for local abortion doctor?  Permission granted, based on the beleaguered occupants desire for a sign of affection from the community.

Suppose a pro-life group wants to protest against local abortion doctor.  Permission denied, equally obviously.  After, a man's home is his castle.

Nor do the obvious ham-handed likely possibilities draw the limits of the variations that are possible:

Suppose the husband of abortion physician has disliked his wife's practice for sometime (as an African American he has come to understand that Jesse Jackson was right when he referred to abortion as the genocide of the black race).  So he tell the pro-life group, "sure, you can picket but your signs have to educate and inform on the racial implications of abortion."  The abortionist wife, on the other hand, says, "no you can't."

What if children say no, but parents say yes.

And that pesky tenant in basement apartment, suppose she says yes even though the landlord upstairs says no.

And still there's that "targeting" language.

Is it targeting to identify abortion as the modern American equivalent of the Holocaust, even where no effort or speech connects that rhetorical consideration with the occupants of the residence?   I mean, suppose the sign just says, "Abortion ... The American Holocaust."  No sign saying, "Dr. Smith at 1234 Sesame Street Is Akin to Josef Mengele."

Must occupants be identified in a way that sets them apart from neighbors, than others living in the community?

What if the picketers go two doors down with signs indicating that the house two doors up is occupied by an abortionist, her husband and kids?

Of course, the First Amendment has never stopped pro-abortion politicians from pandering for votes.  And, sadly, it has never stopped pro-abortion justices of the Supreme Court from pandering to their constituencies.  Yet, as the article indicates, Commissioner Johnson at least offers the hope that sanity will prevail (along with Freedom of Speech).