Election 2016

Donald Trump and the Heckler's Veto

How the arrest of an anti-communist Catholic priest in the 1940s explains Donald Trump's right to free speech.

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On Feb. 7, 1946, Arthur Terminiello, a Roman Catholic priest who was a fierce opponent of communism and believed that President Harry Truman was too comfortable with it, gave an incendiary speech in a Chicago hall that his sponsors had rented.

The hall held about 800 people, but nearly 2,400 showed up. Father Terminiello's opponents outnumbered his supporters by a two-to-one ratio. The atmosphere in the hall was electric, with almost everyone present taking sides for or against this priest, all under the watchful eyes of Chicago police.

The speech delighted the priest's supporters and enraged his detractors. When it became apparent that violence might break out, the Chicago police approached Terminiello while he was speaking and asked him to stop and leave the building.

He refused to leave and resumed his speech. The police prediction soon came to pass. The fiery priest ignited the hatred of his adversaries, many of whom seemed to have come to that venue to silence him. The shouters hurled chairs, rushed the stage and attempted to attack him.

The police safely escorted Terminiello out of the hall and then, in the presence of the many rioters who by now had spilled out onto a public street, arrested him for inciting a riot. The charge was defined in Illinois in the mid-1940s so as to criminalize any behavior that intentionally arouses the public to anger or brings about public unrest.

The police did not arrest any of the rioters who smashed windows, destroyed the stage and assaulted the priest. They saw him arrested for his words that they hated.

Terminiello was tried and convicted. After his conviction had been upheld by the Illinois Supreme Court, he appealed to the U.S. Supreme Court, which reversed his conviction. In so doing, the high court saved the First Amendment from authoritarian impulses that sought to narrow its scope, and ushered in the modern judicial understanding that has informed the present-day parameters of the freedom of speech.

The ruling generally barred the punishment of speakers who are expressing political opinions and held that the First Amendment needs breathing room; and breathing room contemplates that some people will hate what they hear and articulate that hatred.

The court warned the police against permitting audiences to silence speakers, what lawyers and judges call "the heckler's veto." Thus, the police today cannot throw up their hands and permit a speaker to be silenced as they did to Father Terminiello. They have an affirmative obligation to take all reasonable steps to protect the speaker's right to speak, the audience's right to hear and the protesters' right to protest.

Fast-forward to last Saturday,

Donald Trump and the Heckler's Veto
Flickr/Gage Skidmore

also in Chicago, when Donald Trump canceled a rally and said he did so because he feared that protesters would disrupt it and some folks might be injured. Was this an example of the heckler's veto?

The legal issues here are complex and subtle, involving property rights and free speech. As a lessee of a government-owned building for his rally venue, Trump could not prevent any person from entering or remaining because of the person's political views.

However, he could have asked the police to employ reasonable force to remove those whose behavior made it impossible for him to use the venue for the principal purpose for which he leased it. Since the First Amendment requires breathing room, the police must be extremely tolerant of protesters and may remove only those whose behavior physically prevents the use for which the venue was leased.

Stated differently, protest of political speech is itself protected speech, but protest cannot be so forceful or dominant that it vetoes the speaker.

What about the allegations that Trump himself is responsible for the violence at some of his rallies? If Trump publicly demands violence and there is no time or ability for any speech to neutralize his demands and the demanded violence takes place, his speech is unprotected and he can be prosecuted for incitement to riot. This is the modern rule that holds that all innocuous speech is absolutely protected, and all speech is innocuous when there is time for more speech to rebut or neutralize it.

When there is no time between the demand for violence and the responsive reactive violence, the speaker is liable for the violence he demanded. But if there is time for more speech to counsel against the violence, even if no neutralizing speech is actually uttered, the speaker cannot be prosecuted. And before any prosecution for speech may commence, the court must eliminate every possible lawful interpretation of the speaker's words.

All these rules further the whole purpose of the First Amendment. It is to recognize, codify and protect the natural human right to form thought and to express the thoughts, and to encourage open, wide, robust, challenging speech about the government, uttered without a permission slip, free from government interference and without personal hesitation.

In the case of the canceled Trump rally last weekend, many fingers have been pointed. The Chicago police claim they never advised Trump to cancel. The Secret Service claims the same. Trump says he was the victim of ideologically driven fanatics who wanted to silence him, just as their predecessors did to Father Terminiello. If there is ever litigation over this, a jury will decide the facts.

But the law is clear. The First Amendment tolerates the maximum possible public discourse, disagreement and confrontations; and it commands the government to protect the values it embodies.

COPYRIGHT 2016 ANDREW P. NAPOLITANO | DISTRIBUTED BY CREATORS.COM

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65 responses to “Donald Trump and the Heckler's Veto

  1. “Ideas should be neutral. But man animates them with his passions and folly. Impure and turned into beliefs, they take on the appearance of reality. The passage from logic is consummated. Thus are born ideologies, doctrines, and bloody farce.”

  2. Just to be clear, “Father Terminiello was under suspension from his bishop for his frequent inflammatory speeches against Jews and African Americans.”

    1. “The more one is obsessed with God, the less one is innocent. Nobody bothered about him in paradise. The fall brought about this divine torture. It’s not possible to be conscious of divinity without guilt. Thus God is rarely to be found in an innocent soul.”

      1. Very good, now produce an innocent soul, if you please.

        1. I keep trying but the souls I capture all have some degree of guilt. I’m strating to think there’s no such thing as innocence.

          1. Perhaps an late term abortion could provide you with an innocent soul? Might be worth a try.

            1. Why would it have to be “late term”?

              1. To spark a long comment shouting match

                1. And to protect the life of the mother.

              2. Its a well known scientific fact that the soul doesn’t enter the body until the 12th week.

                1. Actually, according to old school Catholic doctrine, the soul does not enter the body until after the first breath and when the ascendant sign at conception is ascendant again after birth. The fetus was held to be just earth and water. The first breath introduced air and the ascendant sign introduced fire, thus completing the soul.

                  1. The ascendant sign? Is this when the moon is in the Seventh House?

              3. Why would it have to be “late term”?

                Good question. I was thinking late-term to improve your odds.

                Depending on your per-unit cost for soul capture, you might start early, and see at what point you actually capture a soul.

                A useful data point in the abortion wars, if you can afford it.

    2. Terminiello’s bishop said this in 1945:

      “Reverend Arthur W. Terminiello, having refused to obey the order of his bishop to cease sending out literature which we feel is detrimental to the church and the unity of our country…is no longer considered a priest in good standing in the diocese of Mobile, nor has he the right to use his facilities as a priest in the diocese.”

      1. Interesting, but how is it relevant to this story? Whether he as officially a priest or not, he still has the right to speak.

        1. Because the article, including the subhead, refer to him as a Catholic priest without the context of him being disciplined by his bishop.

      2. you overlook the fact that Terminello’s SUPPORTERS -rented- the hall for him to speak,the church contributed no resources,the speech was NOT on church property or under church auspices.

        so your objections are meaningless.

  3. Also, fried chicken.

    Seriously. I’m eating the best fried chicken I’ve ever had right now.
    http://www.laweekly.com/restau…..na-6445358

    1. Can the Japanese be guilty of cultural appropriation?

      1. Evidently not. Because they’ve been doing it since the 1860s with no protests that I know of.

        1. They got some static when they tried to appropriate the imperial possessions of the Western powers.

          1. The issue was the territory, not the culture.

            No one took affront their being more Western, just that they wanted to take our stuff.

        2. So Tom Cruise was…reverse appropriating? Hmm
          *thinking emoji*

          1. No, reciprical appropriation.

      2. Aren’t they honorary white people? So, yes.

      3. What if they call it Chicken Tempura?

        1. Meh, karage sounds cooler, more rising sun-ish.

        2. Atomic Chicken

          1. Nuclear Chicken.

            Because it sounds more ominous.

  4. Finally!!! You see, the Hecklers Veto and get things accomplished too!

  5. Well, damn, I thought this was going to be something about Father Charles Coughlin, which might speak more to the issue of Donald Trump.

  6. As a lessee of a government-owned building for his rally venue, Trump could not prevent any person from entering or remaining because of the person’s political views.

    So, if I rent one of these buildings I can’t decide who can come to my gig? Fuck that noise

    1. It’s the government’s buildings, why shouldn’t it put conditions on renting ’em out?

  7. Trump could not prevent any person from entering or remaining because of the person’s political views.

    Nobody has ever suggested that people who are sitting quietly but hold certain views should be booted or prohibited from attending.

    Its the ones who disrupt who need to be kicked out.

    I wonder, BTW, how many Hillary town halls are held in government-owned buildings. Because her campaign damn sure prevents people from attending because of their political views.

    1. Wonder how quiet it would be if he could sue for rental payment for the period he was interrupted

  8. Fast-forward to last Saturday, also in Chicago, when Donald Trump canceled a rally and said he did so because he feared that protesters would disrupt it and some folks might be injured. Was this an example of the heckler’s veto?

    I would say no, since, AFAIK, the police never asked him to shut it down.

    made it impossible for him to use the venue for the principal purpose for which he leased it

    If he paid cash money to lease that venue, then he could’ve had anyone he wanted thrown out for whatever reason, really. IMO, I’d say him cancelling the event further bolstered his support, especially among those who saw this as a heckler’s veto.

    1. I don’t think the heckler’s veto is limited to cops intervening to shut down the event.

      1. In First Amendment law, a heckler’s veto is the suppression of speech by the government, because of [the possibility of] a violent reaction by hecklers. It is the government that vetoes the speech, because of the reaction of the heckler.

        That was from a quick Googling. I was just speaking about it in a strictly legal sense. But, I ain’t now abogado, so what do I know.

  9. I was looking for a Judge Nap article but found this instead. What? He wrote this? Where are the question marks?

    Another good one by the Judge, even with the question marks.

  10. Actually the purpose of the FA isn’t to protect every opportunity to speak as much as it is to remove the excuse for violence due to the lack of it. The people who protest Trump are heroes, but they must do so NON VIOLENTLY. Furthermore if Trump didn’t incite violence, then he has no justification for ‘shutting down parts of the internet’ because he believes others are. What a hypocrite.

  11. Both the religious and lay looters endorse and demand the initiation of force. Why not let them have it–and have it out? Worst case scenario would be evolution in action.

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  13. hah! I told somebody 2 month’s ago that Donald Trump is what you get when the heckler’s Veto is given its own podium. That is to ask, Can the Hecklers veto be vetoed by Heckler’s? I want to it to be so, even though I know it would be wrong. Am I a bad person?

  14. Since Father Terminello was a staunch anti-Communist, it’s likely the riotous mob who finally shut him up were themselves communists, or at least radical leftists — much like the mobs on college campuses today, and the mob that shut Trump down in Chicago. The Left has always been the enemy of free speech.

    1. Suspended-Father Terminiello was an anti-Communist only in the sense that Adolf Hitler was.

      Nevertheless, the USSC was correct to extend him First Amendment protection. The amount of tolerance that a free society should extend to totalitarian subversives is inversely proportional to their effectiveness.

  15. Good article. In the left’s view, free speech only applies to them. How many of Hillary’s and Bernie’s speeches have been severely disrupted by the right? Answer: none. The only rally disruption I’ve heard about for either of them is when a bunch of Black Lives Matter thugs disrupted a Bernie rally and took his microphone away.

  16. https://cindybiondigobrecht.wordpress.com is political correctness the cause of Trump’s triumph?

  17. “What about the allegations that Trump himself is responsible for the violence at some of his rallies?”
    You can think he’s *morally* responsible without thinking he’s *legally* responsible. Not all of us expect the law to match up with our own preferences.

    That said, given Trump’s complicated relationship with the truth and how regularly he has his security hustle out protesters (including quiet ones) from his rallies, I’m not inclined to give him any benefit of the doubt. Whatever his reason for cancelling the event, it wasn’t because of safety concerns.

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  23. Trump managed to not only shut down his protesters, but make them look evil and himself look like a victim while doing it. The press he got from this was way better than another round of him bashing Muslims to get rednecks to cheer would have given him. Step 2 was the usual bold faced lie then insist it is true when someone says it isn’t technique to say the cops told him they were going to do it.

    Really, if he just ran on his ability to make moves like this I’d have no problem voting for him. Unfortunately, he uses his savvy to get idiots to vote for him by inciting hatred, so maybe it is a catch-22.

  24. So, let’s assume that the Chicago Police department is telling the truth that they did not request or advise that Trump shut down his rally, because if they had done that then it would have been government shutting down free speech because of the possibility of violence. Does the CPD have any responsibility for giving protestors too much space for protesting, by not arresting the ones starting fights or taking peoples Pro Trump signs and yelling in their faces? If it’s getting out of hand then shouldn’t they step in, otherwise they are responsible for violating 1A? Also it’s said that the CPD were told to defer to campus police and that CPD were essentially handcuffed from acting. Couldn’t both the campus and CPD be sued for violating 1A?

    1. This is nothing more than Reality TV 101. Watch Big Brother or Survivor and you will see the same show you are currently watching unfold in Politics. There is no corruption without a corruptor. They are the 2 sides of the same coin. Trump by his own admission is the Corruptor and Clinton by her many deeds is the Corrupted. By voting for either one you are becoming a bit player in this Reality TV series. Just once vote for candidate number 3 or just turn off the damn TV.

  25. Man is not evolved enough to maintain a functional society. The majority of people including me unfortunately are more ruled by emotions than by reason. The one consistent thing throughout history is war and the fact that those that start them never fight them. The three main reasons for war are nationalism, religion and some group behind the scenes stirring the pot to make more money. When our country gets into a war a select few get rich, a lot die and the majority get poorer. People let’s evolve and tell the elite to send their sons and daughters to die because without your blood this madness will end.

  26. Even if the CPD didn’t tell Trump to shut it down… wouldn’t their failure to actively provide a safe venue be a failure to protect his 1A? They have an a ligation, and failure to meet it is a violation of their duty resulting in the heckler’s veto. Had he cancelled and nothing happened, then obviously this wouldn’t have been a heckler’so veto… but since things did erupt, was he not right in cancelling, thus proving the failure of the CPD, thereby showing their failure to secure his 1?

    I am by no means a Trumpite… but the left’s lust for censorship via the masses is downright scary.

    1. a ligation =obligation…
      Stupid phone keyboard autoincorrect.

  27. It really makes no difference which one of these clowns gets elected, the deep state will carry on exactly as before.

    Dream On?:

    “……In your dream, Donald Trump is not a fraud,
    In your dream, Sanders is not a fraud,
    In your dream, all the rest are not frauds,
    In your dream, Obama is not a fraud,
    In your dream, Reagan was not a fraud,
    In your dream, all the rest were not frauds,

    In your dream, the constitution was not a scam,
    In your dream, the Supreme court is not a scam,
    In your dream, 9/11 was not a scam”
    In your dreams, the war on terror is not a scam,
    In your dream, al -qaeda was not a scam,
    In your dream I.S.I.S. is not a scam”

    Lyrics excerpted from “Dreams [Anarchist Blues]”:
    https://www.youtube.com/watch?v=QMXtoUtXrTU

    Regards, onebornfree

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