The Right to Defy Criminal Demands: The Heckler's Veto

I've just finished up a rough draft of my The Right to Defy Criminal Demands article, and I thought I'd serialize it here, minus most of the footnotes (which you can see in the full PDF). I'd love to hear people's reactions and recommendations, since there's still plenty of time to edit it. You can also see previous posts (and any future posts, as they come up), here.

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It is generally a crime—disturbing the peace or disorderly conduct—to engage in offensive behavior "tending reasonably to arouse alarm, anger, or resentment in others" in public. Police officers thus generally have the power to order people to stop such behavior, in order to prevent a fight.

This is the font of the "fighting words" doctrine, which allows people to be punished for personal insults that tend to lead to a fight. The Court has famously held that such "epithets [and] personal abuse" are constitutionally unprotected, because they both "tend to incite an immediate breach of the peace" and "are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."

But the logic of the disturbing-the-peace theory could also apply to any speech that people find offensive enough to threaten a fight over, including political or religious speech that doesn't include personal insults—for instance, sharp criticisms of Islam at an Arab International Festival, which led to audience members "throwing plastic bottles and other debris." This in turn sometimes leads police officers to order the speakers to stop, on the theory that "you are a danger to public safety right now": "your conduct especially is causing this disturbance and it is a direct threat to the safety of everyone here"; "part of the reason they throw this stuff … is that you tell them stuff that enrages them." "If you don't leave we're gonna cite you for disorderly."

But courts have generally rejected this latter theory, on the grounds that the theory would wrongly implement a "heckler's veto":

[P]olice cannot punish a peaceful speaker as an easy alternative to dealing with a lawless crowd that is offended by what the speaker has to say. Because the "right 'peaceably to assemble, and to petition the Government for a redress of grievances' is specifically protected by the First Amendment," the espousal of views that are disagreeable to the majority of listeners may at times "necessitate police protection." … [T]he natural order of law enforcement and crime mitigation are not upended simply because community hostility makes it easier to act against the speaker rather than the individuals actually breaking the law; this is true when it appears that a crowd may turn to rioting, or even in the face of actual violence that was indiscriminately directed.[1]

"If the speaker, at his or her own risk, chooses to continue exercising the constitutional right to freedom of speech, he or she may do so without fear of retribution from the state, for the speaker is not the one threatening to breach the peace or break the law," at least unless the police are overwhelmed by a hostile crowd. The speaker is free to defy the hecklers' threats, even when such defiance may lead to attacks, fights, and the need for more police protection.

And the rationale for such protection stems not just from the particular speaker's free speech rights, but also from a desire to protect other speakers in the future:

It does not take much to see why law enforcement is principally required to protect lawful speakers over and above law-breakers. If a different rule prevailed, this would simply allow for a heckler's veto under more extreme conditions. Indeed, hecklers would be incentivized to get really rowdy, because at that point the target of their ire could be silenced.

Here we see what is perhaps the most forceful form of the right of defiance—a right secured as a constitutional matter, as a facet of the First Amendment, rather than just as a common-law right in the negligence and nuisance cases.

[1] Bible Believers v. Wayne County, 805 F.3d 228, 250–51 (6th Cir. 2015) (en banc).