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).

Comments

[Longtobefree]

"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."

So political candidates cannot give speeches anymore, because they will arouse alarm, anger, and resentment in the half of the country that disagrees with them? This will make for a fairly quiet 2022.

[Longtobefree]

Oh yeah, how does this fit in with the vulgar insults from a certain political figure against the press? You know, stuff that will get you fired on the spot?

[Brett Bellmore]

Yeah, it's pretty bad, I'll give you that. I miss having a President who knew how to keep his language clean during press conferences.

[bernard11]

1. Doocy really is a stupid son of a bitch.

2. Trump's comments about the press - "enemy of the people," etc. were far worse than what Biden said.

Stop clutching your damn pearls.

[Brett Bellmore]

Longtobefree referenced "vulgar insults"; That's an issue of decorum, not content. Trump had a low opinion of the media, (It was justified, and mutual.) but he kept it clean during press conferences.

“What a stupid son of a bitch,” is certainly a vulgar insult.

[Brett Bellmore]

And, yes, even Biden realized/was informed that he'd gone over a line; He called Doocy up to apologize afterwards. To the extent "Nothing personal, pal." is an apology, anyway; A hitman might say that to you as he capped you.

But they kept the insult in the official transcript.

[Ridgeway]

IIRC, W did call a reporter "a world-class asshole from the New York Times."

Bigtime!

Anyway, I am pretty sure that guy wore it as a badge of honor. Not sure about Doocy, but being called stupid by Biden is pretty rich..

[KHP54]

Wasn't that in a presumably-private comment?

[MP]

More fodder for Defiant L. Thanks bernard!

[Ed Grinberg]

It's OK when my guy does it!

[DaivdBehar]

You criticize Islam. Muslims throw bottles. So the police, agents of the scumbag prosecutor, threaten to cite the critics. Hey, dipshit agent of the vile, scumbag lawyer occupation, throwing a bottle is the crime, not criticism. Arrest the Muslims throwing bottles. Why does the lawyer always side with evil? It is professional courtesy, the lawyer being the most evil occupation in the country, 10 times more toxic than organized crime.

[John F. Carr]

When I see a charge of "disorderly conduct" I read "contempt of cop". Disorderly conduct is usually excluded from the list of countable prior offenses under the US sentencing guidelines (§4A1.2(c)).

[Union of Concerned Socks]

Indeed, hecklers would be incentivized to get really rowdy, because at that point the target of their ire could be silenced.

This is what the "hate speech" pushers don't get: the more speech is legally circumscribed, the more violent responses to speech are enabled. "Words are violence" just enables and encourages real violence.

[Illocust]

I think at least a significant portion understand what you said and consider a it a good thing. The proponents of hate speech laws are a lot more violent than their opposition, so they'd win that fight.

[jimc5499]

"[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,"

No police can't, supposedly. Local Governments require "permits" for public speaking and then deny speakers those permits due to fear of violence from people who disagree with them. When they are issued a permit, a peaceful speaker has it revoked if an incident occurs and then if the refuse to stop guess who gets arrested. It's happened time and time again. The majority of the time it is the conservative speaker who can't get a permit or has their permit revoked, while the people who actually cause the disturbance are handled with kid gloves.

[DaivdBehar]

The leftist thugs are agents of the vile lawyer profession. That is why they are protected, privileged, and empowered.

[Brett Bellmore]

And then you have cases like Charlottesville, where when the local government was commanded by the courts to issue a parade permit to a group they didn't like, they deliberately forced the people with the parade permit together with violent protesters, in order to have an excuse to cancel the permit.

The hecklers are often joined at the hip with the local government, unofficial enforcer of that government's intended orthodoxy.

[David Nieporent]

Is it an odd-numbered day? Brett's coming up with a conspiracy theory. Wait, that happens on even-numbered days, too.

[Toranth]

Or you could read the Hunton & Williams review of the Charlottesville Riots, which clearly spells out the events - including the preceding six months of misbehavior by the local government and police.

It would be amazing how often you dismiss facts and declare events that are inconvenient to you to be "conspiracy theories"... except that you do it all the time. It's not even an argument, much less a winning one. How about you try presenting some form of argument next time?

[ReaderY]

My general approach to third-party liability is pretty much an extension of the fighting words doctrine. If the state can prohibit something directly, it can take steps that fall in between fully prohibiting and fully protecting it. If can do lesser steps like enforcimg on complaint, and it can also do additional intermediate and less direct policy steps like imposing 3rd party liability, which penalizes but only if someone else gets harmed.

One might think the first amendment would be an exception and tend to impose a bright line. But it doesn’t. The Supreme Court has long held that local zoning can put red light district type businesses in out of the way places. And we seem to be moving in the direction - a development Professor Volokh is fighting as hard as he can - of a category of speech that is a sort of penumbra of fighting words in much the way indencency is a sort of penumbra of obscenity. The state doesn’t have to fully protect it; it can restrict limit the places it can occur, as long as it doesn’t completely prohibit it.

I suspect Professor Volokh doesn’t like, but accepts and puts up with, the Court’s indecency jurisprudence. And he doubtless doesn’t want to see the underlying logic extended to new concepts and categories.

But in many ways, I think it’s reasonable to see some of the heckler’s veto type cases as being a sort of penumbra of fighting words in much the same way indecency is a sort of penumbra of obscenity.

In theory, one might think there ought to be a bright line, obscene or not obscene. But there isn’t.

Perhaps tbe same sort of thing is going on here.

[Stephen Lathrop]

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.

That is damned confusing. Time and again I have been told by experts on this blog that when it comes to speech, no balancing test can be applied. Not ever.

But look! If you put "order and morality," in play, it's, "Get out the scales." So apparently the real rule is that no balancing test can be applied by the likes of me.

Somewhere out of sight there must be a standard—(on the top shelf in the tool room, beside the case that holds the gauge blocks?)—which stipulates how much, "order and morality," weigh on the balance. Or maybe it is a graduated set of precision standards, stored in a case of its own, to be selected as needed to achieve whatever balance an outcome might require.

Whatever is in that case, I have been admonished. Professionals tell me, "Don't you go rummaging around." I can understand that. Professionals don't let some amateur start playing with the gauge blocks, either. You could mess up the whole set.