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Free Speech

"Heckler's Veto": Two Related Meanings

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There's been lots of talk recently about "heckler's vetoes"; I thought I'd note that this phrase actually has two different meanings, with different legal significance, though they are related.

[1.] Most commonly, "heckler's veto" refers to (to quote Black's Law Dictionary), "The government's restriction or curtailment of a speaker's right to freedom of speech when necessary to prevent possibly violent reactions from listeners." Here's an early reference from the Supreme Court (Brown v. Louisiana (1966)):

Participants in an orderly demonstration in a public place are not chargeable with the danger, unprovoked except by the fact of the constitutionally protected demonstration itself, that their critics might react with disorder or violence. See Cox v. Louisiana; Wright v. Georgia; cf. Terminiello v. Chicago…. See generally on the problem of the "heckler's veto," Kalven, The Negro and the First Amendment, pp. 140-160 (1965).

Generally speaking, such a heckler's veto violates the First Amendment, because it involves the government restricting speech based on its communicative effect (and the potential "disorder of violence" stemming from listeners' reactions to that effect). By extension, one can imagine a similar heckler's veto at, say, a private university, with the university stopping a speech because of the threat of attack by objectors to the speech. That wouldn't violate the First Amendment, but I think it's inconsistent with academic freedom principles.

[2.] "Heckler's veto" could also refer to a more direct form of suppression: Again to quote Black's Law Dictionary, "An interruptive or disruptive act by a private person intending to prevent a speaker from being heard, such as shouting down the speaker, hurling personal insults, and carrying on loud side-conversations." (See, e.g., Harcz v. Boucher (W.D. Mich. 2021).)

Such a heckler's veto doesn't itself violate the First Amendment, because it involves solely nongovernmental action (e.g., shouting down a speaker). Indeed, if it's limited to noise, it might not be civilly actionable in many situations, since interrupting speech isn't itself a tort. It can, however, sometimes be a crime, a form of disturbing the peace; for more on this, see here.

And institutions, public and private—such as universities—may well set up their own rules, forbidding this second kind of heckler's veto. If imposed and enforced in a neutral way, those rules don't violate the First Amendment or, I think, academic freedom principles. There is no right to interrupt a speaker who has been invited to give a speech in a way that keeps him from being heard, just as partisans of that speaker have no right to interrupt a speaker from the opposite side.

Of course it's unsurprising that the phrase has these two related senses, as so many words and phrases do (both in ordinary English and in legal jargon). Both involve hecklers (and potentially by extension people who go beyond heckling to physical attack) preventing speakers from speaking. In the second, the prevention is direct; in the first, the prevention operates through the extra step of government officials physically stopping the speaker, or threatening the speaker with arrest or prosecution. Still, the two meanings are somewhat different, especially for legal purposes.

NEXT: More on the Students' Disruption of the Yale Law School Event

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  1. "The government's restriction or curtailment of a speaker's right to freedom of speech when necessary to prevent possibly violent reactions from listeners."

    Why doesn't the lawyer owned government do its job, and arrest the hecklers for disturbing the peace, instead of restricting the rights of the speaker? Why? Because the lawyer always sides with evil, its client.

  2. "Again to quote Black's Law Dictionary, "An interruptive or disruptive act by a private person intending to prevent a speaker from being heard, such as shouting down the speaker, hurling personal insults, and carrying on loud side-conversations." (See, e.g., Harcz v. Boucher (W.D. Mich. 2021).)"

    I guess Popehat can relax, knowing that those damn kids are indeed using the term correctly.

    1. Yeah, he's really got a bug up on that one, and I've heard both uses of hecker's veto for years.

  3. People willing to engage in this kind of protest don't believe in an adversarial legal system where both sides get a fair airing, no matter how heinous the other side is. I disagree with SC nominee KBJ on many if not most things, except I do agree that even Guantanamo detainees deserve vigorous representation. What are these 1L students going to do in life, pound on the table and protest until 2 appellate judges agree with them? If a law school was committed to the foundations of our legal system, I doubt they would admit these kinds of law students in the first place. Were there any sort of meaningful repercussions for these students? Nope.

    1. I would like to see a study of the bastardy rate of admitted students by year. It is probably in the files, and should not require any interviewing.

      1. I would like to see longitudinal studies of these protesting law students, to track them to see if they go into politics, and their spouses mysteriously become stock picking geniuses, while they are still professing concern for the common man, the thought passes through their mind, as they turn to look through the picture window of their mansion in a gated community well away from the hellscapes they promote as politicians.

        1. The answer to your inquiry is already well known to be true. As housing prices dropped 30% in 2008,they continued to rise around the DC Beltway. That is why people are so vicious, lose an election, lose big money. AOC, a bartender, now wears designer outfits costing $thousands on a modest income. Putin is the richest man in the world by far. Elected in a poor country.

  4. I'm sorry but I must respectfully disagree. Those are the same definitions. The only difference is who is acting (and based on that difference, do they have a duty to act or refrain from acting).

    This is no different from the definition of "censorship" which is deplorable regardless of who does it but illegal when the government does it.

  5. This is exactly why, throughout the course of history, political parties have formed their own "private" "security". It will be interesting to see if groups like the College Republicans start engaging in the practice.

    1. Carry on, College Republicans. To the extent your liability insurance allows, that is.

      1. Would anyone on a jury actually care though? I can tell you that there is a solid 30% of people out there who just wouldn't at this point and that number might actually be closer to 40%.

        The only way the government is getting away with its persecution of political prisoners is they managed to keep the venue in DC. (Even then they have tried hard not to take any of those to a jury trial). I imagine pick any other area of the country especially outside of the leftist enclaves and no one would care if a bunch of snowflake cry babies got their behind whooped.

        1. The Capitol doesn't move outside DC, so "they" didn't manage anything lol

  6. And here I promised not to comment so often. It's like an attractive nuisance.

    The second kind of hecklers veto need not even be about academic freedom. The trustees designated certain officials to schedule campus events, such an event was duly scheduled, and there was an attempted interruption by students acting without authority from the trustees.

    That's wrong whether they're protesting a speech or whether they're trying to obtrude a speaker onto the campus after he's been duly banned.

    So it's possible to defend the right of trustees to limit "academic freedom" (assuming they don't sandbag anyone and warn faculty and students of the rules) while vigorously opposing student disruptors.

  7. About the second definition of heckler's veto: Professors often encourage their students to shout down objectionable speakers. Frequently, these professors lead by example -- attending the event and then trying to prevent the speaker from being heard.

    Assuming that this occurs at a public university, I believe it is reasonable to see such actions as a 1st Amendment violation. As employees of the government, professors cannot actively suppress or interfere with protected speech.

  8. All of this is rearranging deck chairs on the sinking ship. Instead we should look more fundamentally at what is going on and realize that a different lense provides all the answers.

    Property rights. If I own the land, I make the rules of how one is to behave. One rule is you listen respectfully and if you can't, you don't get to be on mt land. Now the problem is solved because it is contractual and not an issue regarding the appropriate scope of free speech (is it purely a legal issue? Are their broader concerns whereby speech should still be protected? Or... who cares because what are the rules to entry to the place speech is happening in the first place?).

    1. I'm not sure, but I think there are limits to this. If you allow your property to be used as a public forum, I think this changes the situation somewhat. Hopefully, someone with more knowledge can chime in on this.

      1. That may be the case in the current legal framework. But my comment is about undoing the current, warped framework and relying on the clearer, more fundamental, and ultimately easier to adjudicate idea of property rights unrestrained (except by the obvious limitations of non-aggression).

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