Copyright 1999 by Ronald B. Standler
Table of Contents
no polite audience
"marketplace of ideas"
There are a number of freedom of speech issues on the Internet.
- The biggest issue for most people is obscenity,
which I discussed in my essay on
law & technology.
- There is the possibility of liability for information,
which I discussed in my essay on
- Beginning around 1997, hackers trashed many web sites
that were posted by organizations that the hackers hated,
which I discussed in my essay on
In my mistaken notion that these hackers were functioning as
hecklers, I searched case law in the USA in May 1999
for a topic known in legal jargon as a "heckler's veto".
This essay shares what I learned on that topic.
At the end of this essay, I included some thoughts on the phrase
"marketplace of ideas" that the U.S. Supreme Court uses
in cases about freedom of speech.
Imagine a speaker on a controversial issue, who gives a speech in a
public place. A crowd of opponents may gather there in a demonstration
against the speaker's message. There may be substantial efforts
by law enforcement personnel to maintain order,
specifically to prevent a riot. It is quite logical for communities
to try to recover the cost of the police presence by requiring
a fee paid by the speaker or the group that sponsors the speaker.
Logical, maybe. But such a fee is an unconstitutional burden on
freedom of speech in the USA.
In some cases, the fee may be so burdensome that the fee is a pretext
for denying the speaker access to some public forum.
For example, police protection for one civil rights march cost
Forsyth County v. Nationalist Movement,
505 U.S. 123, 125-126 (1992).
If such a large cost
were charged to the marchers, it could have prevented their lawful
march under their First Amendment rights to freedom of speech and
freedom of assembly.
But, the size of the fee is irrelevant, because,
as Justice Blackmun said,
- A tax based on the content of speech does not become
more constitutional because it is a small tax.
- Forsyth County v. Nationalist Movement, 505 U.S. 123, 136 (1992).
In a case involving removal of a painting from public display,
because of the "very faint" possibility of riots,
Judge Posner tersely put the whole issue in perspective when he said:
- The rioters are the culpable parties, not the artist whose
work unintentionally provoked them to violence.
- Nelson v. Streeter, 16 F.3d 145, 150 (7thCir. 1994).
There is a long line of cases on this point:
- Terminiello v. City of Chicago, 337 U.S. 1 (1949)
(speaker was arrested to prevent disturbance by crowd of
approximately 1000 protesters).
Justice Douglas, one of the strongest supporters of the First
Amendment ever to sit on the U.S. Supreme Court, wrote
- Accordingly a function of free speech under our system
of government is to invite dispute. It may indeed best
serve its high purpose when it induces a condition of
unrest, creates dissatisfaction with conditions as they are,
or even stirs people to anger. Speech is often provocative
and challenging. It may strike at prejudices and preconceptions
and have profound unsettling effects as it presses for
acceptance of an idea. That is why freedom of speech,
though not absolute, is nevertheless protected against
censorship or punishment, unless shown likely to produce
a clear and present danger of a serious substantive evil
that rises far above public inconvenience, annoyance, or unrest.
There is no room under our Constitution for a more restrictive view.
For the alternative would lead to standardization of ideas
either by legislatures, courts, or dominant political or
Id. at 4. [citations omitted]
- Edwards v. Louisiana, 372 U.S. 229 (1963).
- Cox v. Louisiana, 379 U.S. 536 (1965).
Cited with approval at 551-2 some of the above quoted words
- Brown v. Louisiana, 383 U.S. 131 (1966).
The first use by the U.S. Supreme Court of the phrase
"heckler's veto" is in footnote 1 at page 133.
- Tinker v. Des Moines, 393 U.S. 503, 508-509 (1969).
Fear of a disturbance in school was not adequate
reason for school principals to forbid pupils to wear black
armbands, as a symbol of their opposition to the war in Vietnam.
- Gooding v. Wilson, 405 U.S. 518 (1972).
- Healy v. James, 408 U.S. 169 (1972).
Not conventionally considered a "heckler's veto" case, but
the Supreme Court did unanimously rule that
a state college can not ban the
Students for a Democratic Society (SDS), because of a
possible risk that SDS members would disrupt classes.
- Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992).
The phrase "heckler's veto" occurs in passing in the
Supreme Court decision that declared the Communications Decency
Act unconstitutional. Reno v. ACLU, 117 S.Ct. 2329, 2349 (1997)(The statute
"would confer broad powers of censorship, in the form of a 'heckler's veto,'
upon any opponent of indecent speech who might simply log on and inform
the would-be discoursers that his 17-year-old child ... would be present.")
Note that, to a lawyer familiar with the First Amendment law,
the phrase "heckler's veto" means something different
than the plain English interpretation of the words suggests.
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.
Under the First Amendment, this kind of heckler's veto is
no polite audience
The First Amendment to the U.S. Constitution
only limits the ability of government.
Corporations and individual people can legally restrict freedom of speech
in the USA. Note the exact words:
Nothing is said about the ability of nongovernmental organizations to
restrict freedom of speech, nothing is said that guarantees a
speaker the right to be heard.
- Congress shall make no law ... abridging the freedom of speech ....
There is no Constitutional right to be heard by
a quiet, polite, or respectful audience. Hecklers act as
individuals, not agents of government, and so suppression of
freedom of speech by hecklers themselves is not a
First Amendment issue.
So, in plain English, a heckler can veto a speaker
a heckler can shout down or boo a speaker, and
thereby prevent the speaker from being heard.
Some defenders of hecklers argue that, because we can change channels to avoid
an offensive or distasteful television program, so they claim
they should also be able to shout down or boo any speaker in a public
forum that they find offensive or distasteful. This is a bogus argument.
Changing the channel of a television receiver when we are the only person
in the room does not affect other people. If we were to change the channel
while someone else was enjoying the program, they are likely to object!
In the specific case of heckling speakers in a public forum, the heckler
interferes with the rights of other people to hear the speaker and make
their own judgment about the value or validity of the speaker's ideas.
A person who chooses to heckle is a self-appointed censor of what other
people can hear, an idea that is inimical to democracy and free discussion.
Many of the cases of heckling in the USA since 1965 have occurred on
college campuses, when a controversial speaker is invited to speak.
It is permissible for universities to promulgate rules regarding
free inquiry on campus and establishing the right to hear speakers
without interference from hecklers.
The enforcement of these rules should be content neutral:
it is the heckling itself that is wrong, and it is no defense to
heckling that the heckled speaker is a "bad person".
In passing, I note that there are often two parts to
offensive or distasteful speech:
People with a controversial or unpopular message often adopt
an inflammatory style, perhaps because it gets more attention
to the speaker. By adopting an inflammatory style, controversial
speakers often make life more difficult for themselves.
However, courts are properly reluctant to be arbiters of good taste,
polite behavior, niceties of etiquette, etc.
- the content of the message itself
(when expressed clearly, precisely, and without hyperbole)
- inflammatory or provocative style:
pejorative labels, hyperbole, obscenity, epithets, vituperation
which function to increase the shock value of the
In a heckler's veto, it is the possibility of violence that
motivates the government to silence the speaker.
In the ignoramus's veto, it is the possibility of misunderstanding
or misinterpretation that motivates the government to silence the speaker.
The concept of the ignoramus's veto was first expressed
in a concurring opinion in 1992 by Judge Easterbrook:
- Contrary views, expressed in cases such as ...
create an obtuse observer's veto, parallel to a heckler's veto
over unwelcome political speech.
An obtuse observer will not appreciate that the Constitution requires the
government to tolerate all kinds of speech in public places and so will infer
that the government endorses what it does not forbid. Private errors do not
justify public discrimination against speech. Otherwise some persons'
failure to understand the meaning of the first amendment
(that the government must remain neutral)
would become an occasion for curtailing the scope of that
amendment. Public belief that the government is partial would compel the
government to become partial. The Free Exercise Clause offers special
protection for religious speech. If hecklers cannot silence political
speech in a public forum, obtuse observers cannot silence religious speech
in a public forum.
- Doe v. Small, 964 F.2d 611, 630 (7thCir. 1992)(Easterbrook, concurring)
[citations deleted, boldface added]
In a majority opinion in 1993, Judge Easterbrook said:
- Just as bellicose bystanders cannot authorize the government
to silence a speaker, so ignorant bystanders cannot make
- Hedges v. Wauconda School Dist., 9 F.3d 1295, 1299-1300 (7thCir. 1993).
The concept of ignoramus's veto was also adopted in a case
decided in a neighboring circuit.
- We believe that the plaintiffs' argument presents a new threat to religious
speech in the concept of the "Ignoramus's Veto." The Ignoramus's Veto lies in
the hands of those determined to see an endorsement of religion, even though a
reasonable person, and any minimally informed person, knows that no
endorsement is intended, or conveyed, by adherence to the traditional public
- Americans United for Separation of Church and State v.
City of Grand Rapids, 980 F.2d 1538, 1553 (6thCir. 1992)
I believe that it is regrettable that pejorative terms like
"obtuse" or "ignoramus" or "ignorant" have been used by these judges
to characterize plaintiffs' positions,
when plaintiffs were engaging in a good-faith
enquiry about the limits of civil liberties (e.g., Does the display of
religious symbols on government property constitute a violation of
the separation of church and state?).
One should have opinions on issues without denigrating or using
ad hominem attacks on the opposition.
Marketplace of Ideas
There is a wonderful book by Prof. G.H. Hardy, A Mathematician's
Apology that, in my opinion, is the best description of what it
means to be a creative intellectual. Hardy was a Professor of Mathematics at
Cambridge University in England and one of the outstanding mathematicians
of the 20th Century. In his foreword to this book,
C.P. Snow quotes Hardy:
- It is never worth a first class man's time to express
a majority opinion. By definition, there are plenty of
others to do that.
Progress is made, not by comfortably agreeing with the
conventional wisdom, but by having the courage to say what no one
else is saying and to say it with clearly articulated reasons that
motivate people to change their opinions.
One of the basic philosophical principles justifying freedom of speech is
faith that good ideas will eventually prevail if there is free
an uninhibited discussion. This faith is mentioned in decisions of
the U.S. Supreme Court with the phrase "marketplace of ideas".
- This analogy to a commercial market in ideas first appeared in 1919:
- ... they may come to believe even more than they believe the very
foundations of their own conduct that the ultimate good desired is better
reached by free trade in ideas--that the best test of truth is the power of
the thought to get itself accepted in the competition of the market, and that
truth is the only ground upon which their wishes safely can be carried out.
That at any rate is the theory of our Constitution.
It is an experiment, as all life is an experiment.
Every year if not every day we have to wager our salvation
upon some prophecy based upon imperfect knowledge.
While that experiment is part of our system
I think that we should be eternally vigilant against attempts to
check the expression of opinions that we loathe and believe to be fraught
with death, unless ....
- Abrams v. U.S., 250 U.S. 616, 630 (1919)(Holmes, J. dissenting).
- Twenty-one years later, the phrase "market of public opinion"
first appeared in a majority opinion of the U.S. Supreme Court.
Thornhill v. Alabama, 310 U.S. 88, 105 (1940).
The modern formulation, as "marketplace of ideas", first appeared in 1953:
- Like the publishers of newspapers, magazines, or books, this
publisher bids for the minds of men in the market place of ideas.
- U.S. v. Rumely, 345 U.S. 41, 56 (1953)(Douglas, J., concurring).
- Beginning in 1965, there was frequent mention of "marketplace of ideas"
in U.S. Supreme Court decisions on First Amendment grounds.
- I think the right to receive publications is such a fundamental right.
The dissemination of ideas can accomplish nothing if otherwise willing
addressees are not free to receive and consider them. It would be a barren
marketplace of ideas that had only sellers and no buyers.
- Lamont v. Postmaster General, 381 U.S. 301, 308 (1965)(Brennan, J., concurring).
Quoted with approval in Board of Education v. Pico,
457 U.S. 853, 867 (1982)(Brennan, J., judgment of the court).
- It is the purpose of the First Amendment to preserve an
uninhibited marketplace of ideas in which truth
will ultimately prevail, rather than to countenance monopolization of that
market, whether it be by the Government itself or a private licensee.
- Red Lion Broadcasting v. FCC, 395 U.S. 367, 390 (1969).
Cited with approval in
Turner Broadcasting v. FCC, 507 U.S. 1301, 1304 (1993);
FCC v. League of Women Voters, 468 U.S. 364, 377 (1984);
CBS v. FCC, 453 U.S. 367, 395 (1981);
Kleindienst v. Mandel, 408 U.S. 753, 763 (1972).
- ... it is a central tenet of the First Amendment that the government
must remain neutral in the marketplace of ideas.
- FCC v. Pacifica Foundation, 438 U.S. 726, 745-746 (1978).
- The [U.S. Supreme] Court has long viewed the First Amendment
as protecting a marketplace for the clash of different views
and conflicting ideas.
- Citizens Against Rent Control v. Berkeley, 454 U.S. 290, 295 (1981).
I am uncomfortable comparing the "marketplace of ideas"
(i.e., academic discourse) with the sale of commodities in a
commercial market, as there are too many dissimilarities.
Commercial success is often based on cost and benefits of a product,
while success of ideas is generally judged on truth or utility.
In his lone dissent to a famous U.S. Supreme Court case on
commercial speech, Justice Rehnquist said:
- The view apparently derives from the Court's frequent reference to the
"marketplace of ideas," which was deemed analogous to the commercial market
in which a laissez-faire policy would lead to optimum economic decisionmaking
under the guidance of the "invisible hand." See, e. g., Adam
Smith, Wealth of Nations (1776). This notion was expressed by Mr. Justice
Holmes in his dissenting opinion in Abrams v. United States, 250 U.S. 616,
630, 40 S.Ct. 17, 22, 63 L.Ed. 1173 (1919), wherein he stated that "the best
test of truth is the power of the thought to get itself accepted in the
competition of the market . . . ." See also, e. g., Consolidated
Edison v. Public Service Comm'n, 447 U.S., at 534, 100 S.Ct., at 2331;
J. Mill, On Liberty (1858);
J. Milton, Areopagitica, A Speech for the Liberty of Unlicensed Printing (1644).
- While it is true that an important objective of the First Amendment is
to foster the free flow of information, identification of speech that falls
within its protection is not aided by the metaphorical reference
to a "marketplace of ideas." There is no reason for believing that
the marketplace of ideas is free from market imperfections
any more than there is to believe that the invisible
hand will always lead to optimum economic decisions in the commercial market.
See, e. g., Baker, Scope of the First Amendment, Freedom of Speech, 25
UCLA L.Rev. 964, 967-981 (1978). Indeed, many types of speech have been held
to fall outside the scope of the First Amendment, thereby subject to
governmental regulation, despite this Court's references to a marketplace of
- Central Hudson Gas & Electric Corp. v. Public Service Comm'n.,
447 U.S. 557, 592 (1980)(Rehnquist, J., dissenting).
While I agree with Justice Rehnquist about the imperfect metaphor,
I do believe that it is desirable for the government to avoid
regulating speech, just as minimal regulation is desirable for
commercial markets. While free speech and capitalism are not perfect
systems, they have proven in practice to be better than available
History does seem to show that good ideas do eventually prevail,
but a time scale of hundreds of years is often required for revolutionary
thoughts. Prejudice and superstition seem to change more slowly than,
for example, scientific knowledge. In some areas of contemporary
technology, what was state-of-the-art technique in 1975 may be
essentially obsolete by 1990.
Perhaps a better way to state the justification for freedom of speech
is to say that it shall be for posterity to decide Truth,
not government bureaucrats, not judges, not politicians.
I have a quotation from Ibsen on the wall of my office:
- I hold that man is in the right who is most closely in league
with the future.
this document is at http://www.rbs2.com/heckler.htm
My most recent search for court cases on this topic was in May 1999.
version 4 Dec 1999
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