Heckler's Veto

Copyright 1999 by Ronald B. Standler

Table of Contents

heckler's veto
no polite audience
ignoramus's veto
"marketplace of ideas"


There are a number of freedom of speech issues on the Internet.
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.

Heckler's Veto

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 US$ 6.7×105.
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:
  1. 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 community groups.
    Id. at 4. [citations omitted]

  2. Edwards v. Louisiana, 372 U.S. 229 (1963).

  3. Cox v. Louisiana, 379 U.S. 536 (1965).
    Cited with approval at 551-2 some of the above quoted words from Terminiello.

  4. 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.

  5. 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.

  6. Gooding v. Wilson, 405 U.S. 518 (1972).

  7. 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.

  8. 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 unconstitutional.

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:
Congress shall make no law ... abridging the freedom of speech ....
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.

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:
  1. the content of the message itself (when expressed clearly, precisely, and without hyperbole)

  2. inflammatory or provocative style: pejorative labels, hyperbole, obscenity, epithets, vituperation – which function to increase the shock value of the message itself.
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.

Ignoramus's Veto

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 censorship legitimate.
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 forum doctrine.
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. For example:
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 ideas.
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 alternatives. 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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