The Heckler’s Veto Is Illegal

Just a little food for thought, provided by Noah Feldman at Bloomberg:

The melee at the Donald Trump rally Friday night in Chicago raises a fundamental First Amendment question: When a speaker, such as the Republican presidential candidate, is confronting angry protesters, whose speech rights come first: the speaker’s or the protesters’?

The U.S. Supreme Court’s answer to this question has evolved over the years. At one time, the court was ambivalent, sometimes favoring the speaker and sometimes willing to shut down the speaker to avoid public disorder.

Today, however, the norm is clear: Protesters who disrupt a rally can be removed by police so that they don’t exercise what’s called a heckler’s veto over the rally’s organizer. It shouldn’t matter whether it’s the Ku Klux Klan interrupting a civil-rights speaker or civil-rights protesters interrupting a racist diatribe. The law considers the speaker’s rights as paramount.

I hold no truck with Donald Trump. I will not vote for him under any circumstances whatever. He shouldn’t encourage violence in his supporters. But he has a right to speak and “protesters” don’t have a right to prevent him from speaking.

And our arse-hat in chief here in Chicago, Rahm Emanuel, is wrong on the law. He’s defending the wrong people.

17 comments… add one
  • Modulo Myself Link

    It’s called civil disobedience.

  • Modulo Myself Link

    If you are walking by a guy on a street-corner explaining how the Jews run the world, his 1st Amendment rights are as valid as yours when you respond. If it’s his rally, he can throw you out, but his rights should be no more sacrosanct than they are on the street-corner. You can buy control but you can’t buy the rights of others.

  • Being jailed is part of civil disobedience.

    his 1st Amendment rights are as valid as yours when you respond.

    Not if you try to prevent him from speaking or being heard. The law is pretty clear on this, as the linked post documents.

  • Modulo Myself Link

    The law seems clear that a person interrupting a rally can be removed. I don’t think anyone is arguing that they shouldn’t be removed.

    The argument I’m getting is that it’s morally wrong to disrupt a rally as if buying up invisible space buys you a safe zone. Please. The 1st Amendment touches on something greater than a bunch of rulings by judges and it doesn’t give politicians the authority to avoid direct dissent.

  • CStanley Link

    MM, do you acknowledge that there is a difference between rebutting speech (after the fact) and shouting it down so that it can’t be heard?

  • PD Shaw Link

    The backgrounder leaves out the other relevant legal precedent with some particular relevance to the Chicago area:

    “Initially, there was disagreement over tactics. Many UIC professors, students, and community members initially demanded the school cancel the rally. “The university said it’s their policy to rent out the space to any political candidate. But Trump is not just any political candidate,” Nyi said. “It’s an issue of safety for the students. He has a history of inciting violence against people of color. His supporters are putting people in real physical danger. Last night, we saw a lot of those predictions come true.” When the school decided to go forward with the event, some suggested protesters register for rally tickets en masse but not show up, so that Trump would be speaking to a near-empty stadium. Then organizers suggested those who wanted to enter the event could do so, understanding the risk.”

    The obvious precedent here is the Village of Skokie v. National Socialist Party of America, where a nearby Jewish suburb with numerous Holocaust survivors was forced to give permission to a NAZI storm trooper parade. The Village complained that the action was so provocative in this place that the parade could be banned in the interest of public safety. While the swastika was clearly provocative and intended to be so, the controlling precedents “direct the citizens of Skokie that it is their burden to avoid the offensive symbol if they can do so without unreasonable inconvenience.”

    So it was foolish to believe that Trump’s speech could be censored, and it was foolish to be express one’s concern for one’s safety by going to Trump’s rally with the intention to break the law.

  • Modulo Myself Link

    MM, do you acknowledge that there is a difference between rebutting speech (after the fact) and shouting it down so that it can’t be heard?

    Well, no one actually shouted down Trump’s speech, because he cancelled it in an attempt to fire up the rubes. The protesters were in the crowd everywhere; it’s not shouting down if you show up to a rally you disapprove of. The fact that being a group of blacks or a group of Muslim-looking attendees is enough to be a disruption is Trump’s problem. If he can’t speak to people because of their skin color, if his message doesn’t work, that’s on him.

    But even if a chant did break out. So what? Trump has to repeat himself. There’s no vital information lost in the speech. What’s lost is the spectacle.

    The oldsters with visions of 1968 and 1972 in their minds think this is poison. I’m not so certain. I think it’s more like baiting Trump to continue his scam in the same direction he began.

  • PD Shaw Link

    MM: I certainly think nonviolent civil disobedience can be ethically justified in the right circumstances. I don’t think all of the protesters were nonviolent, but were engaged in “fighting words.” I also doubt the efficacy of shutting down the Trump rally to achieve any greater goal.

  • CStanley Link

    Well the blog post was specifically about the hecklers veto, and you countered with a comment about moral justification vs. legality. So all of that was an abstract discussion and not about particulars of what has or hasn’t taken place at Trump rallies.

  • Modulo Myself Link

    Well the blog post was specifically about the hecklers veto, and you countered with a comment about moral justification vs. legality.

    Because nobody on any side is objecting to the removal of protesters. What is being objected is the idea that it’s right to protest Trump at his speeches. Big difference.

    PD: if being black or hispanic constitutes ‘fighting words’ then I’m certain that there’s ethical justification in showing up to be thrown out of the wonderful Trump experience.

  • PD Shaw Link

    “Fighting words” are words spoken specifically at an individual, which instantly “inflict injury or tend to incite an immediate breach of the peace.” Like yelling “fascist, fascist, fascist” in someone’s face.

  • Modulo Myself Link


    So pro-choicers can beat the shit out of a pro-lifers for calling thembaby killers? What about how Obamacare Tea Party rallies? Was it fine to punch somebody in the face for saying that you were in favor of death panels? Or what about someone who is Muslim (the enemy religion) going after a person with a Trump hat on? Is that allowed? Or should free speech be respected?

    Is there anyone in their right mind arguing the above? What you’re saying is that Trump supporters are the type of people who can dish it out but can’t take it. Which is true.

  • PD Shaw Link

    MM: States will differ on the details, but provocation is a defense to battery, if reasonable. So, yes, if you insult someone who cleans your clock, a jury of your peers might find it reasonable and refuse to convict. Dave’s dogs have a provocation defense and they’ve never voted for a crook in their life.

  • steve Link

    PD- So if Trump calls them rapists, or yells communist, communist at them (or his supporters do so) would violence then be justified?

    FTR, I think it has been established that it is illegal, but as has been noted we also have along history of civil disobedience. They should be arrested.


  • Andy Link

    OT, A pretty good analysis of the Trump Phenomenon in a historical context:

  • CStanley Link

    What’s lost is the spectacle.

    It seems to me that everyone is getting the spectacle that serves their purposes out of this.

  • Ben Wolf Link

    A private citizen can trespass, they can disturb the peace; they cannot violate a “1st Amendment” right.

    A private citizen can burglarize, they cannot enagage in “unlawful search and seizure.”

    A private citizen commit murder and terrorism against the New York Times, they cannot infringe on “freedom of the press.”

    A private citizen can steal your gun, they cannot interfere with your right to “keep and bear arms.”

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