“It is now widely believed,” Frederick Schauer observes in a
new essay, “that restricting the speaker on account of the actual or
predicted hostile and potentially violent reaction of the audience gets our
First Amendment priorities backwards.” To restrict speakers on this basis would
be to grant the so-called heckler’s veto. Angry audiences would have, in
effect, a right to enlist the state to suppress speech they don’t like; the
more mayhem they threaten, the more potent this right would become.
Over the past fifty years or so, the U.S. Supreme Court has
become less and less willing to countenance the heckler’s veto. Its First
Amendment case law turned decisively against the proposition that a speaker may
be punished for provoking a hostile audience, or inciting a sympathetic one, in
a series of cases from the 1960s involving civil rights demonstrators. By the
time the Court decided Forsyth County v. Nationalist Movement in 1992,
it was not clear there were any justices who would allow a government
body to impose higher fees on speakers, such as the white supremacists of The
Nationalist Movement, whose messages were likely to create higher expenses for
police or related services because of their inflammatory content. Lower courts have applied Forsyth
County with vigor. By now, Dan Coenen recently opined, “the heckler’s-veto-based,
hostile-audience-speech concept” appears “all but constitutionally extinct.”
The basic First Amendment question that a city like Charlottesville faces today
when white supremacists seek to hold a rally is not whether it can force them
to internalize the resulting law enforcement costs, much less ban them
altogether. The question Charlottesville faces is just how much money and
effort must be allocated to protecting the white supremacists.
In place of the heckler’s veto, the Court has thus created what
we might call the provocateur’s privilege. Extreme speakers have become
entitled not only to use public forums in the face of actual or anticipated
hostility, but also to commandeer public resources to try to keep that
hostility within bounds. And the more extreme a speaker is, the more hostility
will need to be managed and so the more resources will need to be commandeered:
as Schauer writes, “the greater the provocation, the greater the reallocation.”
Modern First Amendment doctrine, in other words, does not simply prevent
neo-Nazis, neo-Confederates, and the like from being silenced by disapproving
communities. It forces those communities to pay extra to enable their speech.
Schauer’s essay on “The Hostile Audience Revisited,” which is
being published today as the second installment in a series I am
editing for the Knight First Amendment Institute at Columbia University,
explores this dilemma in light of recent confrontations between speakers and
protesters in Charlottesville, Berkeley, Boston, and beyond. Schauer does not
offer any comprehensive constitutional solutions; unless one is willing to rethink
a half century of judicial resistance to content discrimination, it is hard to
see how First Amendment doctrine could supply one. But with characteristic
insight, he sheds light on the dilemma by limning its contours and placing it
in historical, conceptual, and comparative context.
Four respondents pick up where Schauer leaves off. Jelani Cobb draws a distinction between a movement and a mob and submits
that the Unite the Right rallygoers in Charlottesville were the latter, which
implies that the “hostile audience” paradigm gives a misleading impression of
where the true threat to public safety came from in that case—namely, from the
speakers.
Mark Edmundson suggests that the incidence of extreme audience hostility might
be reduced through “resourceful use of technology and . . . resourceful
policymaking,” including systematic surveillance of demonstration sites. For
some readers, this suggestion may be yet more evidence of a kind of law of
conservation of perversity, or the way in which solutions to the problem of the
heckler’s veto always seem to produce their own democratic and deliberative
harms.
Suzanne Goldberg examines different types of “costs”—pecuniary, pedagogic,
psychological—that speakers can impose on colleges and universities, and lays
out a series of approaches that a private institution might employ in
determining whether to allow certain especially offensive or disruptive
speakers on campus.
Finally, Rachel Harmon calls
attention both to the central role of the
police in managing large-scale protests and to the broad discretion that police
officers continue to enjoy in this role, notwithstanding the First Amendment
restrictions that have been heaped on permitters and prosecutors. Whatever the
best view of the First Amendment, Harmon explains, “it is largely the police
department rather than the law that determines what constitutes permissible
protest and what instead represents a sufficient threat to public order to
justify a forceful response.”
I suspect that few, if any, readers will agree with all of these
commentaries. Taken together, they offer a rich and unsettling portrait of
complexities raised by the hostile audience problem.