By David L. Hudson, First Amendment Scholar
A controversial speaker is invited to a public university to deliver a speech. Many people exercise their free-speech rights to protest the selection of that speaker. However, some of those opposed to the speaker cross the line and engage in non-peaceful activities. Their disruptive behavior leads to the university canceling the event. This phenomenon, which is not fanciful or far-fetched, shows the power of the “heckler’s veto” – a term that arose out of so-called “hostile audience” cases.
“Heckler’s veto” refers to a situation involving a government official who allows a hostile audience’s reaction to shut down or silence an unpopular speaker. In other words, the speaker’s right to free speech is suppressed by the fear of disruption.
The U.S. Supreme Court sanctioned the heckler’s veto in the unfortunate case of Feiner v. New York (1951). Irving Feiner, a former World War II veteran and student at the University of Syracuse, fulminated against racism on a public street corner. He said that black people did not have equal rights and “should rise up in arms and fight for their rights.” A growing crowd surrounded Feiner and expressed hostility to the young speaker. Evidence in the record indicated that some in the crowd were “pushing, shoving and milling around.” Instead of protecting Feiner from the hostile crowd, the police arrested Feiner and charged him with incitement of a breach of the peace.
The U.S. Supreme Court upheld Feiner’s conviction by a 5-4 vote. The majority wrote that the police officers acted reasonably in trying to diffuse a potentially volatile situation. They wrote that Feiner engaged in “deliberate defiance” of police officers, who were worried about “the imminence of greater disorder.”
Justice Hugo Black filed a fiery dissent, contending that the police should have protected Feiner instead of placing him under arrest. He explained that “today’s holding means that as a practical matter, minority speakers can be silenced in any city.”
The late, great First Amendment scholar Harry Kalven, Jr. described the principle of heckler’s veto: “If the police can silence the speaker, the law in effect acknowledges a veto power in hecklers who can, by being hostile enough, get the law to silence any speaker of whom they do not approve.”
University officials should uphold the principle that even speakers with distasteful viewpoints should be heard and only in rare instances cave in to the heckler’s veto. Professor Brett Johnson explains in a 2016 article for the Communication Law and Policythat “[c]olleges and universities (private or public, but especially public) should publish clear policies that welcome controversial viewpoints, encourage lively debate regarding those viewpoints, and establish that attempts to silence those viewpoints will be punished.”
One of the most venerated principles in First Amendment law is Justice Louis Brandeis’ expression of what is known as the counter-speech doctrine. He wrote in his concurring opinion in Whitney v. California (1927):
“[I]f there be time to expose through discussion the falsehoods and fallacies, to avert the evil by the processes of education, the remedy to be applied, is more speech, not enforced silence. Only an emergency can justify repression.”
As I stated in testimony to the U.S. House Subcommittee on the Constitution and Civil Rights:
“When dealing with controversial speakers who will offend others, college and university officials should embrace and advance the counter-speech principle rather than resort to silencing and disinviting controversial speakers. Only in a true emergency should they resort to more drastic measures.”