Knight First Amendment Institute: From the Heckler’s Veto to the Provocateur’s Privilege

Reprinted with Permission From Knight First Amendment Institute at Columbia University

Emerging Threats series invites leading thinkers to identify and grapple with newly arising or intensifying structural threats to the system of free expression.

“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 B. 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 A. 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.

David Pozen is a professor at Columbia Law School and inaugural visiting scholar at the Knight Institute.