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Another victory for the Heckler’s Veto

August 29, 2014
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The Heckler’s Veto is becoming one of the preferred instruments of cultural control and speech suppression in America.  It’s fairly easy to pull off: you just have to convince the authorities – college administrators, the police, the hosts of a speaking event, etc. – that you’ll respond with violence to speech you disfavor, leading the authorities to conclude that suppressing the speech is the easiest way to avoid trouble.

The winning Heckler’s Veto formula involves credible promises of violent unrest – the people you’re bullying have to know you mean business – coupled with a lazy reluctance to treat you as the problem, instead of standing up for the rights of those you wish to silence.  This state of affairs can come to pass because the targets of the veto are unpopular, the authorities aren’t terribly committed to exercising themselves in the defense of free speech, and/or because those doing the muzzling come from a politically preferred “victim” group, making them above criticism.  Thus we’ve had speakers like Ayaan Hirsi Ali chased off campuses, and the wearing of American flag T-shirts banned at American schools.

Eugene Volokh, in his “Volokh Conspiracy” legal column for the Washington Post, has another successful example of the Heckler’s Veto to report, in which a rather obnoxious group called the “Bible Believers” turned up at the Arab International Festival in Dearborn, Michigan in 2012, bearing shirts and banners with slogans that ranged from straightforward expressions of Christian belief to confrontational messages like “Islam Is A Religion of Blood and Murder.”  One of the Bible Believers was carrying a severed pig head on a stick.  Megaphones came out, and denunciations of the “pedophile prophet” of Islam were made.

This did not go over well with the crowd at the Arab International Festival.  Unfortunately, they did not restrain themselves to the honorable course of answering speech with speech, as Volokh relates:

As the Bible Believers moved deeper into the Festival, the crowd — a good portion of which appeared to be minors — continued to gather and yell. Some people started throwing debris — including rocks, plastic bottles, garbage, and a milk crate — at the Bible Believers. Someone in the crowd also shoved one Bible Believer to the ground. Some WCSO [Wayne County Sheriff’s Office] officers detained debris-throwers while other officers hovered at the edges of the crowd. Eventually, after about thirty-five minutes, the Bible Believers temporarily stopped preaching and stood as the crowd harangued them and hurled objects. Several officers, including some mounted units, attempted to quell the crowd.

After about five minutes of standing quietly, the Bible Believers began to move and preach again. As they did so, the cascade of objects intensified. Deputy Chiefs Richardson and Jaafar approached them a few minutes later. Jaafar explained that they could leave and that their safety was in jeopardy because not enough officers were available to control the crowd.

The Bible Believers, however, continued to preach, followed by what had swelled into a large crowd. Richardson and Jaafar then took Chavez aside to speak with him. Richardson noted his concern that [Bible Believer founder Ruben] Chavez was bleeding from where a piece of debris had cut his face. Richardson explained that he was responsible for policing the entire Festival, that Chavez’s conduct was inciting the crowd, and that he would escort the Bible Believers out of the Festival …

It is important to note that this was a public festival, not a private event.  The only ordinance violated by the Bible Believers, as confirmed by subsequent court proceedings, was the use of the megaphone, which they stopped using as soon as they were told it was not permitted.  (I find it a remarkable minor detail that the severed pig head on a stick didn’t violate anything.)  The Bible Believers were nevertheless threatened with arrest for disorderly conduct and escorted from the fair after less than an hour.  The police made good on their threat with a few arrests and citations.

An angry Ruben Chavez snapped at the officers, “I would assume a few hundred angry Muslim children throwing bottles would be more of a threat than a few guys with signs.”  Ah, but that’s how the Heckler’s Veto works.  The path of least resistance is to hassle the few guys with signs, and give the mob of bottle-throwers their way.  The Sixth Circuit Court ratified the Heckler’s Veto by upholding the actions of the police in an opinion released last Wednesday:

The majority concluded that, under Feiner v. New York (1951), the actions of the police were permissible. First, the majority concluded, the speakers actually intended to produce violence: “The video from the 2012 Festival demonstrates that Appellants’ speech and conduct intended to incite the crowd to turn violent.” There was no need, in the majority’s view, for a jury to determine this as a matter of contested fact. (The majority also suggested that speech that “statements ‘likely to provoke violence and disturbance of good order’” might be properly suppressed, at least when they lead to such violence, “‘even if no [responsive violence] be intended,’” citing Cantwell v. Connecticut (1940); the majority did not discuss Cohen v. California (1971), which seemed to limit Feiner to speech “intentionally provoking a given group to hostile reaction.”) Second, the majority argued, violence was actually produced and couldn’t reasonably be controlled in ways besides restricting the speech.

The dissenting judges explicitly described this as court sanction for the Heckler’s Veto, and worried about the perverse incentives it provided:

It does not take much to see why law enforcement is principally required to protect lawful speakers over and above law-breakers. If a different rule prevailed, this would simply allow for a heckler’s veto under more extreme conditions. Indeed, hecklers would be incentivized to get really rowdy, because at that point the target of their ire could be silenced.

More perniciously, a contrary rule would allow police to manufacture a situation to chill speech. Police officers could simply sit by as a crowd formed and became agitated. Once the crowd’s agitation became extreme, the police could swoop in and silence the speaker. The First Amendment does not contain this large a loophole….

I’m old enough to remember when schoolchildren were taught about the importance of “letting the Nazis march in Skokie, Illinois.”  Putting up with obnoxious but lawful exercises of speech is part of the price we pay for upholding the sacred principle of free speech.  The Nazis-in-Skokie parable is an extreme demonstration of the idea that neither government officials, nor public mobs, are gifted with the transcendent wisdom to decide which messages should be excluded from the public square, even when the scene involves 99 percent of the public fighting to keep their lunches down while a couple of Nazis march past.

Decisions like this one, coupled with the many other recent successful deployments of the Heckler’s Veto, illustrate the price we pay for setting aside that absolute commitment to free expression.  As Volokh observes, it’s easy to sympathize with attendees of the Dearborn Arab Festival who just wanted to have a nice day on the block, not get into a heated religious debate with a loud band of uninvited guests… but then again, it’s the public square, which means all guests are invited, subject to civic ordinances.  Previous generations of Americans understood that annoyance is a small price to pay in the defense of free speech.  But now the revised rules of engagement are clear: demonstrate your will to disorder, or even violence, clearly enough, and you can stamp out anything you don’t feel like hearing.

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