Heckling a criminal offence in the US? (crosspost from Crooked Timber)

In response to discussions about freedom of speech, particularly at university campuses, I started thinking about the question of heckling a speaker, and to what extent this is, or ought to be, protected by advocates of freedom of speech. I assumed that the correct formulation (both legally in the US context and in terms of what is appropriate) is the one attributed to Nat Hentoff

“First Amendment law is clear that everyone has the right to picket a speaker, and to go inside a hall and heckle him or her—but not to drown out the speaker, let alone rush the stage and stop the speech before it starts

It turns out, however, that Hentoff was wrong, as shown by the case of the Irvine 11.

The Irvine 11 were Muslim students protesting at a speech by the Israeli ambassador. At intervals of a few minutes, they stood up and called out comments critical of Israel. Each was then forcibly removed. On Hentoff’s reading, their removal was an unconstitutional violation of First Amendment free speech rights. Clearly, they weren’t shouting down the speaker, and the total time used up by their interruptions wasn’t significant.

But the police didn’t stop at removing the protestors. They were charged with and convicted of “disrupting a public meeting” and (since they’d acted in concert” with conspiracy to disrupt the meeting. Their conviction was upheld on appeal (Hat Tip: regular commenter J-D)

In these circumstances, it’s perhaps not so surprising to find that the American Civil Liberties Union is more solicitous about Donald Trump’s First Amendment rights to encourage violence against hecklers (or even silent protestors) than about the rights of the protestors, which, as the ACLU explains here are trumped(!) by the rights of private property (unless these rights are exercised in a racially discriminatory fashion).

Similarly, of course, the “free speech” debate in Australia is focused almost entirely on the right of powerful men to make racially offensive statements (the removal of “offend” was central to Turnbull’s failed changes to 18C). I’ve always assumed that we had a legal right to heckle speakers, within the kinds of limits suggested by Hentoff, but maybe that’s not so. I’d welcome any comments.

10 thoughts on “Heckling a criminal offence in the US? (crosspost from Crooked Timber)

  1. Not the only US case John. Woman who laughed at the John Sessions during his confirmation hearing : “www.independent.co.uk/news/world/americas/us-politics/jeff-sesssions-protestor-prosecuted-trial-laughing-desiree-fairooz-a7715701.html”

    Also (reluctant it seems) blasphemy investigation against Stephen Fry in Ireland.

    Welcome back to the dark ages!

  2. In a public meeting or gathering in a public place, I would think anyone has or should have the right to say anything at any volume with the unaided human voice or voices, provided it is not speech proscribed by the RDA, Section 18c etc.

    In a public hall, the same ought to apply except if the hall is hired by or on behalf of a speaker or speaking group. In the latter case, the hirers (as well as others) ought to be bound by the RDA, Section 18c etc. In addition, heckling ought to have a “reasonable limit” except when the “oppressors” themselves have gone beyond reasonable limits in some way or other. All these things are for the people’s direct judgement.

    Realistically, protesters ought to expect as a matter of course to be oppressed and silenced by the ruling class or its lackeys and representatives when the hall or event is “private”, as that may variously be defined. It doesn’t mean that it’s right but realistically that is what will happen. So they need to be prepared personally and group-wise for what follows. Ideally, they need the numbers to overwhelm elitist and reactionary control with mass, passive resistance. When people get desperate enough and someone smart enough and charismatic enough pulls out the Gandhi playbook again it could happen.

  3. I think heckling is a matter of judgement. I would say light heckling is legal and should be tolerated by venues, but when heckling becomes very disruptive then I can see why someone might get ejected from the venue for heckling. Also I can imagine that there might be some cases where heckling wasn’t appropriate at all, similar to how people often ask the crowd to turn off mobile phones before a lecture.

  4. self-censorship is the aim.

    then when nothing is said it means every one is in agreement.

    the ones who dish it out but can’t take it get very stroppy when the gloss of agreement is smirched.

    the stroppier they get the more self-censorship needs conscious elimination.

    watch your back,etc.

  5. There is no general legal right to free speech to Australia; just limits on the extent to which governments can legally restrict political communication.

    This would not prevent any private organisation removing hecklers, and unlikely to affect public organisations removing hecklers from their venues.

    As other commenters have said, it is just a matter of judgment as to whether hecklers should be tolerated or not.

  6. Perhaps more effective than prosecuting hecklers was the approach adopted by former Vice-Chancellor Zelman Cowen, addressing students at a mass meeting in the University of Queensland’s Great Court some 40 or 50 years ago: “I hear what you say”, was all he said. In one sense an acknowledgement of grievances, in another sense a devastatingly effective dismissal and put-down. No laws, no debates about rights, no police needed (though they were never far away). The eminent jurist had spoken.

  7. @Peter Chapman

    “The DO something about it!” should have been the natural reply.

    Followed by a plagiarized;

    “Got out the way if you won’t lend a hand!”

  8. Haha of course both those happened. My observation was about the great confidence of an academic bourgeois, untroubled, really, by the fires of revolution we sought to ignite; and about our own naivety. A contrast I think with the running scared and violent responses of Bjelke-Petersen and the Special Branch of the police at the time; and a contrast with the obvious over-reactions of US authorities and others today. A successful liberal bourgeoisie is confident of its power in the state and is relaxed in the face of diversity of opinion; these extreme legalistic and police reactions show the present ruling class to be neither successful or confident. Indeed I would say they are deeply troubled by diversity in many forms, and unsure of their options at this juncture in history. This applies to Australia as much as to the USA.

  9. Thanks John,
    I was there, as one of the few law students not in the library, at the time of “I hear what you say” per Zelman Cowan. I never did nor still don’t regard it as a put down but more an inability to answer legitimate concerns raised by students at the time concerning Vietnam [subsequently they were proved correct despite Zelman], Qld. corruption politically and police-wise [subsequently correct again!], Gerrymander [correct again]. At the very least it emphasised the need for a proper public discourse one the overly corrupt and corrupting Bjelke-Peterson was incapable of or ever promoting.
    The Courier Mail was still up to its oderous efforts politically distorting and supporting a corrupt regime. Any attempt at public debate was closed down by Police at the behest of Bjelke-Peterson.
    We also has the Police Special Branch stalking legitimate opponents and committing criminal offences – Don Lane subsequently a National Party MP and jailed was proved to have opened the postal ballot of Judge Douglas SCJ when a police officer – probably jailable now.
    Remember how close we got to a return to those days under Noddy Neman and his lot most of whom are still in opposition.
    AS to the real issue of public hectoring an interesting case currently in the High Court of Bob Brown v Tasmania will discuss issues rights of political communication rights and its relevance on private property [concerning forest protection protests].

  10. Even Americans mis-interpret their ‘right to free speech’. The First Amendment simply prevents the Government from making a law that would limit speech.

    “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

    Of course, this has been stretched beyond any reasonable interpretation by their failed design of political courts. Citizens United the classic case.

    Someone yelling at a meeting isn’t protected by the First Amendment.

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