Balkinization: November 2017

From the Heckler’s Veto to the Provocateur’s Privilege

David Pozen

“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.

Posted 11:24 AM by David Pozen [link]