There is little question that it’s rude and offensive to disrupt a presentation, particularly one about civil discourse. If it devolves into conduct such as storming the stage, physically attacking a speaker, even grabbing a mike, then it can be prohibited, but based on conduct rather than speech. But absent prohibited conduct, can the speech be stopped?
The incident on Tuesday came at a panel discussion titled “What Is Civil Discourse? Challenging Hate Speech in a Free Society.” The event, held in a UCLA auditorium, was hosted by the university, the Los Angeles Times and the U.S. Holocaust Memorial Museum.
Speakers included the U.S. Holocaust Memorial Museum’s Edna Friedberg, UCLA law professor Eugene Volokh, Los Angeles Times Deputy Editorial Page Editor Jon Healey and Rachel Brown, executive director of Over Zero.
During the Q&A, a young woman decided that what she had to say was more important than what anyone else had to say.
Notably, she was not disrupting Milo or Ben Shapiro, or even Charles Murray or Christina Hoff Sommers. Not that they should be disrupted, but they tend to be the targets of the intellectually challenged, characterized as voices that can’t be allowed to speak lest their words commit violence upon the listeners’ ears.* No, this was a discussion about civil discourse. Has meta-fury reached the point that talking about talking is itself racism?
As she continued, she said “yes, you can take me out of this room, but I’m not going to shut up.” As security attempted to remove her, the protester claimed “we can’t normalize fascism” and called on those who agreed with her to stand up and hold up their fists.
“Come on, stand up because this is what the good Germans were facing. This is what the people in Nazi Germany were facing,” she said.
The other protesters joined in on the shouting and yelled “no Trump, no KKK, no fascist USA” as one of the speakers attempted to speak.
As a matter of conceptual free speech, the heckler’s veto violates precepts, norms and etiquette. It’s not a justifiable weapon to silence others. The contention is that the uninvited speaker, whose purpose is to hijack and disrupt another speaker, is merely exercising her free speech. It’s an irrational argument, regardless of whether you prefer the speech of one side or the other. It’s wrong even if you passionately believe that the speech being silenced deserves to be silenced.
But can it be prohibited by a law without violating the First Amendment? It certainly seems as if it should be, because every thinking person understands what’s wrong with the heckler’s veto, but what exception to the First Amendment allows for its prohibition?
Contrary to the view of these protesters, individuals do not have a right to prevent others from speaking. It has long been recognized in constitutional law that the “heckler’s veto” — defined as the suppression of speech in order to appease disruptive, hostile, or threatening members of the audience — can be as much a threat to rights of free expression as government censorship.
These are the words of Berkeley Law School Dean Erwin Chemerinsky, a noted First Amendment scholar, and Howard Gillman, Chancellor and lawprof at UC/Irvine. As legal arguments go, this is appallingly vapid. Individuals “do not have a right”? Says who? “Long been recognized in constitutional law”? Cite? Doctrine? Anything other than conclusory tripe? But then, they don’t say the law allows for prohibition. They say the “heckler’s veto” has “long been recognized” as “as much a threat” as government censorship. In other words, they got nothing.
The only protections against the heckler’s veto are to require officials to make every effort to control the disrupters or to deter their efforts by treating the disruption as a punishable breach of the peace. Of course, it is possible that, despite best efforts, safety or public order cannot be maintained without calling an end to a controversial event. But this should be a last resort, only after exhausting all efforts to control those who are creating the threats against the lawful expression of speech.
How does one “require officials to make every effort”? What is “every effort”? If someone disrupts invited speakers, can officials physically assault and remove them? Taze them? Put a bullet between the eyes? Moral suasion that they are violating norms of free speech is fine, but unavailing. The disrupter is certain that she holds the moral high ground and that her speech is far more critical to righteous ideas than anyone else’s. She will not be persuaded to sit down. So whatcha gonna do about it, bro?
In such a limited public forum, and in other places on campus where certain activities are assigned and recognized, those who have been given access to the space for certain purposes have the right not to be disrupted in that activity.
That is what justifies Claremont McKenna’s decision to punish seven students for their role in blocking an audience from hearing a speech by Heather Mac Donald, a fellow at the Manhattan Institute and critic of the Black Lives Matter movement, and that would justify a decision by William & Mary to take action against those that prevented the ACLU’s Claire Guthrie Gastañaga from speaking because of the group’s legal defense of white supremacists in free-speech cases.
This is a somewhat disingenuous argument, as the punishment is predicated upon college policies and applied to college students who agreed to be subject to those policies by virtue of their attendance. If they weren’t students, there would be nothing to be done. Alum? Non-student public audience members? They can’t be touched.
A variety of arguments have been made, from time, place and manner restrictions to some amorphous prohibition on undefined “disruption,” but none bear up to scrutiny. Applause, cheers, laughter all disrupt, but in a good way. The only way to distinguish the heckler is by content, and that can’t be done unless it falls within a defined exception, because the heckler has a right to free speech too.
Simply put, the right to speak does not include a right to use speech to keep others from speaking.
Chemerinsky puts it simply, and simplistically, because that’s how he feels free speech should work. But given that the hijackers don’t really care about Erwin’s view of nice free-speech etiquette and norms, they will not abide. Much as we (we being those people who are not certain of the impending Apocalypse) may all be able to agree that this is wrong, contrary to the concept of free speech and shouldn’t be allowed, the problem is that there may be no constitutional basis to prevent it. Feelz aside, it’s a very hard legal question whether the free-speech rights of the speech hijacker can be generally outlawed.
*The line of unacceptable speech has expanded beyond speech itself, to the nature of the speaker. The UC/Santa Cruz Republican Club can’t have a meeting because their members are, by definition, “fascists,” “racists” and “white supremacists.”
Your existence is a disturbance to every marginalized person in this country.
So many people want to believe there are only a few bad men. So many people want to believe they don’t know any bad men. So many people do not realize they are bad men.
We are all bad men. Other than confess and genuflect for our badness, there is nothing to be said.