Hostile Audiences and the First Amendment: How Far Must The Violence Go Before Allowing A Heckler's Veto
In February, students at the University of California, Berkeley, invited an Israeli lawyer to deliver remarks discussing “Israel and International Law.”[1] Organizers initially expected the event to be held in a classroom but were forced to move it when another student group called to “Shut it down,” explaining the need to keep “Genocidal murderers out of Berkeley.”[2] Indeed, after observing the brewing counter-protest, organizers requested support from the university administration, including university security.[3] However, shortly before the event began, a hostile mob of about two hundred protesters surrounded the building, to which they ultimately gained unauthorized access, broke windows, and allegedly spat on and choked participants.[4] In response to these serious safety concerns, UC Berkeley police canceled the event and escorted participants to safety through what one student described as an “underground tunnel.”[5] A university spokesman called the events “appalling” but said, “we had to make that choice between doing what was necessary to let the event go on or protecting the people in the building.”[6]
Interestingly, that choice is fraught with First Amendment pitfalls. The First Amendment’s guarantee of free speech[7] in the context of speech that provokes a hostile audience has never been adequately fleshed out.”[8] From 1963 to 1969, the Supreme Court[9] reversed the convictions of civil rights demonstrators who refused to obey police orders to disperse for fear of imminent violence by hostile audiences, with Justice Goldberg noting in one case that “constitutional rights may not be denied simply because of hostility to their assertion or exercise.”[10] Indeed, if “a peaceful speaker, whose message is constitutionally protected, is confronted by a hostile crowd, the state may not silence the speaker as an expedient alternative to containing or snuffing out the lawless behavior of the rioting individuals.”[11] Thus, the rule seems to be that states may not allow a heckler’s veto, thereby preventing speakers from exercising their rights to express their opinions.[12]
How far the police are required to go to protect speakers from the hostile audiences they precipitate is unclear.[13] Must they incur the immense costs some protests can impose on local municipalities or colleges?[14] If local resources are insufficient, must state officials chip in by providing additional monetary resources for the event?[15] Must they send in the National Guard?[16] The extent of the initial speaker’s rights is more murky than one would think under the unequivocal language of the First Amendment.
The United Kingdom does not have a written constitution that provides heightened protection for the right to free speech, but citizens have maintained free speech rights under a statutory grant since 1998, and, indeed, under that statutory scheme there is a more formalized framework for deciding how to operate in some hostile audience situations.[17] Under Article 10 of the Human Rights Act of 1998, which incorporates the European Convention on Human Rights[18], “everyone has the right to freedom of expression”[19] subject to certain restrictions.[20] For example, when the police officer overseeing public processions “reasonably believes that… it may result in serious public disorder,” they may impose on the organizers or participants “such conditions as appear to him necessary to prevent such disorder.”[21] Moreover, if the officer in charge believes that conditions on the organizers are insufficient to remedy the threatened public disorder, he may apply for the suspension of all processions in that area for a period not to exceed three months.[22] Notably, these exceptional police powers have been seldom utilized and have sometimes led to public disagreements as to whether they should be imposed at all.[23]
In its effort to promote public order, the United Kingdom maintains a policy wherein significant efforts are applied to provide speakers the opportunity to express themselves, but where imminent or actual violence is not the only avenue that allows counter-protestors a heckler’s veto.[24] In this way, the United Kingdom has balanced the rights of speakers with the necessity of public order and provided a framework for deciding when to disallow expression, whereas in the United States, it is still unclear how far the police must go to allow speakers the ability to speak when their speech is sure to attract hostile or violent audiences.[25]
M. Mendel Pinson is a staff member of Fordham International Law Journal Volume XLVII.
[1] See Emma Goss, Maya Mirsky & Gabe Stutman, ‘I’m screaming for help’: Jewish students face violence at UC Berkeley Israel talk, the Jewish News of Northern California, (Feb. 27, 2024), https://jweekly.com/2024/02/27/im-screaming-for-help-jewish-students-face-violence-at-uc-berkeley-israel-talk/; see also @ssi_berkeley, Instagram, https://www.instagram.com/ssi_berkeley/p/C3x88lPP8wb/ (last visited Feb. 25, 2024).
[2] See Goss, supra note 1; see also @bearsforpalestine Instagram, https://www.instagram.com/p/C3ytamHJyIg/?hl=en&img_index=1 (last visited Feb. 25, 2024).
[3] See Salvador Hernandez, Pro-Palestinian protesters shut down event organized by Jewish student groups at UC Berkeley, Los Angeles Times, (Feb. 27, 2024 4:55 PM) https://www.latimes.com/california/story/2024-02-27/pro-palestinian-protesters-shut-down-event-organized-by-jewish-students-at-uc-berkeley.
[4] See Nanette Asimov, Jewish group asks Dept. of Justice, Alameda DA to investigate UC Berkeley protest, San Francisco Chronicle (last updated March 1, 2024 6:30 PM), https://www.sfchronicle.com/bayarea/article/jewish-group-asks-us-doj-alameda-d-a-18698769.php; see also Aaron Bandler, UC Berkeley Jewish Student Says She Was Choked By Pro-Palestinian Protesters Who Shut Down Israeli Lecture, Jewish Journal (Feb. 27, 2024), https://jewishjournal.com/news/368623/jewish-student-says-she-was-choked-at-uc-berkeley-pro-palestinian-protest/.
[5] See Goss, supra note 1.
[6] See Hernandez, supra note 3.
[7] U.S. Const. amend I.
[8] See Frederick Schauer, Costs and Challenges of the Hostile Audience, 94 Notre Dame L. Rev. 1671, 1672 (2019).
[9] See Edwards v. South Carolina, 372 U.S. 229 (1963); Cox v. Louisiana, 379 U.S. 536 (1965);
Gregory v. City of Chicago, 394 U.S. 111 (1969).
[10] See Cox v. Louisiana, 379 U.S., at 551.
[11] See Bible Believers v. Wayne Cnty., Mich., 805 F.3d 228, 252 (6th Cir. 2015).
[12] See Cheryl A. Leanza, Heckler's Veto Case Law As A Resource for Democratic Discourse, 35 Hofstra L. Rev. 1305, 1306 (2007); see also Schauer, supra note 8, at 1693.
[13] See Schauer, supra note 8, at 1688-89.
[14] See id. at 1865.
[15] See id.
[16] See id.
[17] See Ellen Parker, Implementation of the UK Terrorism Act of 2006 - the Relationship Between Counterterrorism Law, Free Speech, and the Muslim Community in the United Kingdom Versus the United States, 21 Emory Int’l L. Rev. 711, 739-45 (2007).
[18] See Human Rights Act, 1998, Introduction (UK).
[19] Id., c. 42, Sch. 1, P. I, Art. 10.1 (UK).
[20] See Id. 10.2
[21] Public Order Act 1986, c. 64 § 12 (UK).
[22] See Id. § 13.
[23] See London EDL marches stopped by government ban, Bbc (Oct. 25, 2012), https://www.bbc.com/news/uk-england-london-20084304; see also Megan Specia, Sunak Clashes With Police Chief Over Planned Pro-Palestinian March, NY Times (Nov. 8, 2023), https://www.nytimes.com/2023/11/08/world/middleeast/rishi-sunak-palestinian-protest-london.html.
[24] See Supra text accompanying notes 17-23.
[25] See Schauer, supra note 8, at 1688.
This is a student blog post and in no way represents the views of the Fordham International Law Journal.