BY HANK REICHMAN

The so-called “heckler’s veto” is much in the higher ed news these days, with Inside Higher Ed this week running a piece, “Shouting Down Speakers Who Offend,” focusing on incidents at SUNY Albany, Stanford, and San Francisco State Universities. The Stanford incident has prompted two prior posts to this blog (here and here). These recent incidents recall similar cases during the Trump years involving speakers like the notorious Milo Yiannopoulos, Ann Coulter, and Ben Shapiro. I wrote about those cases in a series of lengthy blog posts about campus speakers (here, here, here, and here), which I later condensed and revised as a chapter, “Are Invited Speakers Entitled to a Platform?,” in my 2019 book The Future of Academic Freedom. One section of that chapter, “Thoughts on the ‘Heckler’s Veto'” (pp. 180-86), seems newly relevant so I thought it might be useful to post it below, without its footnotes. I think it holds up well, but today I would add one important point: to caution students thinking about heckling that sometimes a speaker actually wants to be shouted down, as that can be a road to much greater attention and even misplaced sympathy. 

Thoughts on the “Heckler’s Veto”

In the strict legal sense, a heckler’s veto occurs when a speaker’s right is curtailed or restricted by the government in order to prevent the possibility of a violent reaction by hecklers or other protesters. In common parlance, the term is used to describe situations where hecklers or demonstrators themselves silence a speaker without legal intervention.

The courts have in the past upheld the right of authorities to shut down speech out of concern for safety. In Feiner v. New York, the Supreme Court in 1951 held that police officers acted within their power in arresting a speaker if the arrest was “motivated solely by a proper concern for the preservation of order and protection of the general welfare.” But in Hill v. Colorado, the Supreme Court in 2000 found that the government cannot grant power to a private actor, the heckler, to unilaterally silence a speaker because of a concern for the violent reaction by the heckler.

Outside of the legal arena the term has come to mean that the heckler creates the veto and suppresses the speech by  creating the violent reaction or the threat of violent reaction. The end result may be that the individual who is potentially being heckled will self-censor for fear of negative reaction. Alternately, the heckling will be so effective as to prevent any meaningful communication from the speaker to the audience. The late Nat Hentoff wrote that “First Amendment law is clear that everyone has the right to picket a speaker, and to go inside the 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. That’s called the ‘heckler’s veto.’” The great First Amendment scholar Thomas Emerson wrote, “Up to a point heckling or other interruption of the speaker may be part of the dialogue. But conduct that obstructs or seriously impedes the utterance of another, even though verbal in form, cannot be classified as expression. Rather it is the equivalent of sheer noise. It has the same effect, in preventing or disrupting communication, as acts of physical force.”

Permitting speakers to be shouted down, allowing demonstrators to block access to speeches, or failing to provide sufficient security to ensure that a speech will be delivered—all forms of the heckler’s veto—amount to impermissible violations of the principles of free expression and, in public institutions, of the protections guaranteed by the First Amendment. But, one might ask, what about the expressive rights of those who heckle?

In a discussion of free speech on campus, Greg Lukianoff, executive director of the Foundation for Individual Rights in Education, said, “Universities should be a chaotic paradise. It should be an exciting, challenging, sometimes difficult  place but never all that quiet.” Historian of student movements Angus Johnston went further: “I think it’s crucial that free speech not just be an idea, and it not just be something that is safe and civil. There has to be space for speech that is not only rowdy, and disruptive, and aggressive, and obnoxious, but also speech that is attempting to change things.” In some ways both sides in the recent incidents have embodied aspects of this rough-and-tumble vision of free speech. Coulter and Yiannopoulos are nothing if not obnoxious, but it is equally true that their campus critics can be rowdy and disruptive, even when they eschew overt efforts to silence opponents. And if hecklers must be deprived of their veto, should they not still retain their right to heckle? Surely, for example, a woman who laughed out loud at Attorney General Jeff Sessions’s confirmation hearing could be considered a heckler of sorts. But did her outburst warrant the jail sentence she initially received?

When do impassioned disruption and uncivil dialogue cross the line into silencing behavior? Are a few boos or jeers sufficient to constitute a heckler’s veto? And does it matter whether the speaker being heckled is a powerful figure with a near-guaranteed platform or someone less well known, struggling to promote novel or unpopular ideas? Of course,  academics should promote reasoned discourse and polite consideration of the rights of others. But protest that fails to disrupt is hardly protest at all. Is there a point at which denying the heckler’s veto simply creates what David Pozen calls “the provocateur’s privilege?” And the extraordinary amounts spent by the Berkeley administration to ensure Shapiro’s safety and the success of the abortive Milo free speech week raise the question whether “the parameters of free speech are set not just by the limits of public tolerance but also by the practical budgetary concerns of ensuring a safe forum.” In May 2018, for instance, the University of California, Los Angeles, announced that it would cover only $100,000 in total security costs each academic year for speakers who are not invited by a student group.

One celebrated case involving a heckler’s veto was that of the so-called Irvine 11. On February 8, 2010, Israeli  ambassador to the United States Michael Oren spoke at the University of California, Irvine. Protesters began to disrupt the event by having a series of students yell so that the ambassador could not be heard. After the first disruptions, the audience was admonished that such behavior was not acceptable and that those who engaged in such conduct would be arrested and face student disciplinary proceedings. Still, eleven individuals rose and shouted so that the ambassador could not be heard. At one point he left the stage, but he was persuaded to return and deliver his address. All eleven were arrested and ultimately convicted of criminal conduct.

First Amendment scholar Erwin Chemerinsky, then UC Irvine law dean and current dean of the law school at UC  Berkeley, wrote this about the incident:

A person who comes into my classroom and shouts so that I cannot teach surely can be punished without offending the First Amendment. Likewise, those who yelled to keep the ambassador from being heard were not engaged in constitutionally protected behavior.

Freedom of speech, on campuses and elsewhere, is rendered meaningless if speakers can be shouted down by those who disagree. The law is well established that the government can act to prevent a heckler’s veto—to prevent the reaction of the audience from silencing the speaker. There is simply no First Amendment right to go into an auditorium and prevent a speaker from being heard, no matter who the speaker is or how strongly one disagrees with his or her message.

The remedy for those who disagreed with the ambassador was to engage in speech of their own, but in a way that was not disruptive. They could have handed out leaflets, stood with picket signs, spoken during the question-and-answer session, held a demonstration elsewhere on campus or invited their own speakers.

But Chemerinsky also spoke out against prosecuting the students:

The students violated California law, which makes it a misdemeanor offense to disrupt a public meeting. . . . But the fact that conduct violates a law does not mean that it should be prosecuted. Prosecutors, state and federal, constantly make choices about which crimes to prosecute. . . .

Although campus demonstrations are common, rarely have they led to criminal charges or convictions. Unless there is harm to persons or property—or a serious threat of this—district attorneys are almost always content to leave discipline to school authorities. . . . No one was hurt, and no property was damaged. After the disruptive students were escorted away, Ambassador Oren finished his speech. The students acted wrongly, and they were punished by the campus; there was no need for anything more.

During the Vietnam War in the 1960s, UN ambassador Arthur Goldberg came to Berkeley to debate the war at a mass meeting of over ten thousand. Chairing the meeting was the late Reginald Zelnik, my mentor and an early faculty  supporter of the Free Speech Movement. To put it mildly, Goldberg’s defense of the war was not popular with Berkeley  students, and his remarks were repeatedly interrupted by catcalls and jeers. Zelnik—whose prestige among campus radicals was high—repeatedly silenced the crowd, allowing the discussion to proceed to its conclusion, after which a straw vote was held and those attending overwhelmingly, and even more powerfully because they had heard him out, rejected Goldberg’s position.

I thought a lot about this story when on two different occasions I was thrust into a position not unlike that of my late mentor. In 2009, Mark Rudd, my college classmate, leader of the 1968 student rebellion at Columbia University and participant in the notorious Weather Underground, published a memoir, Underground, in which he advocated nonviolence and was self-critical of his past actions. As a Columbia student Rudd had disrupted a talk by the director of the New York City selective service office by shoving a cream pie in his face. The speech went on, but the point was  made. Heckler’s veto? Learning that Rudd would be in San Francisco to promote his book, I invited him to speak at my university nearby. A local public television station agreed to film the talk. But when we arrived, among those who packed the room to overflow were several retired police officers convinced that Rudd was responsible for the death of a fellow officer during the 1970s (Rudd denies it, and no one was ever charged in the case), as well as one Larry Grathwohl, the only law enforcement agent to successfully infiltrate the Weather Underground.

I was chairing the event and soon had my work cut out for me. The shouted curses and insults from the officers’ group commenced even before Rudd began his talk. I repeatedly pleaded for calm, urging the protesters to allow Rudd to speak and promising they could ask questions or make brief statements later. One of the ex-officers used a handheld camcorder to record not only Rudd’s remarks but also reactions from the largely student audience, which several of those attending later told me intimidated them from speaking during the question period. However, because we had agreed to allow filming of the event, I could not, I believed, ask the cameraman to stop without also terminating the TV station’s efforts.

There was quite a ruckus, and soon campus police officers arrived. Although they later confessed to me their own  sympathies for the hecklers, they offered to remove and if necessary arrest the disrupters. It would have been within our rights under the law governing the heckler’s veto to do that, but I was certain such action would mark a defeat for free speech, so I declined the offer. The officers stood by as tensions waxed and waned and the program proceeded. Those in attendance saw history come to life, as the passions of the past were reenacted. In the end, Rudd did something masterful. He had begun with a reading of excerpts from his memoir and proceeded to respond to questions, both friendly and hostile. Then, after reading a passage from his book describing Grathwohl’s treachery, Rudd invited Grathwohl himself to the stage to offer a response. Grathwohl too had his say, the audience heard him out, and the event concluded successfully.

Some time later I had occasion to direct our university’s short-lived program in Jewish studies. Although the program was to be largely secular and represent multiple views of Judaism and the Jewish community, it was clear that we could  hardly turn down an offer to speak on campus from the Israeli consul general in San Francisco. This was around the time of the Irvine events, and I was concerned about possible disruption, even violence. So I met with leaders of the Muslim Student Association (MSA) and invited them to attend the talk with assurance that there would be a question period during which they could freely speak.

The results were positive. The MSA members ended up composing almost half the audience. They were respectful and listened attentively, offering only the mildest of potentially disruptive comments. Encouraged, the consul general extended his question period and engaged in a fascinating dialogue with the students that went on for nearly an hour. Was anyone’s mind changed? I doubt it, but this was precisely the kind of reasoned discussion of a heated issue that universities—and perhaps only universities—can best facilitate. A few weeks later the consul general spoke at nearby San José State University, where unfortunately no one had worked in advance to ensure a successful and safe event. He was compelled to leave the stage midspeech. “I wish you’d been at San José to help,” he later told me.

These incidents from my own career may illustrate some of the complexities associated with the current debate over  outside speakers and the heckler’s veto. In the first case, it was not left-wing students who sought to silence a right-wing speaker; it was the opposite. And in the second example, it is clear that not all protesting students are disrespectful. Both incidents demonstrate that dialogue is indeed possible, that speakers and protesters can both be accommodated, although sometimes it can be difficult.

Contributing editor Hank Reichman is professor emeritus of history at California State University, East Bay; former AAUP vice-president and president of the AAUP Foundation; and from 2012-2021 Chair of AAUP’s Committee A on Academic Freedom and Tenure. His book, The Future of Academic Freedom, based in part on posts to this blog, was published in 2019.  His Understanding Academic Freedom was published in October, 2021.