'Legal Experts' Need To Stop Deliberately Misleading People About The First Amendment - Above the LawAbove the Law
Category: News & Politics
Via: evilgenius • 2 years ago • 17 commentsBy: Joe Patrice (Above the Law)
In response to a few recent seeded articles where 1st Amendment arguments were incorrectly applied.
S E E D E D C O N T E N T
The rampant misuse of 'heckler's veto' needs to stop.
ByJoe PatriceonMarch 23, 2022 at 11:02 AMMarch 23, 2022 at 10:57 AM 
Oh no! The dreaded heckle veto!
Being heckled and being the victim of the legal concept of the "heckler's veto" are two completely different things.
If someone botched this issue on a bar exam we wouldn't let them practice law. So how are we letting people who ostensibly teach constitutional law get away with pumping out disingenuously bad legal takes to pollute the public's already horrid legal literacy?
Perhaps it's more fair to say I hope these takes are disingenuous and these people really know better. But whether they're using their legal credentials to mislead the public for their own partisan aims or they're genuinely incapable of grasping basic constitutional law, it seems like something we should care about.
Because whenever some legal expert takes to the media to bemoan the "heckler's veto" they genuinely earn this clip.
The phrase "heckler's veto" is pretty straightforward. It exists when cops use the real or hypothetical risk of heckler violence to charge the original speaker for either inciting the response or, more often, to stop that speaker from speaking in the first place.
The Supreme Court first used the term in Brown v. Louisiana , 383 U.S. 131 (1966) (link courtesy of Westlaw). In that case, civil rights protesters staged a library sit in. In a footnote, the majority noted the risk of a "heckler's veto" where law enforcement would charge someone with disturbing the peace based solely on the exercise of the speaker's First Amendment rights.
Not only is a "heckler's veto" not the case of "someone heckled me," in most cases it requires that no heckling actually occur since the whole point is that the cops use the risk of potential future violence as a prior restraint.
Transforming a "heckler's veto" into mere "heckling" does as much violence to the phrase as declaring a "hot dog" only means a "flaming poodle."
We went through all this already with human issue-misser Jonathan Turley, who wrote a long tirade about the "heckler's veto" while managing to bungle the concept like it was his own work. Turley complained that a poll showed that students feel like it's fine to protest against university speakers they disagree with — which it is! But Turley branded this a "heckler's veto," effectively lobotomizing the remaining semblance of his knowledge of the Constitution.
Unfortunately, Turley isn't alone in this use and abuse of this legal concept. In a Wall Street Journal op-ed yesterday, Ilya Shapiro, of "lesser Black women" fame, decried the mood during his recent trip to Hastings:
You'd think that law students should have a particular appreciation for spirited and open engagement with provocative ideas. They've chosen a career that centers on argument and persuasion.
But alas a heckler's veto prevailed.
No, it didn't. Because police didn't charge him with a crime for showing up. It's not a "heckler's veto" at all. Now, you could say the tactics of those protesters were unprofessional or counterproductive if you want. That's an entirely fair debate. But stop pretending the protesters triggered a very specific legal concept when they didn't .
But they're going to keep this misconception going because conservatives want to bolt "heckler's veto" onto their distaste for protesters. Because there's actually a legal legacy disfavoring the heckler's veto when there's exactly zilch legal legacy around "protesters should let me give my speech uninterrupted."
Why take it to this level? Shapiro's description of his Hastings event certainly makes it sound like the protesters crossed the line and committed real infractions. There would be no need to appeal to protesters as "anti-free speech" based on his description — there's no free speech defense to assaulting someone after all.
Could it be that conservatives want to recast protesting as a heckler's veto because they know that, despite their breathless accounts, these student protests almost never result in protesters actually committing any crimes? Hmmmmm.
When protests aren't really crossing the line, just change the line.
As we put it in the earlier Turley piece:
William O. Douglas wrote in Terminiello v. Chicago — a case much closer to a heckler's veto — that speech achieves "its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger." Turley argues that free speech achieves its high purpose when students are docile bullshit sponges for whatever crank comes along.
But, hey, we're probably due for one of the scores of ABA non-qualified tweebs now sitting on the the federal bench to jam this reimagined interpretation into a decision further cluttering First Amendment law with the Con Law equivalent of replacing "proximate cause" with "hey, you were in the area buddy!"
Mob Rule and Cancel Culture at Hastings Law School [Wall Street Journal]
Earlier : Shut Up And Stop Heckle Vetoing Me, Law School Prof Yells At Clouds
Banning Law School Protests To Protect Free Speech Marks New Orwellian Heights
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you're interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
Topics
Free Speech, Heckler's Veto, Ilya Shapiro, Jonathan Turley, Law Schools
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It's about time we confront the intellectually dishonest.
I didn't ignore this, it is just kinda deep. Haha
I may have to read this a couple of times.
I'm with you on that Elder.
Same here because I know I'm not a constitutional scholar
I call them on it...
Constitutional issues are a little more difficult than many believe them to be.
It's so much easier to believe what comes from "the bubble" as opposed to learning.
What a disingenuous article, neither Shapiro nor Turley was making a legal claim. In fact, Turley (which this far left blog completely ignored) "We have seen how in universities (including state schools) this can turn into a type of “heckler’s veto” where speeches are cancelled in advance or terminated suddenly due to the disruption of protesters." It simple shorthand for when the listeners are allowed to stop speech.
It's no surprise this far left blog attacks people for criticizing progressives brown shirt tactics to disrupt speech it disagrees with. It's actually published cheering on the snowflakes/future lawyers to silence people who's words wound their poor little brains.
They both used 1st Amendment BS in the article titles and idiots in comment sections across the internet regurgitate it ad nauseum.
Turley is using the wrong argument to push his far right agenda about the left and education. Talk about disingenuous.
I guess compared to the bullshit propaganda Turley puts out everything looks far left...
Although I really know nothing about what is meant by "Hecklers' Veto" I've often wondered why heckling to the extent of preventing a speaker from speaking, or from being heard, isn't considered contravening the First Amendment. Those who don't agree with what a speaker is saying can just get up and walk out, or can wait for a following question period and question the speaker or state their case there, or write an article about their feelings about the speech in an opinion article or whatever. When I was editor of my university newspaper I would never have censored such an article - because that is free speech. Next thing I think might happen in the USA with people being allowed to carry weapons without a permit is that it might become justifiable to shoot a speaker if one disagrees with them, and say it was an exercise of THEIR freedom of speech or expression.
It is or at least used to be but only fools believe heckling or shouting down a speaker is protected free speech. I'm old school I want to hear what people have to say then I can decide whether I agree or disagree and why. I don't like loudmouth jackasses deciding what I should be able to hear and what I must be protected from. Name just one time in history where they had censorship and it's looked back upon as a good thing, there is none it's always bad.
Hecklers' Veto at it's core is about the rights of someone to criticize a government worker (in the original case a police officer) in his/her job vs the public safety. Is the 'heckler' creating an unsafe environment or just pissing a person in authority off?
Because the 1st Amendment applies to the US Government. Not students in an auditorium nor a private speaker. It's not a matter of law, but one of decorum. Were the students to be penalized for protesting then they, the students, may have a 1st Amendment argument against the University as schools are considered representatives of government.
That depends on where they're protesting. Outside the Venue a protest is protected free speech but inside the Venue if they're heckling or shouting down a scheduled speaker it is they who are infringing on the speakers right to free speech and they're just disturbing the peace and may be subject to ejection or arrest. Even on the street you do not have the right to confrontation, let's say there's a street preacher giving a sermon on the corner you can be arrested for disturbing the peace for heckling or shouting down the preacher. What you can do is go somewhere else and give a contrary speech and say whatever you want.
Perhaps, but we aren't talking about that in the article -
...but inside the Venue if they're heckling or shouting down a scheduled speaker it is they who are infringing on the speakers right to free speech..
No that's not how free speech works. The students are being rude, yes, but until they create a hazard to body or property they have the same rights as the person they are trying to "cancel".
This is the whole problem - a mash of ideas being misused under the Heckler's Veto argument. Disturbing the peace, blocking a sidewalk or creating an public hazard (i.e. hindering a LEO/Firefigher in their duty) are all different legal arguments. They are all valid and they may coincide with one another as EXCEPTIONS to free speech.
I'm not standing up for the students. It's about this bastardization of language and logic that drives me nuts. And people like Turley & Shapiro, who are supposed to know the difference, do it on purpose to rile up the rubes to push an agenda. Even if that agenda is only clicks.
Wrong the speaker and the host who may or may not be paying him and the venue (rented or not) in which the speaker is speaking belongs solely to the speaker and host and they alone have the right to free speech within that forum. It really is a matter of intent, talking loudly in a movie theater is rude, screaming over a speaker to prevent his speech from being heard is stifling free speech and disturbing the peace.
According the ACLU the law isn't completely settled unless the students are physically impeding the speaker. The SCOTUS has typically found the use of hecklers' vetos inconsistent with the 1st Amendment. So unless the students are starting fights they also have a protected right to protest speech they find offensive.
As you have pointed out it's a matter of rudeness and lack of decorum. Personally I find that to be very disturbing because it's just another aspect of the decline of maturity and dignity. It makes me think of where humanity is heading....