Law Schools

'Legal Experts' Need To Stop Deliberately Misleading People About The First Amendment

The rampant misuse of 'heckler's veto' needs to stop.

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We don’t like school!

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.

 

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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.

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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. [UPDATE: Speaking of “breathless accounts,” I’ve heard from witnesses to the Yale event that recently made headlines that the WSJ account of “shouting down” is wildly exaggerated. Which tracks with this observation.]

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

HeadshotJoe 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.

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