NYU Law School Denounces 'Heckler's Veto' Despite Having No Clue What 'Heckler's Veto' Even Means

Et tu, NYU?

I need a break…A former Israeli politician appeared at NYU Law last week and faced a couple minutes worth of heckling over her stance on the occupation of Palestine. Then they left to continue their dissent in ways that didn’t disrupt her remarks. In any sane era, this would’ve been hailed a successful all around exercise of free speech. The speaker got a forum, the administration allowed dissent to be meaningfully registered before invoking time, place, manner restrictions that forced it to a new location, and the protesters complied with those rules.

But this is not a sane era, so the school decided to assert itself as though it “heroically” silenced the protest, as if angling to preemptively avoid becoming the latest fodder for Tucker Carlson’s outrage.

Sucks, if only they’d waited a couple more days they could’ve been free and clear…

“NYU is troubled and disappointed by those who sought to disrupt the talk Michal Cotler-Wunsh was invited to give yesterday at the law school,” NYU spokesman John Beckman wrote in a statement dated April 23. “Members of the community who disagree with invited speakers’ views have a right to dissent in accordance with University rules, but we reject efforts to interfere with a speaker’s right to communicate and an audience’s right to hear a speaker.”

Being “troubled and disappointed” with students exercising their free speech rights is not the flex the law school might think it is.

What is troubling and disappointing is the school’s embrace of the goalpost-shifting mentality common among the law schools embroiled in these tempest in a teapot “scandals.” NYU’s rules state that “While dissent may be vigorous, it must not substantially interfere with a speaker’s ability to communicate, regardless of content, with an audience’s ability to hear and see a speaker.” Which this did not. Had the protesters refused to comply with administration’s time, place, and manner regulations, this might have violated this rule, but nothing about what happened breached this rule as written.

But that’s the thing with these schools prostrating themselves to appease the  outrage machine behind the “free speech crisis” rhetoric. Complying with rules as written isn’t good enough. Schools want to put forward the appearance of respecting core principles of free speech while running a parallel pressure campaign that blames the students for meeting the letter of the law. Or worse, law professors suggesting that the school punish students anyway even if they complied with the rules.

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And no attempt to front like a proper strong arm against dissent would be complete without the classic gaffe…

[Assistant dean Megan] McDermott also reminded the audience that it was a violation of NYU principles and rules to try to exercise a “heckler’s veto,” according to Beckman, and Cotler-Wunsh was then able to present her talk for an hour as scheduled.

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As you all doubtless know, this is not what a “heckler’s veto” means. The term, most famously articulated in the context of the Civil Rights movement, describes the scenario where authorities impose a prior restraint on speech citing the risk of violent protest. Segregationists deployed this reasoning to shut down peaceful marches by telling Black folks that it was “for their protection.” This was uniquely powerful against a non-violent protest movement that generated a lot of its persuasive impact from putting the violence of white people reacting to the event on national display. Technically, it doesn’t have to be a prior restraint to the extent that it’s a heckler’s veto if law enforcement punishes or otherwise shuts down the speaker mid-event, but that’s rarer since, as a practical matter, it would fail to capture the most potent advantage of the action for an authority figure trying to silence speech. But arresting protesters for “incitement” based on the unruly behavior of bystanders would meet the definition too.

But the common thread among all of these scenarios is that they do not ban heckling or protest. Indeed, adopting such a definition would have a catastrophic impact on speech in general. It would funnel dissent into the smallest, least noticeable corners while amplifying the power of propagandists to deliver messages without any observable opposition.

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Hecklers can be annoying. In some cases they’re even wrong, but election deniers and anti-vaxxers still get their 15 seconds of infamy. Free speech encompasses the right to heckle within reasonable time, place, and manner restrictions because dissenters have the right to be observed lodging that dissent in the same room. You don’t have to like the heckling. Protecting speech is usually about protecting stuff you don’t actually like to hear. But society can’t foreclose the option to speak out at all by vilifying hecklers. That road leads to viewpoints getting marginalized out of existence.

So a heckler’s veto can mean a lot of things in the law, but it does not, under any circumstances, mean “freedom from being heckled.” Which is a key distinction that I had to learn for my First Amendment class final.

At NYU.

NYU Law Administrator Reportedly Squashes Student Protest of Zionist Speaker [Law.com]


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.