The Right to Defy Criminal Demands: The Heckler’s Veto

A rough draft has been completed. You have the right to resist criminal demandsThis article was very interesting and so I decided I would serialize it. Since there is still time to make changes, I would love to get your feedback and suggestions. Here you can find previous posts and any new posts.

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It is generally a crime—disturbing the peace or disorderly conduct—to engage in offensive behavior “tending reasonably to arouse alarm, anger, or resentment in others” in public. In order to avoid a fight, police officers are generally able to command people to cease such conduct.

This doctrine is known as the “fighting word” doctrine. It allows individuals to be penalized for insults to their personal safety that could lead to fighting. Famously, the Court said that such “epithets” were not permitted. [and]Individual abuse is constitutionally protected because it “tends incite an immediate violation of the peace,” and “are not essential part of any exhibition of ideas and are so little social value as steps to truth that any benefit that they might entail is clearly outweighed and outweighed by the public interest in order or morality.”

But the logic of the disturbing-the-peace theory could also apply to any speech that people find offensive enough to threaten a fight over, including political or religious speech that doesn’t include personal insults—for instance, sharp criticisms of Islam at an Arab International Festival, which led to audience members “throwing plastic bottles and other debris.” This in turn sometimes leads police officers to order the speakers to stop, on the theory that “you are a danger to public safety right now”: “your conduct especially is causing this disturbance and it is a direct threat to the safety of everyone here”; “part of the reason they throw this stuff … is that you tell them stuff that enrages them.” If you do not leave, we will cite your for disorderly conduct.”

However, courts generally reject this theory because it would incorrectly apply a “heckler’s veto”.

[P]As an option to dealing with a lawless crowd offended at a speaker’s words, olice cannot penalize a peaceful speaker. The First Amendment specifically protects the right to “peaceably assemble and petition the Government to a redress for grievances.” Therefore, it is possible that the expression of opinions which are not acceptable to most listeners might “necessitate” police protection. … [T]It is important to remember that the natural order in law enforcement and crime mitigation does not need to be upended because it’s easier to do so against people who are hostile to the speaker than to the individual breaking the law.[1]

If the speaker chooses to exercise the constitutional right of freedom of speech at his/her own risk, it is possible to do so without fearing retribution by the state. The speaker is not the one who threatens to break the peace or violate the law.” At least, that’s unless the police are overpowered by hostile crowds. Even if the threats of the hecklers are made, the speaker can defy them. This could lead to fights and more protection for the police.

The reason for this protection does not stem from the individual speaker’s rights to free speech but from the desire to protect future speakers.

You can see that law enforcement is required principally to protect legal speakers, not law-breakers. It would be possible to grant a heckler’s right of veto under extreme circumstances if a different rule was in place. In fact, it would encourage hecklers to act. ReallyRowdy because they could silence the person who is causing them to row.

Here we see what is perhaps the most forceful form of the right of defiance—a right secured as a constitutional matter, as a facet of the First Amendment, rather than just as a common-law right in the negligence and nuisance cases.

[1] Bible Believers v. Wayne County, 805 F.3d 228, 250–51 (6th Cir. 2015) (en banc).