Unpopular Speech and the Hecklers Veto with a special guest appearance by Social Media ROBERT HIGGASON Senior Assistant City Attorney CITY OF HOUSTON Presented to OLSON & OLSON LLPS 15TH ANNUAL LOCAL GOVERNMENT SEMINAR Stafford, Texas
January 31, 2019 Foundational Values Freedom of Speech is a foundational value that the First Amendment protects against governmental intrusion. Congress shall make no law . . . abridging the freedom of speech . . . . This protection against government restriction on speech applies to states and to local government through the 14th Amendment. Unpopular Speech?
Respond to offensive, objectionable, or otherwise unpopular speech with more speech. Marketplace of Ideas Marketplace of Ideas Marketplace of Ideas Marketplace of Ideas [T]he ultimate good desired is better reached by free trade
in ideasthat the best test of truth is the power of the thought to get itself accepted in the competition of the market . . . . That at any rate is the theory of our Constitution. . . . [W]e should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting). Silence!
But the government is not the only actor that can inhibit speech, and private restriction on speech does not violate constitutional protections. This is more obviously so when those who would inhibit speech are acting as individuals or as a group of protestors. Rather than participate in the marketplace of ideas, many create noise to drown out unwanted speech. Silence! Such protestors attempt to silence speech and remove it from the
marketplaceto destroy competing ideas. An objectors attempt to use this de facto power to cancel objectionable speech has become known as the hecklers veto. Recent Examples of the Hecklers Veto 1. Jim Webb declined to accept an award from his alma mater because of protests over comments in a 38-year-old magazine article. In March 2017, former U. S. Senator Jim Webb was to honored by his alma mater, the U.S. Naval Academy, with the Distinguished Graduate Award. However, his selection for the award was met with protests, in response to which he declined to accept the award. In his words, from a press release,
has been protested by a small but vociferous group of women graduates based on a magazine article that I wrote 38 years ago. In a 1979 article, he wrote that women should not be in combat. Recent Examples of the Hecklers Veto 2. Condoleezza Rice withdrew from Rutgers University commencement after protests. Former Secretary of State Condoleezza had been invited to give the commencement address at Rutgers University on May 18, 2014. Some students and faculty members protested that choice because they did not agree with the Iraq war during the Bush administration. The university did
not rescind the invitation, but Ms. Rice decided to withdraw, releasing a statement that Commencement should be a time of joyous celebration for the graduates and their families, the statement said. Rutgers invitation to me to speak has become a distraction for the university community at this very special time. Recent Examples of the Hecklers Veto 3. Rioters at UC Berkeley forced cancellation of Milo Yiannopolous speech. On February 21, 2017, Milo Yiannopoulous was scheduled to speak at the University of California, Bekeley, as the last stop of a tour aimed at defying
what he calls an epidemic of political correctness on college campuses. But, as reported by a San Francisco local news outlet, his speech did not take place: As the gathered crowd [of protesters] got more agitated, masked black bloc activists began hurling projectiles including bricks, lit fireworks and rocks at the building and police. Some used police barriers as battering rams to attack the doors of the venue, breaching at least one of the doors and entering the venue on the first floor. (contd)
Recent Examples of the Hecklers Veto (3. Berkeley/Yiannopolous, contd) In addition to fireworks being thrown up onto the second-floor balcony, fires were lit outside the venue, including one that engulfed a gas-powered portable floodlight. The area on Upper Sproul Plaza grew thick with smoke, and later tear gas, as the protest intensified. At about 6:20 p.m., UC campus police announced that the event had been cancelled. Officers ordered the crowd to disperse, calling it an unlawful assembly. From this report, it is unclear whether the event was cancelled by the
university or by Yiannopolous, but it is clear the cancellation was forced by the violent actions of those who did not like his views. Recent Examples of the Hecklers Veto 4. After threats of violence, UC Berkeley cancelled Ann Coulters speech. Students who belonged to the Young Americas Foundation at the University of California, Berkeley, invited Ann Coulter to speak on April 27, 2017. However, because there were threats of violence, the university cancelled the event. The YAF sued, claiming that the school applies its High-Profile Speaker
Policy unfairly in such a way that it prevent[s] speakers with certain viewpoints. Recent Examples of the Hecklers Veto (4. Berkeley/Coulter, contd) The High-Profile Speaker Policy required that events be held during normal class hours, in locations that were not convenient for the majority of Berkeley students. Groups were also subject to exorbitant security fees for certain students. The complaint also alleges that Berkeley offered to have Coulter speak during the dead week between the end of classes and examinations where
many students would be off campus and unable to attend. Christine Rousselle, Berkeley Sued Over Ann Coulter Speech Cancellation, Townhall (April 242, 2017) https://townhall.com/tipsheet/christinerousselle/2017/04/24/breaking-berkeley-sued-over-ann-coulter-speechn2317492 (last accessed April 09, 2018) Recent Examples of the Hecklers Veto 5. University of Alabama imposed such high security fees that the Yiannopoulus speech was almost cancelled, but then it dropped the fee. The College Republicans at the University of Alabama sponsored an appearance by Milo Yiannopolous on October 10, 2016.
The initial estimate of security costs was $800 - $1,200, but after protests, the costs were increased to $4,600 - $4,800. The costs later rose to almost $7,000. After the College Republicans challenged the increased security, the university eliminated the fee entirely. Recent Examples of the Hecklers Veto 6. Parade organizers cancelled the annual Rose Festival Parade in Portland, Oregon in 2017 because of threats. Since 2007, a coalition of local businesses and community organizations in Portland, Oregon, has held a Rose Festival Parade on 82nd Avenue to help
improve the perception of that area of the city. What would have been the 11th annual parade, scheduled for Saturday, April 29, 2017, was cancelled following an anonymous email threat to disrupt the event because members of the Multnomah County Republican Party were to be marching in the parades 67th spot. That email is copied in full below (bold print added): Recent Examples of the Hecklers Veto (6. Portland/Rose Festival Parade, contd) This is the email the parade organizers received: -----Original Message----From: [email protected] [mailto:[email protected]]
Sent: Saturday, April 22, 2017 7:29 PM Subject: Don't make us shutdown the parade Importance: High Greetings, Trump supporters and 3% militia are encouraging people to bring signs that bring hateful rhetoric to the parade and appears you allowed them to register and have a place in the march! Recent Examples of the Hecklers Veto (6. Portland/Rose Festival Parade, contd) You have two options:
1. Let them march (Here is their event page https://www.facebook.com/events/1863379970571888/) 2. Cancel their registration and ensure they do not march Recent Examples of the Hecklers Veto (6. Portland/Rose Festival Parade, contd) If you choose option 1 then we will have two hundred or more people rush into the parade into the middle and drag and push those people out as we will not give one inch to groups who espouse hatred toward lgbt, immigrants, people of color or others. In case the message was not clear to you this is a sanctuary city and state and we will not allow
these people to spread their views in East Portland. You have seen how much power we have downtown and that the police cannot stop us from shutting down roads so please consider your decision wisely. Let us know your decision by tuesday by emailing back. We will also wheatpaste fliers across the march route naming sponsors and holding them accountable for backing an event with this type of rhetoric which may endanger future parades ability to get sponsors. We will also begin emailing groups who are participating in the march to inform them you are allowing a group of bigots to march in the parade. Recent Examples of the Hecklers Veto
(6. Portland/Rose Festival Parade, contd) This is non-negotiable we already have two events setup ourselves and we will have enough people tools and tactics to shut down a parade in fact this is a walk in the park for us: https://www.facebook.com/events/942770902532416/ https://www.facebook.com/events/1901987176708736/ We promise there will be no harm to anyone but we will shut this down and prevent them from marching using non-violent passive blocking of their movement. Recent Examples of the Hecklers Veto
(6. Portland/Rose Festival Parade, contd) IMPORTANT: This e-mail message is not intended to be binding or relied upon and, without limitation on the foregoing, shall not create, waive or modify any right, obligation or liability, or be construed to contain or be an electronic signature, to constitute a notice, approval, waiver or election, or to form, modify, amend or terminate any contract. The information contained in this message is confidential and is intended only for the named addressee(s). This message may be protected by the attorney/client privilege. If the reader of this message is not an intended recipient (or the individual responsible for the delivery of this message to an intended recipient), please be advised that any re-use, dissemination,
distribution or copying of this message is prohibited. If you have received this message in error, please reply to the sender that you have received the message in error and then delete it. Thank you. Recent Examples of the Hecklers Veto Notice that the explicit threat is to use two hundred or more [protesting] people to drag and push those [objectionable] people out. That is a threat to be taken seriously, despite the closing promise not to harm anyone. This was an extremely effective hecklers veto that came simply by way of
an anonymous email. The next two slides are screenshots the protesting organizations Facebook pages that were linked in the email. Recent Examples of the Hecklers Veto Recent Examples of the Hecklers Veto Government suppression of speech None of those incidents appeared to involve municipalities, yet they illustrate
some problems facing municipalities. Cities must exercise caution in responding to these situations or in passing regulatory ordinances: When a government official is complicit in suppressing protected speech, it undermines the 1st Amendment by silencing the very political discourse the Amendment is meant to protect. The Troubling Resurgence of the Hecklers Veto, FIRE: Foundation for Individual Rights in Education, Jan. 26, 2005, https://www.thefire.org/media-coverage/the-troubling-resurgence-of-the-hecklers-veto/ Municipal Involvement by Police Response
The term hecklers veto has been recognized in court opinions since at least 1966 in Brown v. State of Louisiana, 383 U.S. 131, 133 n.1 (1966), although the concept has deeper roots. The term hecklers veto is attributed to Professor Harry Kalven, Jr., of the University of Chicago Law School, in his book, The Negro and the First Amendment (Univ. of Chicago Press) (1966), based on lectures he delivered at the Ohio State Law Forum in April 1964. The 1951 case of Feiner v. New York, 340 U.S. 315 (1951), for example, provides a helpful introduction to the framework for analyzing the hecklers veto, even though that term was not used.
Municipal Involvement by Police Response a. Arresting the speaker Irving Feiner was convicted of disorderly conduct arising from his 1949 open-air address in the City of Syracuse, New York. During that address, the [t]he crowd was restless and there was some pushing, shoving and milling around. Feiner, 340 U.S. at 317. Feiner was speaking in a loud, high-pitched voice. He gave the impression that he was endeavoring to arouse the Negro people against the whites, urging that they rise up in arms and fight for equal rights. Id. The Supreme Court described the crowds response to the speaker, and the police response to the situation:
Municipal Involvement by Police Response The statements before such a mixed audience stirred up a little excitement. Some of the onlookers made remarks to the police about their inability to handle the crowd and at least one threatened violence if the police did not act. There were others who appeared to be favoring petitioner's arguments. Because of the feeling that existed in the crowd both for and against the speaker, the officers finally stepped in to prevent it from resulting in a fight. One of the officers approached the petitioner, not for the purpose of arresting him, but to get him to break up the crowd. He asked petitioner to get down off the box, but the latter refused to accede
to his request and continued talking. The officer waited for a minute and then demanded that he cease talking. Although the officer had thus twice requested petitioner to stop over the course of several minutes, petitioner not only ignored him but continued talking. During all this time, the crowd was pressing closer around petitioner and the officer. Finally, the officer told petitioner he was under arrest and ordered him to get down from the box, reaching up to grab him. Petitioner stepped down, announcing over the microphone that the law has arrived, and I suppose they will take over now. In all, the officer had asked petitioner to get down off the box three times over a space of four or five minutes. Petitioner had been speaking for over a half hour.
Id. at 317-18 (bold print added). Municipal Involvement by Police Response To review: Speakers statements on racial issues stirred up a little excitement At least one onlooker threatened violence if the police did not act Officers stepped in to prevent the excitement from resulting in a fight Officer asked speaker to get off the box Speaker refused and continued talking Officer waited a minute and then demanded that speaker cease talking Speaker ignored him and continued talking
Crowd was pressing closer around the speaker and the officer Officer arrested speaker Municipal Involvement by Police Response In condensed form: controversial statements protestors threaten violence police arrest speaker Municipal Involvement by Police Response To put it another way, with a little modification:
Unpopular speech Protest Speaker is silenced This is the hecklers veto. Municipal Involvement by Police Response The Supreme Court affirmed Feiners conviction for disorderly conduct, agreeing with the trial judge[s] . . . conclusion that the police officers were justified in taking action to prevent a breach of the peace. Id. at 319.
The majority opinion noted that Feiner was thus neither arrested nor convicted for the making or the content of his speech. Rather, it was the reaction which it actually engendered. Id. at 319-20. Municipal Involvement by Police Response In the first of two dissenting opinions in Feiner, Justice Black begins by characterizing Feiners speech as unpopular (a term that typically does not suggest a breach of the peace): The record before us convinces me that petitioner, a young college student, has been sentenced to the penitentiary
for the unpopular views he expressed on matters of public interest while lawfully making a street-corner speech in Syracuse, New York. Id. at 321-22 (Black, J., dissenting) (internal footnotes omitted; bold print added). Municipal Involvement by Police Response Justice Black went on to assert that the majoritys opinion approves what later came to be called the hecklers veto: Here petitioner was asked then told then commanded
to stop speaking, but a man making a lawful address is certainly not required to be silent merely because an officer directs it. . . . In my judgment, todays holding means that as a practical matter, minority speakers can be silenced in any city. Id. at 327-28 (bold print added). Municipal Involvement by Police Response b. Silencing the speaker by threat of arrest Police officers are sworn to protect the peace, and cities and states can prosecute offenders for breaches of the peace and disorderly conduct.
While the arrest of the speaker passed Supreme Court muster in Feiner in 1951, each speakers conduct and each official response must be evaluated on its own. And even the threat of an arrest can silence a speaker. Municipal Involvement by Police Response In Zachary, Louisiana, mid-November 2006, street preacher John T. Netherland positioned himself in a grassy public easement between the street and the parking lot of a restaurant, the Sidelines Grill, and he began: . . . quoting Biblical scripture in a loud voice, including I Corinthians 5:9, saying Know ye not that the unrighteous
shall not inherit the Kingdom of God? Neither fornicators, idolaters, adulterers, effeminate, abusers of themselves with mankind, covetous, thieves, revelers, none of these shall enter into the Kingdom of God. He states that he was speaking from a grassy public easement between the Sidelines parking lot and the road. The City claims that Netherland was standing in the parking lot yelling at Sidelines customers that they were fornicators and whores and they were condemned to Hell for going inside the establishment. (quotation continues)
Municipal Involvement by Police Response (contd) The police were called and Netherland was eventually threatened with arrest if he did not stop. He left the scene and later sued for damages, declaratory relief, and injunctive relief . . . . Netherland v. Eubanks, 302 Fed. Appx. 244, 245-46 (5th Cir. 2008). Municipal Involvement by Police Response Police were called to the scene because of complaints that Netherland was disturbing the peace, in violation of the Citys disturbing the peace ordinance, quoted here in part:
(a) Disturbing the peace is the doing of any of the following in such a manner as would foreseeably disturb or alarm the public: ... (2) Addressing any offensive, derisive, or annoying words to any other person who is lawfully in any street, or other public place; or call him by any offensive or derisive name, or make any noise or exclamation in his presence and hearing with the intent to deride, offend, or annoy him, or to prevent him from pursuing his lawful business, occupation, or duty.... Zachary Code Ordinance 58-93.2, quoted in Netherland, 302 Fed. Appx. at 245 (bold print added).
Municipal Involvement by Police Response The district court found that the ordinance was unconstitutional on its face, and it granted a preliminary injunction against the City enforcing the ordinance. On the Citys appeal, however, the Fifth Circuit vacated the injunction and remanded for reconsideration [b]ecause the district court did not consider any limiting construction of the Ordinance before finding it facially unconstitutional . . . . Netherland, 302 Fed. Appx. at 245.
Municipal Involvement by Police Response What does it take to silence a speaker? Municipal Involvement by Police Response What does it take to silence a speaker? Arrest . . . OR . . . Simple Threat of Arrest? Municipal Involvement by Police Response
What does it take to silence a speaker? Arrest . . . OR . . . Simple Threat of Arrest? Compare Feiner with Netherland Municipal Involvement by Police Response Mr. Netherland was more compliant than Mr. Feiner had been and left before being arrested. This time, the threat of arrest was enough to silence the speaker. And since the threat of arrest came in response to complaints, it might be characterizable as a hecklers veto.
Municipal Involvement by Police Response The Fifth Circuit did not call it a hecklers veto, but there was no need to address it from that perspective because the court was able to dispose of the case on other grounds. Courts must focus on what constitutes disturbing the peace under a given ordinance or statute. And municipalities should focus on that in the first instance, before a matter ever gets to court.
Municipal Involvement by Police Response Prohibitions against disturbing the peace are supposed to be content neutral, but there is a confluence: what disturbs the peace in some settings will not do so in others. If a crowd does not want to hear what a speaker has to say, then the crowd may get unruly, and we return to Feiner. Listeners reaction to speech is not a content-neutral basis for regulation. . . . Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob. Forsyth County v. Nationalist Movement, 505 U.S. 123, 134-35 (1992).
Municipal Involvement by Police Response The police must preserve order when unpopular speech disrupts it; [d]oes it follow that the police may silence the rabble-rousing speaker? Not at all. The police must permit the speech and control the crowd; there is no hecklers veto. Ovadal v. City of Madison, Wisconsin, 416 F.3d 531, 537 (7th Cir. 2005) (Ovadal I) (citing Hedges v. Wauconda Cmty. Unit Sch. Dist. No. 118, 9 F.3d 1295, 1299 (7th Cir.1993)).
Municipal Involvement by Police Response Cities must strike a balance in using their police power so that they do not violate the rights that they are obligated to protect. Indeed, the protection against hecklers vetoes even forbids statutory schemes that would allow a disapproving citizen to silence a disagreeable speaker by complaining on other, apparently neutral, grounds. Frye v. Kansas City, Missouri, Police Dept., 375 F.3d 785, 793 (8th Cir. 2004) (Beam, J., Dissenting) (citing Reno v. ACLU, 521 U.S. 844, 880 (1997)).
Municipal Involvement by Police Response But if the speaker is disturbing the peace or creating a danger without reference to the content of his speech, police may stop his speech without violating his constitutionally protected rights. Such was the case when street preacher Ralph Ovadal took his message to pedestrian sidewalks that were on overpasses above a freeway. It might have looked something like one of these: Municipal Involvement by Police Response
Ovadals demonstrations there had a noticeable effect on traffic below[,] and police forced Ovadal to move from the overpasses on the grounds that his activities were causing a traffic hazard for the motorists below him. Ovadal v. City of Madison, Wisconsin, 469 F.3d 625, 627 (7th Cir. 2006) (Ovadal II). Mr. Ovadal argued that he was being subjected to a hecklers veto, but the Seventh Circuit held that his removal from the overpasses was contentneutral and constitutional. Id. at 629, 631. Municipal Involvement by Police Response In another recent case, a group of street preachers calling themselves Bible
Believers attended a festival in Dearborn, Michigan, a festival that is known to draw a very large crowd of Muslims. The preachers mixed with the crowd and spoke a message directed at Islam, which many found to be offensive. The crowd became violent, and the sheriffs deputies determined that the Bible Believers were causing the problem. A deputy chief informed one of the leaders of the Bible Believers that the group would be cited for disorderly conduct if they did not immediately leave the Festival. . . . [The preacher] complied, and the Bible Believers were escorted out of the Festival by more than a dozen officers. Bible Believers v. Wayne County, Mich., 805 F.3d 228, 240 (6th Cir. 2015).
Municipal Involvement by Anti-Harassment Policies Efforts to silence what some consider objectionable has become institutionalized through speech codes and the rise of safe spaces and socalled free speech zones on college campuses. In some instances, unpopular speech has been characterized as hate speech or harassment and legal restrictions have been imposed or attempted on that basis. Municipal Involvement by Anti-Harassment Policies Does the marketplace of ideas have room for fighting words?
Municipal Involvement by Anti-Harassment Policies Does the marketplace of ideas have room for fighting words? The content-based restriction contained in speech codes is an attempt to use the fighting words concept from Chaplinsky v. New Hampshire, 315 U.S. 568, 571 (1942), and expand it into a challenge to the marketplace of ideas concept. Municipal Involvement by Anti-Harassment Policies Scholars with the Newseum Institutes First Amendment Center have
explained: Many speech codes sought to end hate speech, which code proponents said should receive limited or no First Amendment protection. Supporting this view were many academics who subscribed to so-called critical race theory. Critical-race theorists contend that existing First Amendment jurisprudence must be changed because the marketplace of ideas does not adequately protect minorities. They charge that hate speech subjugates minority voices and prevents them from exercising their own First Amendment rights. David L. Hudson, Jr., and Lata Nott, Hate Speech & Campus Speech Codes, NewseumInstitute.org,
March 2017, http://www.newseuminstitute.org/first-amendment-center/topics/freedom-of-speech-2/ free-speech-on-public-college-campuses-overview/hate-speech-campus-speech-cod es/ (bold print added) Municipal Involvement by Anti-Harassment Policies Speech codes that arose on campuses during the 1980s and 1990s largely were held to be unconstitutional, but they might have been reborn in
the form of anti-harassment policies. Some universities dropped their broad, wide-ranging policies . . . in favor of more narrowly crafted anti-harassment or code-of-conduct policies. Whatever the terminology used, many universities still regulate various forms of hate speech. ... Many of the provisions that used to be called speech codes are being wrapped into anti-harassment policies[.] Id. (internal quotation marks omitted) (quoting First Amendment expert and law professor Robert Richards of the University of Pennsylvania).
Municipal Involvement by Anti-Harassment Policies As tempting as it might be to want to protect people from harassment, local governments should be cautious about following that lead. Consider this poster on the side of D.C. Metro cars and on the walls of Metro stations: Municipal Involvement by Anti-Harassment Policies The text reads: You have the right to be safe waiting for and riding Metro. You dont have to put up with inappropriate comments, touching, gestures, or actions. Help Metro protect you and other passengers.
If you witness or experience harassment, report it to the nearest Metro employee. David Post, Hecklers veto, anyone? The Volokh Conspiracy (Dec. 17, 2015) https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/12/17/hecklers-vet o-anyone/?utm_term=. 61930388fb7b Municipal Involvement by Anti-Harassment Policies Most of us might agree with the quoted text about having the right to be safe waiting for and riding Metro.
D.C. Metro is within its authority to use signs to promote safety, a proper public policy that does not violate constitutional protections. But this poster goes further, asserting that we dont have to put up with inappropriate comments, touching, gestures, or actions. We might wish we didnt have to put up with those things, but we probably doat least to some extent. Municipal Involvement by Anti-Harassment Policies Like the train its on, the text on this poster begins to move down the track toward a destinationnamely, insulation not only against unwanted
touching, but also against unwanted comments, gestures, or other actions. If anyone doubts that this is where the policy is headed, it is exclaimed in big letters, all caps, bold, red-on-yellow: IF ITS UNWANTED, ITS HARASSMENT. Municipal Involvement by Anti-Harassment Policies Imagine that a Metro passenger witnesses some of the following in a Metro car or station: three people praying and reading the Bible
a man reciting Islamic prayers on a prayer rug in the aisle a man wearing a shirt that says Black Lives Matter
a man wearing a shirt that says Blue Lives Matter a man wearing a shirt that says White Lives Matter a woman wearing a shirt promoting abortion rights
a man wearing a shirt that says Abortion is Murder! Municipal Involvement by Anti-Harassment Policies a woman wearing a shirt promoting legalization of prostitution
a woman actually soliciting sex a man and a woman kissing a person wearing a shirt promoting trans rights
a man wearing a shirt that says You dont have to stay gay. a man wearing a shirt promoting the right to die a teenage girl wearing a shirt that says TRUMP: MAKE AMERICA GREAT AGAIN!
Municipal Involvement by Anti-Harassment Policies a woman breast-feeding a man wearing a shirt with a Nazi swastika
two men kissing a man wearing a shirt with a Hindu swastika a man staring at a woman who appears not to know him
a woman patting people she appears not to know on their shoulders a man making repeated thrusting hand gestures while saying F*** [Trump or Obama or fill-in-the-blank] Municipal Involvement by Anti-Harassment Policies
Its easy to believe that some Metro passengers could be offended by one or more of these actions or expressions. Based on the Metro sign, a person who is offended and doesnt to see, hear, or feel any of those can consider it harassment and report it to the nearest Metro employee. This invitation to report perceived harassment appears to tilt the balance toward the person who takes offense. Municipal Involvement by Anti-Harassment Policies
But the constitutional implications arise in the context of Metros response to those reports. If Metro responds by asking the offending person to stop the behavior or leave, that might violate constitutional protections (depending, of course, on the exact nature of the action). Municipal Involvement by Anti-Harassment Policies A local governments attempt to protect people from harassment can easily go too far. Protected speech is not transformed into fighting words
by the peculiar sensibilities of the listener. . . . If First Amendment rights are subject to a middle schoolers hecklers veto, the level of discourse might be limited to that which would be suitable for a sandbox. People in Interest of R.C., 411 P.3d 1105, 1109 n.3 (Colo. Ct. App. 2016) (internal citations and quotation marks omitted) (juvenile disorderly conduct case). Municipal Involvement by Denial of Parade Permits The anticipation of violence might prompt some cities to deny parade permits.
If an ordinance permits a law enforcement authority the discretion to deny a permit for any reason that raises public safety concerns that ordinance would likely be held unconstitutional for granting a hecklers veto, as the Eleventh Circuit held in Burk v. Augusta-Richmond County, 365 F.3d 1247, 1257 (11th Cir. 2004). Note Judge Barkers concurring opinion, contending that the ordinance requiring permit for public demonstrations in groups of five or more, and granting the Sheriff discretion to deny a permit for any reason that in his own mind raises public safety concerns[,] effectively grants the Sheriff the authority to enforce a hecklers veto. Id. at 1258-59.
Municipal Involvement by Denial of Parade Permits Similar to Burk, the Fifth Circuit in Beckerman v. City of Tupelo, Miss., 664 F.2d 502, 509 (5th Cir. 1981), held unconstitutional an ordinance that authorized the chief of police to deny a parade permit if he determined that issuing the permit would probably provoke disorderly conduct or create a disturbance. The court characterized that provision as sanctioning the hecklers veto. Municipal Involvement by Denial of Parade Permits
However, the Fourth Circuit upheld an ordinance of the Town of Pelion, South Carolina, that prohibited the Ku Klux Klan from participating in a Christmas parade because of fear of violence. Critical to that decision was this observation: Under the facts presented in this case, a hecklers veto is not involved, because the real threat was believed to be presented by Klan members rather than by spectators. Christian Knights of Ku Klux Klan Invisible Empire, Inc. v. Stuart, 934 F.2d 318 (Table) at *2 (4th Cir. 1991). Municipal Involvement by Denial of Parade Permits
The issue of prospective violence was ultimately overruled in Iranian Muslim Org. v. City of San Antonio, 615 S.W.2d 202, 206-07 (Tex. 1981), where city officials had decided to deny parade permits to Iranian studentswho had sought to protest the Shah of Iranout of fear of violence toward the demonstrators. The lower courts upheld that decision to deny the permit, but the Supreme Court reversed, noting that it constituted a hecklers veto, and holding: Such fears are not a constitutionally permissible factor to be considered in regulating demonstrations. Id.
Municipal Involvement by Denial of Parade Permits As the District of Columbia Circuit has stated: The First Amendment forbids the government to silence speech based on the reaction of a hostile audience, unless there is a clear and present danger of grave and imminent harm. . . . Otherwise, a vocal minority (or even majority) could prevent the expression of disfavored viewpointsa result contrary to the central purpose of the First Amendments guarantee of free expression.
Steffan v. Aspin, 8 F.3d 57, 69 (D.C. Cir. 1993) (internal citations omitted) (describing prohibition of hecklers veto), judgment vacated by order for en rehearing Jan. 7, 1994, substitute opinion sub nom. Steffan v. Perry, 41 F.3d 577 (D.C. Cir. 1994). Municipal Involvement Through Security Fees In some situations, local governments can charge for the cost of providing security, but it must be imposed on a content-neutral basis. In Forsyth County v. Nationalist Movement, the Supreme Court addressed an assembly and parade ordinance that permits a government administrator to vary the fee for assembling or parading to reflect the estimated cost of
maintaining public order. 505 U.S. 123, 124 (1992). Municipal Involvement Through Security Fees In a rural Georgia county with a troubled racial history[,] a civil rights March Against Fear and Intimidation was held on January 17, 1987, consisting of some 90 civil rights demonstrators. The marchers were met by about 400 counterdemonstrators, affiliated with the Ku Klux Klan, greatly outnumbering police officers. The counterdemonstrators shouted racial slurs and threw rocks and beer bottles, forc[ing] the parade to a premature halt[.] Id. at 125 (emphasis
added). Municipal Involvement Through Security Fees The civil rights parade organizers returned the following weekend, January 24, and the parade developed into the largest civil rights demonstration in the South since the 1960s[,] involving some 20,000 civil rights marchers, about 1,000 counterdemonstrators, and more than 3,000 state and local police and National Guardsmen. . . . The demonstration cost over $670,000 in police protection, of which Forsyth County apparently paid a small portion. Id. at 125-26.
Municipal Involvement Through Security Fees As a result of those two demonstrations, Forsyth County enacted and ordinance that required the [parade] permit applicant to defray these [security] costs by paying a fee, the amount of which was to be fixed from time to time by the Board. Id. at 126. Municipal Involvement Through Security Fees Two years later, the Nationalist Movement sought a permit for a
demonstration on Martin Luther King, Jr. Day in Forsyth County, and the county imposed a $100 fee. The group did not pay the fee, and it did not hold the rally, instead filing suit seeking an injunction against the ordinance as unconstitutional. Municipal Involvement Through Security Fees The Supreme Court described the constitutional problem with the ordinance: The decision how much to charge for police protection or administrative time or even whether to charge at allis left to the whim of the administrator. There are no articulated standards either in the ordinance or in the countys
established practice. The administrator is not required to rely on any Objective factors. He need not provide any explanation for his decision, and that decision is unreviewable. Nothing in the law or its application prevents the official from encouraging some views and discouraging others through the arbitrary application of fees. The First Amendment prohibits the vesting of such unbridled discretion in a government official. Id. at 133 (internal footnotes omitted). Municipal Involvement Through Security Fees In a 5-4 decision, the Court held:
[T]he provision of the Forsyth County ordinance relating to fees is invalid because it unconstitutionally ties the amount of the fee to the content of the speech and lacks adequate procedural safeguards; no limit on such a fee can remedy these constitutional violations. Id. at 137. Municipal Involvement Through Security Fees The Connecticut Supreme Court reached a different outcome, on different grounds, in Morascini v. Commr of Pub. Safety, 675 A.2d 1340, 1349-50
(Conn. 1996), holding as constitutional a Connecticut statute requiring an event operator to pay fee to cover cost of police protection for events where the police chief determines that such protection is necessary, reasoning that it is not a hecklers veto. Where does Social Media fit into this? Social media has expanded into an electronic de facto public forum, where people express all varieties of speech. Of course, some of that speech is unpopular (from the viewpoint of some who disagree).
Using complaints on social media to identify unpopular speech and characterize it as hate speech is an effective way to employ the hecklers veto in the virtual world. Where does Social Media fit into this? There is no need for actually showing up to protest, as in the 2017 case of the Portland Rose Festival Parade, where a threatening email stopped a parade before it began. That email contained links to two Facebook pages of the protest group, showing what could happen if the parade organizers ignored the warning.
Social media can expand the reach of protest messages and elicit additional support for the protesti.e., opposition to the unpopular speech or speakers. Social media companies have responded by removing offensive posts and shutting down access for those who have been deemed to be hate mongers. But this has caused some problems. Where does Social Media fit into this? This weeks decision by Facebook, Spotify, Apple, and YouTube to take down material
posted by conspiracy theorist Alex Jones and remove his Infowars channel points to an acute dilemma faced by all social media platforms today in reconciling their commitments to both freedom of speech and to social responsibility toward the democracies that shelter them. Francis Fukuyama, Social Media and Censorship, The American Interest
(Aug. 8, 2018) Where does Social Media fit into this? (Headline only. Article beings on next page.) Where does Social Media fit into this? This year, dont count on the social networks to provide its core service:
an uncensored platform for every imaginable view. The censorship has already begun, and itll only get heavier. Leonid Beshidsky, Welcome to 2018, the Year of Censored Social Media, Bloomberg (Jan. 3, 2018) Where does Social Media fit into this?
One extreme example appears to be a mistake resulting from an aggressive hate-speech-finding algorithm. Or was this a human decision? Text: At first glance, the Vindicators Facebook promotion did not seem designed to make waves. The small newspaper, based out of Liberty, a Texas town of 9,175 outside of Houston, planned to post the Declaration of Independence on Facebook in 12 daily installments leading up to the Fourth of July 242 years since the document was
adopted at the Second Continental Congress in 1776. But on the 10th day, the Vindicators latest installment was removed by Facebook. The company told the newspaper that the particular passage, which included the phrase merciless Indian Savages, went against its standards on hate speech, the newspaper wrote. Eli Rosenberg, Facebook censored a post for hate speech. It was the Declaration of Independence[,] The Washington Post (July 5, 2018). Where does Social Media fit into this? Where does Social Media fit into this?
Where does Social Media fit into this? YouTube has also been accused of censoring speech. In 2017, talk show host Dennis Prager, through his video lecture entity, Prager University, sued Google and YouTube for discriminating against his videos based on ideological content. (contd) Where does Social Media fit into this? (contd)
The Prager lawsuit argues that YouTube: is arguably the largest public forum for the expression and exchange of ideas and speech that has ever been available to the public in California, the United States, and ultimately the worldone to which Google/YouTube invite the public to express themselves in all manner of speech, and to engage with such speech through viewing and commenting. Prager University v. Google Inc., No. 17-CV-06064-LHK in the Northern District of California (Complaint, filed 10/23/17) at p. 6, 11. (contd)
Dkt. 1 Where does Social Media fit into this? PragerU argued that Google/YouTube should be treated as a public forum under Marsh v. Alabama, 326 U.S. 501 (1946) (The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.) The district court disagreed that Marsh extended this far and dismissed the
lawsuit. PragerU has appealed that decision to the Ninth Circuit Court of Appeals. Where does Social Media fit into this? Such actions have led to discussions about government regulation. Where does Social Media fit into this? Municipalities are using social media, some very extensively. Where does Social Media fit into this?
Where does Social Media fit into this? Where does Social Media fit into this? Social media presents some legal issues for municipalities. For example: text on next page: Where does Social Media fit into this? Where does Social Media fit into this?
Where does Social Media fit into this? But wait! What does this have to do with unpopular speech and the hecklers veto? Where does Social Media fit into this? Paper from the ILG (California): Another implication of social media is that conversations are occurring in different places and among different people. No longer is the concept of a community something that is
defined by location. There are a number of implicationsboth positive and negativefor public officials. The legal issues represent one such set of implications. Issues to be aware of include: 1) First Amendment issues relating to government on speech, *** restrictions
Where does Social Media fit into this? First Amendment Issues Public Forum Issues for Blogs, Facebook and Interactive Sites One motivation for public agencies to use social media is that they can be effective mechanisms for sharing important information. However, part of their popularity lies in their interactive capabilities: indeed, the ability to get feedback and energize online communities is one of the emerging powers of Web 2.0 applications.
Thus, while a public agency can control what its part of the conversation says, there are limited options for managing what others might say. Moreover, trying to so do may risk litigation under the civil rights laws. Where does Social Media fit into this? The degree to which public agencies can control what gets posted on a website, blog or social media site turns on what courts call a public forum analysis. The first question is what kind of public forum has a public agency created? There are three possible answers:
1) A traditional public forum, 2) A designated public forum, and 3) A nonpublic forum. Traditional public forums are places like streets, sidewalks, and parks which have been by tradition or public agency action been devoted to assembly and debate. A nonpublic forum is a place that is not by tradition or designation a forum for members of the public to communicate with each other. Where does Social Media fit into this?
A designated public forum involves a situation in which a public agency intentionally opens a nonpublic forum for public discourse. There is a subcategory of a designated public forum that is called a limited public forum that refers to a type of nonpublic forum that the public agencies have intentionally opened to certain groups or to certain topics. *** A threshold issue is whether a public agency has opened its website or other communications vehicle to others to post materials of their choosing. If not, then the website is
not a public forum and the agency does not violate First Amendment rights when it excludes content. Where does Social Media fit into this? If a public agency does allow others to post materials of their choosing on a website, blog or social media site, then a credible argument can be made that the agency has created a designated public forum. This would mean that the agency cannot exclude (or delete) material based on its content unless that restriction served a
compelling state interest that is narrowly tailored to achieving that interest. Even if the agency created only a limited public forum for certain groups or to certain topics, it cannot delete posts simply because they are critical of the agency, its officials or employees or the agency otherwise dislikes what the posts say. Where does Social Media fit into this? Strategies to Minimize First
Amendment Missteps Social media site settings are another opportunity to minimize missteps. On Facebook, for example, a public agency has choices on how to set its page up. On a "fan page," an agency may select settings so that only authorized staff can start a new topic. This helps limit topics to ones that are related to agency business. *** Although factually and technically a public agency could take these actions to control comments posted, the question is under what circumstances it would be lawful
to do so. A potential example is deleting comments because they contain profanity. The United States Supreme Court has recognized that some forms of profanity are protected speech. Where does Social Media fit into this? Suppose a City website contains a section where people can comment about the citys policies. Person no. 1 posts a comment that the city should not be favoring a certain group of people [fill in the blank].
Person no. 2 responds that the comment from Person no. 1 constitutes hate speech. Where does Social Media fit into this? What should the City do? If the City removes the comment, is it violating the First Amendment rights of Person no. 1? If the City removes the comment, would the City be giving in to the hecklers veto?
Cities need to have social media policies that cover these situations, and analyze these issues in light of First Amendment protections. Conclusion As noted at the outset, speech that is popular with some is unpopular with others. The government must protect the rights of speakers and protestors. In both the tangible world and the virtual world, municipalities must proceed with care in balancing the interests of speakers with those of protestors, and must maintain the peace while avoid and endorsement of the hecklers veto.