Limiting Free Speech (30): The Heckler’s Veto

Should someone in an audience – or an entire audience for that matter – have the right to silence a speaker by way of hostile and loud reactions? Or is this a case in which the right to free speech of an audience or someone in an audience can be restricted? In the U.S., “heckling” as it is called does not violate the right to free speech of the speaker who is being heckled. The First Amendment only protects speech from government infringement, not from private infringement (“Congress shall make no law…”). In this case, the heckler is presumed to be a private person, and his or her actions therefore cannot violate the First Amendment.

I believe that this is an American anomaly, and that people’s right to free speech should be protected against both government and private infringement. Private individuals can also violate someone’s right to free speech.

Still, let’s return to the case of heckling in the U.S. Audiences have a right to heckle, as they should have. The leading judicial decision here is In re Kay of the Supreme Court of California. This decision overturned a 4 month prison sentence for hecklers who had shouted and clapped during a speech by a member of Congress.

The Court granted the right to heckle and stated that this is a legitimate part of the “cacophony of democracy”. Even though heckling and booing and shouting and other types of disruption may be uncivilized, impolite and often stupid, it’s free speech and it should be protected.

But at the same time, the Court allowed the state to punish hecklers when their disruption results in the impossibility to continue a meeting or a speech. The right to free speech of the hecklers has to be balanced against the right to free speech of the heckled. One right shouldn’t be allowed to destroy the other right.

Freedom of everyone to talk at once can destroy the right of anyone effectively to talk at all. Free expression can expire as tragically in the tumult of license as in the silence of censorship. In re Kay

I think the Court got this one absolutely right. And it seems that there’s a recognition that the state isn’t the only threat to free speech.

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6 thoughts on “Limiting Free Speech (30): The Heckler’s Veto

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