Search results for ""heckler's veto""

Ninth Circuit Rejects “Heckler’s Veto” Justification for Restricting Display of Aborted Fetus Photos Near School:

An interesting and generally quite correct decision from the Ninth Circuit. The facts:

On March 24, 2003, Plaintiffs Paul Kulas, a Bio-Ethical
Reform employee, and Thomas Padberg, a Bio-Ethical
Reform volunteer, drove to Dodson Middle School in Rancho
Palos Verdes, California. Kulas drove a truck that displayed
the [large, graphic] photographic images of aborted fetuses and Padberg drove
an escort “security vehicle.” The security vehicle was a white
Ford Crown Victoria sedan equipped with a security cage,
red-and-amber flashing lights, push bars, and antennae
mounted on the roof. The two men arrived at the school at
about 7:30 a.m. — about thirty minutes before classes began.
They then drove on public streets around the perimeter of the

Plaintiffs’ graphic display quickly caused concern among
school officials. Defendant Art Roberts, an assistant principal
at Dodson Middle School, identified traffic as one of his primary
concerns. According to him, 85 to 95 percent of Dodson’s
2000 students arrive by bus or car between 7:15 a.m.
and 8:00 a.m. The students’ arrival causes “heavy traffic”
around the school. This traffic can become a safety hazard
when drivers or pedestrians become upset, angry, or distracted.
At a preliminary hearing, Roberts testified that during
the time he had worked at Dodson Middle School, vehicles on
streets around the school had struck five children and killed

On the day Plaintiffs were at Dodson Middle School, Assistant
Principal Roberts observed some children stopping on the
sidewalks and staring at the photographs of aborted fetuses,
while others momentarily stood in the middle of the street.
Faculty members also reported “abnormal” difficulty getting
children onto the campus.

Assistant Principal Roberts identified additional concerns.
He saw a number of children express anger over Plaintiffs’
graphic display. He also overheard a group of boys planning
to throw rocks

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The Heckler’s Veto at Virginia Commonwealth University:

Meryl Yourish reports:

A student group called Supporters of a Safe Israel at Virginia Commonwealth University wants to bring the [very controversial] Daniel Pipes to VCU for a lecture. However, due to the current anti-Israel climate on many college campuses, whenever a group brings a pro-Israel speaker, the colleges demand extra security due to the protests and controversy that will ensue. SSI needs to raise an extra $5,000 [UPDATE: Meryl has update her blog to reflect that only $350 of the money the organization needs to raise is for the extra security], and they’ve only got about a month.

VCU policy (see p.9) grants the university discretion to require security for student-sponsored events, either for crowd control purposes, “or for other circumstances.” I suspect that as applied to the Pipes visit, where the security will be because of the controversial nature of Pipes’ views (among other things, he is often–and falsely–accused of being “anti-Muslim”), and not for crowd control, VCU’s policy is unconstitutional. The closest case on point is Forsyth County v. Nationalist Movement, in which the Supreme Court invalidated a county rule that allowed the county to condition a demonstration permit on the organizers paying the county in advance for security. The Court noted:
The county envisions that the administrator, in appropriate instances, will assess a fee to cover “the cost of necessary and reasonable protection of persons participating in or observing said . . . activit[y].” In order to assess accurately the cost of security for parade participants, the administrator must necessarily examine the content of the message that is conveyed, estimate the response of others to that content, and judge the number of police necessary to meet that response. The fee assessed will depend on the administrator’s measure of the amount of hostility likely to
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Ohio School Apparently Banning Pro-Gay-Rights T-Shirt

Here’s the shirt, as photographed by one of the students who organized this:

U.S. News & World Report reports:

The debate at Celina High School started after two female high school students celebrated the high school’s “Twin Day” last week by wearing shirts to school that read “Lesbian 1” and “Lesbian 2” on the back. They were promptly asked to remove the T-shirts, according to students there.

On Tuesday, some 20 students decided to show their support of the girls by wearing their own T-shirts to school. The shirts read: “I support…” with a photo of a rainbow. “Express yourself.”

The students say that the shirts were banned on the grounds that they were “political,” though there seems to be no policy banning political shirts, and indeed (the students say) many other students often wear political shirts. According to the article, administrators “agree the students who wore the rainbow T-shirts were asked to remove them,” but say that this is likely because the shirts were seen as “disruptive.”

Under the Tinker v. Des Moines Independent School District (1969) decision, public K-12 schools are indeed entitled to restrict student speech when it poses a material risk of substantially disrupting school work, and courts have generally read this as covering speech that is disruptive only because its viewpoint arouses hostility from viewers. The “heckler’s veto,” under which speech is restricted because it may lead to misconduct by listeners or viewers who disagree with it, is generally not allowed in most contexts, but it is allowed — given the Tinker substantial disruption standard — in public K-12 schools.

Still, courts generally require some serious evidence of likely disruption, and not just administrator speculation; consider, for instance, the “Jesus Was Not a Homophobe” T-shirt case. And I’m not sure that such evidence [...]

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Not Safe to Display an American Flag in an American High School

Dariano v. Morgan Hill Unified School District (N.D. Cal.), decided the day before yesterday, upholds a California high school’s decision to forbid students from wearing American flag T-shirts on Cinco de Mayo. (See here and here for more on this case.)

The decision might well be correct under Tinker v. Des Moines Independent Community School Dist. (1969), which allows a “heckler’s veto” in K-12 school: Schools may indeed restrict student speech when it’s likely to cause substantial disruption, even when the disruption stems from other students’ hostility to the speech. As I mentioned in an earlier post, I think the speech restriction violates a California statute that gives students extra protection, but that claim wasn’t raised in this federal lawsuit.

Yet while the judge might have been right in his decision, the situation in the school seems very bad. When we’re at the point that students can’t safely display the American flag in an American school, because of a fear that other students will attack them for it — on May 5 or on any other day — and the school feels unable to prevent such attacks (by punishing the threateners and the attackers, and by teaching students tolerance for other students’ speech), something is badly wrong. Here’s an excerpt from the court opinion describing the facts that led the court to uphold the restriction:

On Cinco de Mayo in 2009, a verbal exchange and altercation arose between a group of predominantly white and a group of Mexican students. This altercation involved an exchange of profanities and threats were made. A makeshift American flag was put on one of the trees on campus. A group of Caucasian students began clapping and chanting “USA” as this flag went up. This was in response to a group of Mexican

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“Islam Is of the Devil” T-Shirts in Junior High School and High School

Sapp v. School Board of Alachua County (N.D. Fla. Sept, 30, 2011), which was just made available on Westlaw today, holds that (1) a public school properly restricted the wearing of “Islam is of the Devil” T-shirts because they led to substantial disruption, and (2) the school’s broader policy banning “clothing or accessories that … denigrate or promote discrimination for or against an individual or group on the basis of age, color, disability, national origin, sexual orientation, race, religion, or gender” was constitutional.

Decision 1 strikes me as correct, given Tinker v. Des Moines Indep. Comm. School Dist. (1969), which allows speech in K-12 schools to be restricted if it seems likely to cause substantial disruption. To be sure, this allows a “heckler’s veto” that wouldn’t be allowed outside K-12 schools — here, for instance, the disruption included (among other things) a student’s telling one of the T-shirt wearers, “My friend is a Muslim, and he’s going to kill you”; if this happened outside school, that would only be justification for punishing the threatener, not suppressing the speech of the threatened. Nonetheless, Tinker does allow student speech to be restricted when it causes disruption, and hostile reactions might well be quite disruptive.

Decision 2, though, strikes me as incorrect, because it isn’t limited to speech that causes disruption; indeed, the policy is much like that struck down by the Third Circuit in Saxe v. State College Area School Dist. (2001). Indeed, the policy is so broad that it would ban display of messages that say “Preserve Traditional Marriage” (in a context where this is understood as opposing proposals to allow same-sex marriage), even if such messages create no disruption — after all, such a message “promote[s] discrimination … against … [a] group on the basis of … [...]

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Return on Investment of Thuggery

Some of the comments to the Thugs Win Again post point out that there might not have been any specific threats that led to the Mansfield officials’ decision to kick out the an anti-radical-Islam / possibly anti-Islam and anti-Muslim speech. (The speech was on government property, but in a limited public forum that had generally been deliberately opened by the government to a wide range of political speech.) I suggested as much in my original post, in noting that the fear of violence may have stemmed either “from specific threats related to this talk, or from threats made about other events in the past.”

Yet if anything, this possibility makes matters even more troubling. Here’s the problem: Thuggery, which is to say violence or threats of violence, can be fairly expensive for the thugs. They might get arrested, imprisoned, perhaps even killed. If an event is cancelled because someone shows up shouting threats, that’s a heckler’s veto, and it’s bad for free speech (and often unconstitutional). But at least the person making the threats can be prosecuted, and maybe future thugs would be a bit deterred, or at least less encouraged. Behavior that gets rewarded gets repeated, but behavior that gets rewarded (the thug gets what he wants in getting the event stopped) but heavily punished (the thug goes to jail) is much less likely to get repeated.

But what if all it takes to restrict speech is some anonymous e-mails that don’t lead to a prosecution, and aren’t even referred to the police? That was what happened in the Seattle Thugs Win Again incident (that one, as it happens, involving thugs disrupting an anti-Israel advertising campaign). As I said then, “The message is clear: If you want to stop speech that you dislike, just send a few threatening messages [...]

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New Jersey Public Transit Employee Fired for Blasphemy

The New York Daily News reports:

[Derek Fenton, t]he protester who burned pages from the Koran outside a planned mosque near Ground Zero has been fired from NJTransit, sources and authorities said Tuesday….

“Mr. Fenton’s public actions violated New Jersey Transit’s code of ethics,” an agency statement said.

“NJ Transit concluded that Mr. Fenton violated his trust as a state employee and therefore [he] was dismissed.” …

Fenton was an assistant train-consist coordinator, sources said — a job that entails ensuring there are enough train cars positioned to be put into service….

If Fenton was fired for burning the Koran while off-duty, his First Amendment rights probably were violated, Chris Dunn of the New York Civil Liberties Union said….

The relevant First Amendment test for when the government may fire an employee for off-duty expression on a matter of public concern (such as the expression here) is unfortunately quite vague: The government may restrict such speech, but only if the restriction is “necessary for their employers to operate efficiently and effectively” (with “necessary” being read a bit loosely). It’s hard for me to see much of an argument that Fenton’s expression interferes with the employer’s effectiveness by undermining public confidence in the employer; Fenton isn’t a spokesman for the employer, or in a position where the public must be able to count on his fairness in exercising discretion with regard to members of the public (e.g., a police officer).

The one argument I can see the government potentially persuasively making is that Fenton’s expression might lead to a risk of terrorist attack on NJ Transit trains; such a “heckler’s veto” might be permissible when it comes to the government’s actions as employer, as opposed to the government’s actions as sovereign policing the speech of private people. But if [...]

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A Sad Victory for Thuggery in Texas

The Foundation for Individual Rights in Education reports:

A student performance of an excerpt from Corpus Christi, a play positing Jesus Christ as a gay man, was canceled this past Friday at Tarleton State University (TSU) in Texas amid controversy and calls for censorship.

The performance of the excerpt, which was to be directed by TSU student John Otte, was scheduled to be held on Saturday morning as fulfillment of an assignment for an advanced directing class. Instead, Corpus Christi and three other student-directed plays, also scheduled for Saturday, were canceled by the class’s professor late Friday evening[, citing] … “safety and security concerns for the students as well as the need to maintain an orderly academic environment.” …

Otte’s selection of award-winning American playwright Terrence McNally’s play had prompted condemnation from fellow students and community members because of the play’s content. Shamefully, even Texas Lieutenant Governor David Dewhurst weighed in on the side of censorship, saying in a statement that “Every citizen is entitled to the freedom of speech, but no one should have the right to use government funds or institutions to portray acts that are morally reprehensible to the vast majority of Americans.”

Fortunately, however, … TSU President F. Dominic Dottavio recognized in a March 11 open letter that while TSU does not endorse the play, and while he personally found it “offensive, crude, and irreverent,” TSU, as a public university, was “legally bound to allow the student production to go forward.” Dottavio further wrote:

We have had many conversations with the Office of General Counsel for The Texas A&M University System and they have made it clear to us that this is an unambiguous freedom of speech (First Amendment) issue. The Supreme Court of the United States has consistently held that public universities may not engage

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Shouting Fire in a Crowded Theater:

People often argue some speech is unprotected by analogizing to shouting fire in a crowded theater. (Here’s the most recent example in the comments.)

But of course shouting fire in a crowded theater is often constitutionally protected. For instance, if there is a fire, shouting fire may be good. (It may sometimes not be good, if more people die in the panic than would have died from the fire if one had spoken more calmly — but even then, I’m pretty sure that it would be constitutionally protected.)

And in fact the line from Justice Holmes in Schenck v. U.S. is “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” That “falsely” is what’s doing the work, both in Justice Holmes’s hypothetical, and in how such a false shout would be treated by First Amendment law today: Knowingly false statements of fact are usually constitutionally unprotected, whether because they constitute libel, fraud, perjury, and false light invasion of privacy; that would presumably apply to knowing falsehoods that cause a panic.

If the statement is not knowingly false, though, the analogy breaks down. The comment I linked to, for instance, was “Given the history and probabl[e] reactions, how is yelling ‘Allahu Akbar’ in a Jewish wedding different from yelling fire in a theater?” If the argument is that the speech may lead to violence against the speaker, then the arguer needs to discuss the heckler’s veto cases. If the argument is that the speech will be misperceived as a terrorist attack, so the panic may indeed flow from a false perception on the listener’s part, the arguer needs to explain why the perception is indeed likely and why the speech may be punished even though [...]

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As Professor Shmoe Says:

Here’s a tentative conjecture I have about effective legal writing: Legal writing tends to be better if you give scholars you quote credit in footnotes, not in the text. Thus, for instance,

Professor X has insightfully expressed the argument that the disruption inquiry subjects speech to a “heckler’s veto”; that is, the “content- or viewpoint-based listener reactions” of co-workers, superiors, or the public are a determining factor of the scope of employee speech protection.

is generally better written just as

The disruption inquiry subjects speech to a “heckler’s veto”; that is, the “content- or viewpoint-based listener reactions” of co-workers, superiors, or the public are a determining factor of the scope of employee speech protection.

(I assume of course the quote from X is attributed in a footnote, and I don’t want to discuss how else, if at all, this sentence can be improved.)

Why do I say this?

1. The reader wants to see what you’re arguing. Who said it first generally doesn’t matter. What matters is the argument that’s being made; and while “Professor X has insightfully expressed the argument that” is not a vast digression or distraction, it is something of one.

2. The reader also wants to know what you are arguing. Whether deliberately or not, “Professor X has insightfully expressed the argument that” is unclear on whether you fully endorse the statement. It looks like you are, but it’s not completely clear. “As Professor X has argued,” is less ambiguous, and seems to commit the author more clearly to what comes after; but even that’s not as clear as just saying what you’re asserting, and giving the credit in the footnotes.

3. Especially when a lot of people are credited, the article begins to look more like a literature survey, a summary of what others are [...]

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Seemingly Troubling Behavior from NYU:

The Foundation for Individual Rights in Education, a group whose accounts I have generally found quite accurate, reports (see here for the version with links):

In violation of its own policies, New York University (NYU) is refusing to allow a student group to show the Danish cartoons of Mohammed at a public event tonight. Even though the purpose of the event is to show and discuss the cartoons, an administrator has suddenly ordered the students either not to display them or to exclude 150 off-campus guests from attending….

Earlier this month, the NYU Objectivist Club decided to hold a panel discussion entitled “Free Speech and the Danish Cartoons,” at which the cartoons will be displayed…. Like previous NYU Objectivist Club events, the discussion was to be open to the public.

However, on Monday afternoon, NYU Director of Student Activities Robert Butler sent an e-mail requesting a meeting with the leaders of the Objectivist Club the next day. He also informed them that NYU would now “require that this event be open only to members of the NYU community.” Butler cited “the campus climate and controversy surrounding the cartoons,” ordering the students to inform the “non-NYU people” who had already registered that they “should not plan on attending.” He concluded, “This is not negotiable.”

Following the meeting, Butler sent another e-mail clarifying that the students have two choices: they must either not display the cartoons, or not allow anyone from off campus to attend the event. Approximately 150 off-campus guests are currently registered to attend….

NYU is a private institution, and is thus legally free to limits access to its property however it pleases. But most private universities have generally understood their mission as including enriching the intellectual lives of their students and fostering debate among students, including by helping the [...]

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You Can’t Say That! in England:

Where America is heading, if the First Amendment is found to have a “hostile environment” exception:

A UNIVERSITY lecturer who claimed that black people were less intelligent than whites was suspended from his post yesterday. Frank Ellis, a lecturer in Russian and Slavonic Studies, was sent home on full pay by the University of Leeds, which accused him of breaching its obligations to promote racial harmony under the Race Relations (Amendment) Act 2000. It is the first significant test of academic freedom since the introduction of the Act, which places a duty on public bodies to promote equality of opportunity and good relations between different races. …. He voiced support for the theory set out in The Bell Curve, a book published in 1994 by Richard J. Herrnstein and Charles Murray, that white people had higher average IQs than blacks. He said the study had “demonstrated to me beyond any reasonable doubt there is a persistent gap in average black and white average intelligence”. Dr Ellis also told Leeds students that women did not have the same intellectual capacity as men and that feminism, along with multiculturalism, was “corroding” Britain. His views outraged students, who staged a campaign to have him dismissed from the university. Leeds responded initially by stating that Dr Ellis had a right to express his views, although they were ‘abhorrent to the overwhelming majority of our staff and students”. Officials said that they had no evidence that his beliefs had led him to discriminate against students or colleagues. Yesterday, however, it announced that the ViceChancellor, Professor Michael Arthur, had suspended Dr Ellis and that disciplinary proceedings had begun. Roger Gair, the University Secretary, said that in publicising his views Dr Ellis had “acted in breach of our equality and diversity policy, and in a

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Two Reactions to the Gay Marriage Discussion:

An e-mail that I got today:

Thank you . . . for inviting Maggie Gallagher to guest-blog at your website this week . . . . While it is true my first instinct would be to reflexively disagree with one such as Ms. Gallagher should she write that “water is wet,” I instead find myself intrigued by her writing. Perhaps this is just a function of taking all of my arguments in favor of same-sex marriage from facially reasonable people and the arguments against from those who appear to be, at least, less sophisticated. I whole-heartedly welcome the inclusion of someone who is able to get me to question some of my own assumptions and think more deeply about an issue that is all too often dominated more by sentiment than reason.

And a post I saw yesterday on another blog (a blog subtitled “A collection of real-world libertarian, individualist and laissez-faire rants on law, economics, politics, culture and other current events by an average, everyday lawyer & investment banker and part-time pop scholar”):

Eugene Volokh is “delighted” that Maggie Gallagher is guest-blogging at his site to debate same-sex marriage.

I’m “delighted” that I de-blogrolled him well over a year ago. It saves me having to do it now.

Gallagher, a notoriously vicious anti-gay bigot, is not a constitutional law scholar (in fact she’s not even an attorney) and has nothing jurisprudential to bring to any debate on same-sex marriage. This “debate” will really be about the “pros and cons” of anti-gay bigotry, rationalized as a legal debate on same-sex marriage.

Perhaps next Volokh will invite some of those Ohio Nazis to guest-blog to discuss the “pros and cons” of anti-Semitism and rationalize it as a debate on the heckler’s veto.

Readers can no doubt infer which of these reactions [...]

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“Addicted to the Courts” — a Reminder to Liberals, Libertarians, and Conservatives:

NYU law professor Burt Neuborne — who has been, among other things, National Legal Director of the ACLU and Special Counsel to the NOW Legal Defense and Education Fund — warns his fellow liberals in an article in The Nation not to rely too much on victories in court. He writes:

In recent years, many progressives appear to have lost the habit of following up judicial victories with grassroots movements. Simply put, too often the appeal to courts is treated as the end of the political process, not its beginning. Three examples suffice.

The battle over abortion rights has never developed an effective movement designed to explain why abortion is fundamentally fair. . . . The progressive response [to pro-life criticism] was an abstract defense of individual autonomy that winds up sounding hedonistic, together with hairsplitting distinctions about when human life begins. . . .

The gay rights movement, winner of a great judicial victory in Lawrence v. Texas, when the Supreme Court invalidated criminal sodomy laws, immediately redoubled its judicial bets by challenging laws banning same-sex marriage. That may be good law, but it’s terrible politics. A grassroots movement designed to explain why it’s unfair to deny gays the ability to live together in stable relationships would result in widespread support for legally protected civil unions and pave the way for popular acceptance of same-sex marriage. Without such a campaign, opponents have been permitted an open shot to argue the unfairness of imposing unwanted changes on a historic, religion-based institution.

Finally, defenders of the wall between church and state have relentlessly pressed to remove religious imagery from the public square without seeking to persuade the public that it’s fundamentally fair to do so. Legalistic arguments simply do not convince many well-meaning people who feel cheated when their religious symbols

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Speech in Britain:

According to a British newspaper,

A PREACHER who spoke out against the “sin” of homosexuality — inflaming a Bournemouth crowd and sparking a furore over freedom of speech — was rightly convicted of a public order offence, top judges have ruled. . . .

The late Mr Hammond, a preacher for 20 years, was prosecuted after holding a controversial sign while preaching in The Square, Bournemouth, in October 2001.

The sign contained the words: “Stop Immorality, Stop Homosexuality, Stop Lesbianism”, as well as making references to Jesus.

Lord Justice May, sitting with Mr Justice Harrison, at the High Court in London, was told the sign caused a furore as a group of 30 to 40 people gathered round.

Hugh Tomlinson, QC, appearing for Mr Hammond’s executors [Hammond had died by then], said: “He (Mr Hammond) was subjected to a number of assaults. Soil was thrown at him and water poured over his head.

“Someone tried to seize the sign and he was knocked to the ground. He was the victim of the assault, not the perpetrator.” . . .

Mr Hammond was eventually arrested for a breach of the peace. He was then charged and convicted under the 1986 Public Order Act for displaying a sign which was “threatening, abusive or insulting within the sight of a person likely to be caused harassment, alarm or distress”.

He was fined £300 and ordered to pay £395 in legal costs.

The magistrates decided the restriction on Mr Hammond’s right to freedom of expression under Article 10 of the European Convention on Human Rights had the legitimate aim of preventing disorder in the light of the crowd’s reaction to his sign.

They concluded his behaviour went beyond that of legitimate protest.

Mr Tomlinson said that it had been wrong to prosecute Mr

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