Heckling is a criminal offence?

by John Quiggin on May 5, 2017

In response to discussions about freedom of speech, particularly at university campuses, I started thinking about the question of heckling a speaker, and to what extent this is, or ought to be, protected by advocates of freedom of speech. I assumed that the correct formulation (both legally and in terms of what is appropriate) is the one attributed to Nat Hentoff

“First Amendment law is clear that everyone has the right to picket a speaker, and to go inside a hall and heckle him or her—-but not to drown out the speaker, let alone rush the stage and stop the speech before it starts
It turns out, however, that Hentoff was wrong, as shown by the case of the Irvine 11.

The Irvine 11 were Muslim students protesting at a speech by the Israeli ambassador. At intervals of a few minutes, they stood up and called out comments critical of Israel. Each was then forcibly removed. On Hentoff’s reading, their removal was an unconstitutional violation of First Amendment free speech rights. Clearly, they weren’t shouting down the speaker, and the total time used up by their interruptions wasn’t significant.

But the police didn’t stop at removing the protestors. They were charged with and convicted of “disrupting a public meeting” and (since they’d acted in concert” with conspiracy to disrupt the meeting. IANAl, but I assume that the police can’t make up criminal offences on the spot, so, presumably, “disrupting a public meeting” is a crime. Further, in the view of the courts, heckling, even in the form of occasional interjections, constitutes disruption.

In these circumstances, it’s perhaps not so surprising to find that the ACLU is more solicitous about Donald Trump’s First Amendment rights to encourage violence against hecklers (or even silent protestors) than about the rights of the protestors, which, as the ACLU explains here are trumped(!) by the rights of private property (unless these rights are exercised in a racially discriminatory fashion).

{ 23 comments }

1

kidneystones 05.05.17 at 8:31 am

From your link: the actual quote without comment:
“It is never a good time to alter the law so that more speech can be punished, the ACLU lawyer said in her post. “Political speech should qualify as incitement only if it is unequivocally and inherently a request for violent and unlawful action.

“‘Get ‘em out’ just doesn’t meet that bar,” she said.

2

John Quiggin 05.05.17 at 8:52 am

Also without comment, from the same link

The protesters point to Trump’s statements at earlier rallies that “maybe [a protester] should have been roughed up,” his urging to supporters to “knock the crap” out of anyone “ready to throw a tomato,” and he would “like to punch [a protester] in the face,” as well as Trump’s pledge to pay for his supporters’ legal fees if they were sued by protesters.

3

Alesis 05.05.17 at 9:21 am

Racism, particularly broad based as opposed to individualized racism, is uncomfortable to discuss. Witness the endless profusion of euphemisms for racist political movement. Populists. Traditionalists. Anti globalists. Anti PC.

From the perspective of a non white American it’s often seems as though our poltical culture would rather burn itself alive than discuss popular racism. So instead we talk about a nebulous conception of the first amendment that goes beyond suppression but the state to shouting down speakers. Because we’d rather not talk about the racism.

This is clear because the foment over arresting someone who say laughs in a senate hearing is much much more attenuated that the deep concerns with California universities canceling speeches by professional provocateurs.

4

J-D 05.05.17 at 9:56 am

They were charged with and convicted of “disrupting a public meeting” and (since they’d acted in concert” with conspiracy to disrupt the meeting. IANAl, but I assume that the police can’t make up criminal offences on the spot, so, presumably, “disrupting a public meeting” is a crime.

Section 403 of the California Penal Code:

Every person who, without authority of law, willfully disturbs or breaks up any assembly or meeting that is not unlawful in its character, other than an assembly or meeting referred to in Section 302 of the Penal Code or Section 18340 of the Elections Code, is guilty of a misdemeanor.

5

Manta 05.05.17 at 12:16 pm

ACLU analysis from the link seems pretty uncontroversial to me:
“Generally, a campaign rents space for its rallies, which gives it the right to exclude people for “trespass” as well as get law enforcement’s help to do so… Campaigns, of course, have no right to control the messages expressed in public spaces outside rallies.”

Which part are you objecting to?

6

Mike Huben 05.05.17 at 12:50 pm

That’s another one of those laws that can make everyone guilty of something.

If you are a student, and you talk in class.

If you are in a theatre and applaud.

If an audience is divided, and both sides are noisy, how do you decide which is creating the disturbance? By majority? By which sides with a speaker?

Can such a law be enforced when numerous people are responsible for the disturbance, any more than murder laws were enforced on lynchers?

You can even make a case that the speaker at a meeting could be causing a disturbance by speaking offensively to a portion of the audience.

And let’s not forget the selective enforcement of such laws.

7

Theophylact 05.05.17 at 1:52 pm

8

alfredlordbleep 05.05.17 at 2:20 pm

Against the Hentoff claim there is (to repeat my comment in another thread):

To make a distinction: back in the ’60s very prominent government officials (viz. Robert McNamara) were getting pushback on elite campuses (OK, shouted down). It was a small way of getting publicity for the anti-Vietnam war protest that never made it to mass circulation platforms. The distinction is in the asymmetry and that the hitting back was against government officials.

9

Omega Centauri 05.05.17 at 3:35 pm

I would second Mike at 6. What seems to be missing is the excercise of judgement and proportionality. A few guffaws are a minor irritant, versus shouting down a speaker so its impossible for him/her to proceed.

10

L2P 05.05.17 at 4:25 pm

Maybe it’s just me, but those all seem like crimes that should be punished. None of those examples are places where conduct is strictly regulated. We generally have to separate the speech and non-speech aspects of all conduct, including speech. And all of these look like punishment of the non-speech conduct that should be and is being regulated.

For example:

If you are a student, and you talk in class.

So you’ve got Joey, who disrupts class by rapidly sitting down and standing up. He can be punished criminally. But Johnny, who disrupts class by talking loudly, can’t be. Seem’s strange, right? That’s b/c the issue here isn’t what we’re punishing, but the use of criminal punishment in schools. Either way, the activity is disrupting school.

If you are in a theatre and applaud.

If you applaud right before a ballerina jumps into a difficult lift, you literally could kill her. So you can use criminal punishment for someone who points a laser pointer into her partner’s eyes, but not someone who distracts him with loud clapping? Again, it’s not the speech. It’s the conduct – that act is distracting to performers and the audience. Of course it can be criminalized.

If an audience is divided, and both sides are noisy, how do you decide which is creating the disturbance?

They both are? Not sure why this is even problematic for you. Can’t tell you how many times I’ve heard a chair say “Clear all audience members.”

You can even make a case that the speaker at a meeting could be causing a disturbance by speaking offensively to a portion of the audience.

Not only CAN you make a case, that is literally causing a disturbance.

And let’s not forget the selective enforcement of such laws.

Now that’s a good point, and we certainly could loosen up the standards for proving discriminatory enforcement. But that is a defense, and has been successfully used in tons of free speech cases.

11

John Quiggin 05.05.17 at 8:03 pm

@10 How about protesting outside a meeting, loudly enough to be heard inside, but not so loud as to prevent the speaker being heard? That’s certainly aimed at preventing the meeting going the way the organizers would like, just like heckling inside.

12

Sebastian H 05.05.17 at 8:13 pm

This discussion provides great examples of how vague rules can be used to oppress.

13

Layman 05.05.17 at 8:37 pm

L2P @ 10, remind me not to let you make or enforce the laws. Good grief.

14

KPChief 05.05.17 at 9:41 pm

How about laughing at a confirmation hearing? Protected?

15

J-D 05.05.17 at 10:03 pm

In 2014 an appellate panel upheld the convictions, but lawyers announced their intention to appeal again to a higher court.
Does anybody have any ideas about how to find out whether that further appeal was lodged or how it has progressed?

16

John Quiggin 05.06.17 at 1:00 am

@14 I hadn’t realised you were referring to a real event. That’s stunning

https://thinkprogress.org/woman-faces-a-year-in-prison-after-laughing-at-jeff-sessions-8ce8ff1f9ed1

17

kidneystones 05.06.17 at 1:29 am

From the racist pro-Republican http://www.huffingtonpost.com/entry/jeff-sessions-laugh-congressional-hearing_us_590929bbe4b05c39768420ef

Desiree Fairooz, an activist associated with the organization Code Pink, was found guilty on two counts: one for engaging in “disorderly or disruptive conduct” with the intent to disrupt congressional proceedings and a separate count for parading, demonstrating or picketing.

Several jurors who spoke with HuffPost after the verdict emphasized that they were focused on Fairooz’s actions after a rookie Capitol Police officer approached Fairooz when she laughed at Sen. Richard Shelby’s (R-Ala.) claim that Sessions had a clear, well-documented and “extensive record of treating all Americans equally under the law.” A group of jurors spoke to HuffPost on the condition of anonymity.

She did not get convicted for laughing. It was her actions as she was being asked to leave,” the jury foreperson said. (my italics)

Vanity Fair, the NYT, and other outlets bury the explicit statements by the jury that the protester’s laughter was not a factor in their decision to convict on two counts.

Fake news, anyone?

18

Raven Onthill 05.06.17 at 11:12 pm

Juries (any lawyer will tell you) are scary. They are subject to all the prejudices of society, and one crank can swing a verdict.

We’d have to check, but I suspect “her conduct after being asked to leave” consisted of not leaving for laughing at Sessions and being a protester.

19

Raven Onthill 05.06.17 at 11:13 pm

By the way, I suspect that the reasons we don’t know damning things about Sessions is because he has long been acting to silence public criticism, must as Trump.

20

Keith 05.07.17 at 4:58 pm

This debate merely shows the difficulty of applying very abstract ideas in practical situations. People clearly should laugh at Sessions very loudly as there is adequate evidence he is a racist hick. When we had public meetings in the Uk the hecklers were dealt with by witty rejoinders by politicians trained in hurly burly. Heckling may have been illegal ( ? ) but it was tolerated as part of the normal condition of politics. On the other hand it is impossible to defend disruption of social gatherings absolutely as no social events could happen at all if they were all continuously disrupted. I would suggest that as the actual work of the committee examining sessions was not frustrated in reality, so the prosecution is not in the public interest. But that is obviously too sensible an approach for the justice dept.

21

Taj 05.08.17 at 4:51 pm

Of relevance to this thread, from the above HuffPo story:

The jurors indicated they felt they had to convict Fairooz because of the way the laws are written, with yet another juror describing them as “so broad.”

At least three jurors said it was fair to say they felt forced into convicting her. “There’s almost no way that you can find them not guilty,” one said.

22

Manta 05.09.17 at 8:59 am

@14 and @16

http://edition.cnn.com/2017/05/05/opinions/jail-for-protest-no-laughing-matter-randazza/

“The press has, for the most part, fixated on Fairooz’s laughter at Sessions, as though she has been convicted for that particular outburst. That is not true. The jury foreperson stated, publicly, that the jury did not agree with Officer Coronado’s actions, but felt compelled to convict Fairooz nonetheless.
She was not convicted for laughing, but rather for her disruptive conduct as she was being escorted out of the room. Several jurors said they sympathized with Fairooz, but because the law is so broad that they felt that they had no option but to convict…Should she have done it? No. Disrupting a speech, court, or a congressional hearing is something we should take seriously. I don’t care if it is a few students who do not want other people to hear Charles Murray speak or Berkeley rioters trying to shut down Ann Coulter or just activists disrupting a congressional hearing. I do not approve of conduct like Fairooz’s without reservation.
But, the notion of an American citizen going to jail for a nonviolent political protest is utterly antithetical to what this country is all about. It is a disgrace. Officer Coronado is a disgrace for arresting her. The prosecutor is a disgrace for charging her. The jurors are disgraces for convicting her.”

23

Ogden Wernstrom 05.09.17 at 3:27 pm

If I understand correctly, the disruptive behavior occurred after the officer acted to suppress further speech from Fairooz by removing her.

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