With all the discussion these days over what public universities and municipalities can and should be doing to handle large, raucous rallies and protests without sacrificing public health and safety, one topic that has been mentioned but not often thoroughly analyzed is what the rules are, or ought to be, when a boisterous and angry crowd “shouts down” a speaker. For these purposes, we are defining “shouting down” not simply as booing, hissing, or otherwise expressing displeasure after a particular statement in a speaker’s address, but yelling at the very same moment at which the speaker is speaking—and at which some listeners are trying to listen—with the effect (and likely intent) of preventing members of the audience from actually hearing what the speaker is saying.
In our view, while the government may have no obligation to regulate or prohibit such oral interference (with an important caveat discussed below), a properly crafted law to prevent it would be constitutionally permissible, and not necessarily a bad idea.
Indeed, we are surprised that some prominent constitutional scholars seem to think otherwise. In a recent posting, our friend and respected colleague Mark Tushnet of the Harvard Law School wrote:
There’s another case that I think is easy one way, although I know lots of people who think it’s easy in just the opposite way: when a raucous crowd shouts down the speaker. . . . As far as I’m concerned—and, I think, as far as the First Amendment is concerned—it is okay. The jeerers are simply people attending the rally, no different from the supporters who cheer the speaker. It just so happens that the opponents vastly outnumber, or at least outshout, the supporters.
The opponents aren’t the government, so even if they prevent the speaker from getting his message across, that’s just too bad—or it’s speech countering speech.
I suppose you could say that the First Amendment gives the government a duty to make sure that the speaker is able to get his message across. But that’s implausible as a general principle. . . .
[M]aybe universities should have unenforceable “civility” guidelines counseling against it. The First Amendment, though, doesn’t say anything either way about heckling.
We find our colleague’s analysis here unconvincing. First, although we do recognize a First Amendment right to express discontent with what a speaker is saying, when jeering and heckling occurs not just in between the speaker’s utterances, but during each of them, they seem to us different in kind from speech to merely express the heckler’s contrarian point of view, and cross over into interference with, indeed the silencing of, another speaker’s expression. When jeerers become obstructers, they are different from “supporters who cheer the speaker,” because (presumably) the supporters are not cheering so loudly precisely when the speaker is speaking that the speaker cannot be heard, and therefore are not interfering with her ability to communicate her message. And, of course, supporters who cheer the speaker typically will respond to requests to quiet down to allow a talk to continue. Obstructers, by definition, refuse to do so. A line between interfering with and expressing a negative reaction to speech is not viewpoint based, but (as discussed below) is at worst a content-neutral regulation of the time, place, and manner of speech.
We also think Professor Tushnet asks the wrong question when he wonders whether “the government has a duty to make sure the speaker is able to get his message across.” The issue isn’t whether obstruction (of which shouting down is one kind of a broader category of interference) must be prohibited by government (it needn’t be); the issue is whether government can, if it chooses, regulate obstruction (which we think it can). That is why universities could (and perhaps should) do more than issue “unenforceable” civility guidelines; they can promulgate binding anti-obstruction regulations that can be enforced against those who are shouting down speakers.
In the balance of this column we explore in more depth exactly why such regulations would be permissible, and how courts should analyze them.
Analyzing a Hypothetical Regulation
Let us start with a hypothetical policy or ordinance that says:
At speeches and lectures on public property for which a permit or reservation is required and been issued, no individual may obstruct the ability of the featured speaker or speakers to speak in a way that may be heard by the audience. For these purposes, obstruction includes: (1) physically impeding a speaker’s route to the stage or platform from which the address is scheduled to take place; (2) physically interfering with the microphones or other amplification systems used by the event’s organizers to increase the speaker’s volume so that the speech may be heard by the audience; and (3) repeatedly making so much noise, through any means, at the precise moments the speaker is speaking such that the speaker’s words may not be heard by the audience.
Thus, the law would prohibit, among other things, physical blockades, tampering with loudspeakers or other sound systems, the use of air horns, sirens, and other devices designed to emit very loud and disruptive noises, as well as “shouting down.” Surely the first three activities can be prohibited. What about the fourth?
As a starting point, consider the following plainspoken language from the California Supreme Court in In re: Kay:
[The government] retains a legitimate concern in ensuring that some individuals’ unruly assertion of their rights of free expression does not imperil other citizens’ rights of free association and discussion. … 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.
That common-sense instinct is quite helpful, but it doesn’t really address how—doctrinally speaking—a law such as our hypothetical regulation should be evaluated. One possibility is to view this anti-obstruction law as a regulation of the time, place, and manner of speech: a city or university would be regulating the time (the precise moments when a speaker at an event for which there is a permit or reservation is trying to speak), the place (the event’s venue), and the manner (yelling so loudly that a speaker cannot be heard) of the jeerers’ shouts. If we were to view it this way, the law would survive, according to cases like Ward v. Rock Against Racism, so long as it were justified without reference to the content of the regulated speech, narrowly tailored to serve a significant governmental interest, and leaves open ample alternative channels for communication of the information.
A second approach would characterize the policy not even as a regulation of speech per se, but rather as a general regulation of non-speech conduct (obstruction) that in an instant case may be engaged in to express a message, that is, when the person shouting down the speaker is expressing the shouter’s own critical message. In cases involving the use of conventionally non-expressive conduct to communicate a message, like O’Brien v. United States, the draft card burning case, the test is similar but somewhat different: the law must further an important or substantial governmental interest unrelated to the suppression of free expression, and the incidental restriction on alleged First Amendment freedom is no greater than is essential to that interest.”
How do these two standards compare, which should be used, and what should the outcomes under each be?
As applied by the United States Supreme Court, the test employed to review time, place, and manner regulations of conventionally expressive conduct such as delivering a speech, distributing a leaflet, or marching in a parade is somewhat more rigorous than the test employed to evaluate general laws that are directed at conventionally non-expressive conduct but that incidentally interfere with an individual’s ability to engage in such conduct for expressive purposes.
The former laws are arguably more problematic for at least three reasons. First, courts are more suspicious of laws that target speech. Second, courts are more concerned about the impact on speech opportunities of laws that have their primary effect on speech-related activities. And third, meaningful judicial scrutiny in this context does not unduly empower courts insofar as government might be able to recraft laws that target speech to be more general, making judicial scrutiny of the speech-specific laws less threatening.
Thus, for example, if a law bans leafletting in a public park to reduce litter, the courts recognize the impact such a law imposes on an important means of communication. And they also understand that the state’s ostensible goal—anti-pollution—could be more precisely accomplished by a law that is more directly tailored to the state’s purpose, a ban on littering (as the Court reasoned in Schneider v. New Jersey).
A general law that is not directed at conventionally expressive conduct is, by contrast, less suspicious. Because the law is not directed at speech, courts are justifiably less skeptical that the law is motivated by a desire to restrict expression. Similarly, if the subject of the law is conduct that is rarely engaged in for expressive purposes, the impact of the law on the amount of speech that occurs is likely to be modest or even negligible. Finally, because an individual might claim that he is engaged in virtually any kind of illegal conduct “for expressive purposes,” requiring rigorous review of all such claims would dramatically expand the scope of judicial review.
Accordingly, for example, when demonstrators challenge a law regulating camping in a public park because they intend to camp in the park as part of a political demonstration, the court will evaluate the camping restrictions under very lenient review. As long as some legitimate state interest is furthered by the camping regulation and would be undermined by granting an exemption from it, the law will be upheld (as in Clark v. Community for Creative Nonviolence).
Which standard of review should apply to the anti-obstruction law we described above? The two of us do not fully agree on the answer to that question. Hecklers shouting down a speaker might argue (and one of us might agree) that, unlike draft card burning or camping in a public park, the shouting in which they are engaged is conventional expressive conduct. Speech is still speech even if it is shouted loudly. Thus, the anti-obstruction statute could be reviewed as a time, place, and manner regulation of speech.
But we both recognize that the mere fact that a general law is applied to conventionally expressive conduct does not always justify increasing the standard of review applied to it. An environmental law limiting pollution will not be reviewed as a time, place, and manner regulation of speech even if it is applied to a smoke belching plant publishing newspapers. And the delivery truck distributing newspapers has to obey the same traffic laws as every other truck driving on the city’s street. So the other of us feels that general laws not directed at conventionally expressive conduct perhaps should receive the lenient standard of review applied in O’Brien—even if the law is applied to conventionally expressive conduct like shouting slogans.
Other Factors to Consider
It may be that the answer to this question depends on additional factors. For the purpose of deciding the proper standard of review to apply, all general laws may not be alike. For example, some laws that as a formal matter might be general in scope and not explicitly directed at speech may, in practical terms, apply more often to expressive conduct than non-expressive conduct. Thus, an anti-obstruction regulation applied to lecture halls at a university may more often than not be applied to shouting objections to a speaker’s message and other conventionally expressive conduct, while an anti-obstruction ordinance directed at maintaining safe access to clinics providing abortion services may, in application, tend to deal with protestors who are physically blocking the entrance to the facility. The former law may deserve more rigorous review.
However, we need not dispositively answer this question that may divide the two of us to resolve whether government has authority to prevent the shouting down and silencing of speakers. Even under the more rigorous time, place, and manner standard, we think it is clear that the anti-obstruction regulation we described earlier would satisfy constitutional review.
The goal of protecting the ability of speakers to be heard is certainly an important state interest. To the extent that anti-obstruction laws limit speech, they do so in the service of promoting free speech values. It is also clear that individuals objecting to a speaker’s message will almost certainly have a range of alternative avenues of communication available to them to voice their protests, without having to shout down the speech they oppose. Finally, it is difficult to identify a less restrictive means to achieve the goal of making sure speakers are able to communicate to the audience that wants to hear them than prohibiting the obstruction of their speech.
The constitutional permissibility of anti-obstruction regulations does not, of course, mean that government is required to adopt such policies. Adoption of time, place, and manner regulations is discretionary. For example, it is certainly constitutional, and it may make a lot of sense, for a public library to prohibit loud talking by patrons. But nothing in the Constitution requires librarians to make public libraries a quiet place for study and contemplation.
Yet there is an important caveat here (that we flagged in the introduction). While government may choose not to adopt or enforce time, place, and manner regulations, if and when it adopts such measures it cannot discriminate on the basis of viewpoint. Some government entities may condemn the speech of particular speakers and have some sympathy for protestors who attempt to disrupt their speech. If disruption and obstruction of some such speakers is permitted, however, government cannot impose more rigorous time, place, and manner regulations to protect speech that it applauds and supports against interference by different protestors. These constitutionality mandated neutrality requirements may well indirectly pressure a city or university to prohibit the obstruction of speakers. The price of protecting good speakers against obstruction is the obligation to protect bad speakers against obstruction as well.
We note one last issue here that we hope to address in another column. Sometimes the protests directed at a speaker may be so large, volatile and dangerous that protecting the speaker’s ability to give his speech will require an enormous commitment of resources. Hundreds of police may be required to maintain order and security at the event. Is there a point at which the sheer financial cost of enforcing regulations designed to protect a speaker and her audience justifies the government in cancelling an event? If the speaker insists on the right to speak, may government prevent her from doing so to maintain public order and avoid endangering property and persons in the area? And what kind of showing must the government present to justify its actions after the fact if the speaker challenges the government-compelled cancellation of her event on First Amendment grounds. And to the extent the event goes forward, what is a reasonable financial cost for government to ask the organizers of the event to bear, at a time when political strife and non-trivial concerns over weapons and mass injuries have ratcheted up the cost of security?